DHARMENDRA KUMAR CONTRACTOR, MUZAFFARNAGAR V. ITO, WARD- 1(2), MUZAFFARNAGAR

ITA 4431/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3962 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: PREM PRAKASH; ASHISH AGARWAL ADV S

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN , ACCOUNTANT MEMBER ITA NO. 4431 / DEL /20 17 ASSESSMENT Y EAR 20 10 - 11 DHARMENDRA KUMAR CONTRACTOR, MUZAFFARNAGAR PAN - AADFD4950H VS. ITO, WARD - 1( 2 ) MUZAFFARNAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PREM PRAKASH & SH. ASHISH AGARWAL , ADV S RESPONDENT BY : SH. T. VASANTHAN, SR. DR / DATE OF HEARING : 0 4 / 10 / 201 7 / DATE OF PRONOUNCEMENT: 05 /10 / 201 7 ORDER PER B.P. JAIN, A.M. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF L EARNE D CIT(A), MUZAFFARNAGAR , VIDE ORDER DATED 18 . 0 5 . 2017 FOR THE ASSESSMENT YEAR 2010 - 1 1 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL : - 1 ) THAT THE ORDER IS AGAINST LAW & FACTS ON THE RECORD. 2 ) LD. CIT(A) WAS WRONG IN CONFIRMING NET PROFIT @ 8% AS AGAINST N.P OF 5.15% WITHOUT ANY BASE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TRANSPORT CONTRACTOR. THE ASSESSEE HAS DECLARED A NET PROFIT RATE OF 5.15%. THE BOOKS OF ACCOUNT WERE REJECTED WHICH WERE NOT CHALLENGE D BY THE ITA NO. 4431 /DEL/201 7 2 ASSESSEE. THE AO APPLIED A PROFIT RATE OF 8% WHICH WAS CONFIRMED BY THE LEARNED CIT(A). 3. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE AS REGARDS THE INVOKING OF PROVISIONS OF SECTION 145(3) OF THE ACT. AS REGARDS THE APPLICATION OF NET PROFIT RATE THE PAST RESULTS ARE THE BEST GUIDE AND IN THE ABSEN CE OF ANY COMPARABLE CASE BROUGHT ON RECORD BY THE AO , T HE NET PROFIT RATE APPLICABILITY @ 8% IS NOT JUSTIFIED. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE MATTER IS SET ASIDE TO THE FILE OF THE AO WHO WILL APPLY THE AVERAGE NET PROFIT RATE DECLARED OF PRECEDING FIVE YEARS. THE ASSESSEE IS DIRECTED TO COOPERATE IN THE PROCEEDINGS. THE CA SE BEFORE THE AO IS DIRECTED TO BE FIX ED ON 30.11.2014 ON WHICH DATE THE ASSESSEE WILL NOT SEEK THE ADJOURNMENT AND THE AO SHALL DECIDE THE ISSUE AS DIRECTED HEREINABOVE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THUS THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 4431 /DEL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.10.2017 . SD/ - ( B.P. JAIN ) ACCOUNTANT MEMBER DATED: 05 / 10 /201 7 SH ITA NO. 4431 /DEL/201 7 3 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSTT. R EGISTRAR, ITAT, NEW DELHI ITA NO. 4431 /DEL/201 7 4 SL. NO. PARTICULARS DATE 1. DATE OF DICTATION 2. DATE ON WHICH THE DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. DRAFT PLACED BEFORE THE OTHER MEMBER 4. APPROVED DRAFT COMES TO THE SR. PS/PS 5. KEPT FOR PRONOUNCEMENT ON 6. FINAL ORDER RECEIVED AFTER PRONOUNCEMENT 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILES GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR 10. DATE OF DISPATCH OF ORDER ITA NO. 4431 /DEL/201 7 5