Mohd. Asif, Lucknow V. Income Tax Officer-3(2), Lucknow

ITA 44/LKW/2014

• Counselvise Citation: 4423714 RSA 2014
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: MOHD ABDUL MANNAN
• Keywords: Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.44/LKW/2014 ASSESSMENT YEAR:2009 - 10 MOHD. ASIF, E - 1/7, SECTOR B, ALIGANJ, LUCKNOW. PAN:ACAPA6839M VS. INCOME TAX OFFICER - 3(2), LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY MOHD. ABDUL MANNAN, ADVOCATE RESPONDENT BY SHRI AJAY KUMAR, D.R. DATE OF HEARING 2 8 /02/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT ( A) - I , LUCKNOW DATED 2 5 /1 0 /2013 FOR ASSESSMENT YEAR 2009 - 10 . 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE NO PRELIMINARY NOTICE U/S 1 43 (2) OF THE INCOME TAX ACT 1961 WAS SERVED UPON THE ASSESSEE. 2. BECAUSE THE FACT, THAT ASSESSEE FULLY CO - OPERATED WITH THE PROCEEDINGS BEFORE AO AND SUBMITTED AUDITED BALANCE SHEET AND PROFIT & LOSS ACCOUNT, THE LD. AO AND CIT (A) - L FAILED TO APPRECIAT E THE ACCOUNTS OF THE ASSESSEE. 3. BECAUSE THE ESTIMATING THE INCOME OF THE ASSESSEE IN PRESENCE OF AUDITED ACCOUNTS THE INCOME TAX AUTHORITIES WERE WRONG IN ESTIMATING THE INCOME. 2 4. BECAUSE THE AO FAILED TO PROVIDE A REASONABLE OPPORTUNITY OF BEING HEA RD. 5. BECAUSE THE LD. CIT (APPEALS) - 1 NEITHER HIMSELF EXAMINED THE BOOKS OF ACCOUNTS NOR HE REMANDED THE CASE TO AO FOR THIS PURPOSE. 6. BECAUSE THE LD. CIT (APPEALS) - 1 WAS WRONG IN NOT ALLOWING EXEMPTION OF AGRICULTURAL INCOME AMOUNTING TO RS.2,80,000 / - WHICH THE ASSESSEE RECEIVED FROM THE BUYERS OF HIS MANGO CROPS. 7. BECAUSE THE AO AND CIT (APPEALS) - L WERE WRONG IN NOT ALLOWING DEDUCTION UNDER CHAPTER VI - A DESPITE HAVING CLEAR PROOF ON RECORD. 8. BECAUSE THE ORDER OF LD. CIT (APPEALS) - L IS BAD IN LAW AND ON FACTS AND DESERVE TO BE REJECTED. 9. BECAUSE IF THE APPELLANT ASSESSEE IS NOT GIVEN THE RELIEF IT WILL BE AGAINST LAW AND NATURAL JUSTICE. 3. REGARDING GROUND NO. 1, THE LEARNED A.R. OF THE ASSESSEE COULD NOT ESTABLISH THAT NOTICE U/S 14 3 ( 2 ) WAS NOT SERVED ON THE ASSESSEE BECAUSE A CLEAR FINDING IS GIVEN BY THE ASSESSING OFFICER THAT NOTICE U/S 143 (2) WAS ISSUED AND PROPERLY SERVED UPON THE ASSESSEE AND IN COMPLIANCE OF THESE NOTICES , SHRI SUBODH KUMAR SRIVASTAVA ATTENDED ON BEHALF OF ASSESSEE FROM TIME TO TIME. ACCORDINGLY, THIS GROUND IS REJECTED. 4. REGARDING MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER BY APPLYING RATE OF 8% OF GROSS RECEIPTS, IT WAS SUBMITTED THAT THE SAME IS EXCESSIVE BECAUSE THE RECEIPTS OF THE ASSESSEE ARE RS.188.27 LAC. AT THIS JUNCTURE , IT WAS OBSERVED BY THE BENCH AS TO WHEN THE ASSESSEE HAS NOT FURNISHED BOOKS OF ACCOUNT THEN THE ONLY COURSE LEFT WITH THE ASSESSING OFFICER IS TO ESTIMATE THE INCOME OF T HE ASSESSEE THEN WHY THE SAME SHOULD NOT BE ESTIMATED AT 8%. IN REPLY, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE SAME IS EXCESSIVE BECAUSE 8% IS PRE ESCRIBED FOR SMALLER TURNOVER OF RS.40 LAC AND LESS. 3 5. REGARDING THE NEXT ISSUE I.E. AGRI CULTURAL INCOME DISCLOSED AT RS.2.80 LAC S , IT WAS SUBMITTED THAT THE ASSESSEE WAS HAVING SUFFICIENT AGRICULTURAL LAND AND THE COPY OF KHASRA AND KHATAUNI WERE PRODUCED BEFORE THE ASSESSING OFFICER AS HAS BEEN NOTED BY THE ASSESSING OFFICER. HE ALSO SUBMIT TED THAT THE RECEIPTS OF SOME PERSONS WERE PROVIDED WHO STATED THAT THEY HAVE PURCHASED MANGO FOR AN AMOUNT OF RS.90,000/ - EACH. HE SUBMITTED THAT CONSIDERING THESE FACTS, THE ASSESSEES CLAIM SHOULD BE ACCEPTED. 6. AS AGAINST THIS, LEARNED D.R. OF THE R EVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT THE ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNT IN RESPECT OF CONTRACT BUSINESS AND, THEREFORE, HIS INCOME HAS TO BE ESTIMATED BUT IN OUR CON SIDERED OPINION, ESTIMATING THE INCOME AT 8% IS EXCESSIVE IN THE FACTS OF THE PRESENT CASE AND THEREFORE, WE HOLD THAT THE INCOME OF THE ASSESSEE SHOULD BE ESTIMATED AT 6% OF THE GROSS RECEIPTS. IN THIS MANNER THE ASSESSEE GETS PART RELIEF IN RESPECT OF Q UANTUM OF INCOME ASSESSED BY THE ASSESSING OFFICER ON ACCOUNT OF CONTRACT BUSINESS . 8. REGARDING THE CLAIM OF THE ASSESSEE IN RESPECT OF AGRICULTURAL INCOME OF RS.2.80 LAC, WE HOLD THAT IN THE FACTS OF THE PRESENT CASE WHEN THE ASSESSEE HAS FURNISHED COPY OF KHASRA & KHATAUNI ETC. BEFORE THE ASSESSING OFFICER, WHICH ARE AVAILABLE ON PAGE NOS . 10 TO 20 OF THE PAPER BOOK ALSO, THE CLAIM OF THE ASSESSEE REGARDING AGRICULTURAL INCOME DESERVES TO BE ACCEPTED CONSIDERING THE FACTS OF THE CASE. WE HOLD ACCORDINGLY. THIS GROUND OF THE ASSESSEE IS ALLOWED. 9. REGARDING THE NEXT ISSUE I.E. NOT ALLO WING DEDUCTION UNDER CHAPTER VI - A, WE FIND THAT THIS CLAIM WAS REJECTED BY THE AUTHORITIES BELOW ON THE 4 GROUND THAT THE ASSESSEE HAS NOT FURNISHED ANY PROOF IN THIS REGARD. SINCE NO SUCH PROOF IS BROUGHT ON RECORD BEFORE US ALSO, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE. 10. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDI CIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /04/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR