Sailaja Construction P. Ltd., Hooghly V. DCIT, Circle - 2, Hooghly, Hooghly

ITA 411/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2627 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-02-2010
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Section: 44AD; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'A BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI, J.M. AND HONB LE SRI B.C.MEENA, A.M.) I.T.A. NO. 411 /KOL/2010 ASSESSM ENT YEAR : 2005-06 SAILAJA CONSTRUCTION P. LTD. VS DCIT, CIRCLE-2, HOOGHLY (PAN NO. AASCS 3308 N) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI SOMNATH GHOSH. RESPONDENT BY : SRI PIYUSH K OLHE, SR. D.R. O R D E R PER SHRI B.C.MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)- XXXVI, KOLKATA DATED 24.11.2009 FOR THE ASSESSMEN T YEAR 2005-06. 2. GROUNDS RAISED ARE AS FOLLOWS : 1. FOR THAT THE LD. CIT(A) XXXVI , KOLKATA MISLE D HIMSELF AND PRECIPITATELY ACTED IN UPHOLDING THE ESTIMATED A DDITION OF RS.1,41,000/- RESORTED TO BY THE LD. DEPUTY COMMISSIONER OF IN COME TAX , CIRCLE-2, HOOGHLY APPLYING THE RATE OF 8% ON THE GROSS REC EIPTS ASSUMED AT RS.52,37,706/- RELYIN UPON THE TDS CERTIFICATES WITHOUT CONSIDERING THE SAME IN THE PROPER PERSPECTIVE AND THE PURPORTE D FINDING ON THAT BEHALF IS ABSOLUTELY ARBITRARY, UNWARRANTED AND PERVER SE. 2. FOR THAT THE EX-PARTE ORDER PASSED BY THE LD. CIT(A) XXXVI, KOLKATA IN UPHOLDING THE IMPUGNED ESTIMATED ADDITI ON OF RS.1,41,000/- MADE BY THE LD. DCIT , CIRCLE-2, HOOGHLY IN THE A SSESSMENT ORDER PASSED U/S 144 OF THE INCOME TAX ACT, 1961 BY REJECTING THE STATUTORILY AUDITED ACCOUNTS OF THE APPELLANT WITHOUT POINTING OUT AN Y DEFECT THEREIN IS BAD, UNJUST, IMPROPER, UNFAIR AND CONTRARY TO THE CANO NS OF LAW. 3. FOR THAT THE LD. CIT(A) XXXVI, KOLKATA FAILED TO CONSIDER PROPER ISSUES IN ERRONEOUSLY UPHOLDING THE ESTIMATE, RES ORTED TO BY THE LD. DCIT, CIRCLE 2, HOOGHLY OF THE GROSS RECEIPTS AT RS.5 2,37,706/- AS AGAINST RS.38,74,280/- DISCLOSED BY THE APPELLANT. 3. THE ASSESSEE IS A CIVIL CONTRACTOR. THE A.O. ES TIMATED THE RECEIPTS AT RS.52,37,706 AS AGAINST THE CONTRACT RECEIPTS DEC LARED BY THE ASSESSEE AT RS.38,74,280. THE A.O. INVOKED THE PROVISIONS OF SECTION 44AD AND ESTIMATED THE GROSS PROFIT @ 8% OF THE ESTIMATED RECEIPTS. 2 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LEARNED A.R. SUBMITTED THAT THE CONTRACT RECEIPTS FOR THE YEAR UNDER CONSIDERAT ION WERE OF RS.38,74,280 ONLY. THE A.O. ARBITRARILY ESTIMATED THE RECEIPTS AN D APPLIED THE PROVISIONS OF SECTION 44AD OF THE ACT. HE ALSO PLEADED THAT CE RTAIN RECEIPTS SHOWN IN FORM NO.16A WERE NOT THE INCOME IN THE HANDS OF THE ASS ESSEE. THE CONTRACTEE KOLKATA METROPOLITAN GROUP LTD. HAS GIVEN FUNDS FOR THE PURCHASE OF CERTAIN MATERIALS WHICH ALSO FORMED PART OF 16A FILED I N THE PAPER BOOK AVAILABLE AT PAGE NOS. 25 TO 30. THE ASSESSEE HAS ALSO CLAIME D THAT IT HAD RECEIVED ADVANCES OF RS.12 LAKHS FOR ERECTING SCAFFOLDING . IT IS ALSO CLAIMED THAT THESE ADVANCES HAVE NO NEXUS FOR THE ACTUAL CONTRACT WORK DONE. THE DETAILS OF THE ADVANCES AGAINST THE CONTRACT WORK ARE AS UNDER : DATE RS. ------ ---- 9.12.04 5 LAKHS 3.01.05 2 LAKHS 18.1.05 5 LAKHS IT WAS ALSO PLEADED THAT THE ORDERS PASSED BY T HE AO AS WELL AS BY THE CIT(A) WERE EX PARTE WITHOUT HEARING THE ASSESSEE. IT WA S PLEADED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE A.O. FOR READJU DICATION AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. 5. THE LEARNED D.R. WAS NOT HAVING ANY OBJECTIO N TO THIS PROPOSITION. 6. AFTER HEARING BOTH THE SIDES AND CONSIDERING TH E MATERIALS PLACED BEFORE US , WE DEEM IT FIT TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMAND THE MATTER TO THE FILE OF THE A.O. WE DIRECT THE A.O. TO REASSESS THE INCOME AFTER PROVIDING ADEQUATE OPPORTUNITIES TO THE ASSESSE E. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.04.2010 (D.K.TYAGI) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30.04.2010 3 COPY FORWARDED TO :- 1) DCIT, CIRCLE 2, HOOGHLY. 2) SAILAJA CONSTRUCTION P. LTD., C/O ADVOCATE SHR I SOMNATH GHOSH, SEBEN BROTHERS LODGE , P.O. BUROSHIBTALA, P.S. CHINSU RAH, DIST. HOOGHLY. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. BY ORDER ASSISTA NT REGISTRAR I.T.AT., KOLKATA. BCD