Mahananda Electrical Works, Malda V. ITO, WD-2, MALDA, Malda

ITA 453/KOL/2015

• Counselvise Citation: 45323514 RSA 2015
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2015
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS JCIT LD
• Keywords: Opportunity of being heard
• Section: 144; 2

Judgement Text

ITA NO.45 3/KOL/2015 & SP NO. 2 0/KOL/2015-C-AM M/S. MA HANANDA ELECTRICAL WORKS 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH,JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER I.T.A NO. 453/KOL/2015 A.Y. 2008-09 M/S.MAHANANDA ELECTRICAL WORKS VS. I.T.O WARD -2, MALDA PAN:AAOFM0466G (APPELLANT) (RESPO NDENT) S.P NO.20/KOL/2015 [A/O ITA NO.453/KOL/2015 AY 2008-09] M/S.MAHANANDA ELECTRICAL WORKS VS. I.T.O WARD -2, MALDA PAN:AAOFM0466G (APPLICANT) (RESPO NDENT) FOR THE APPELLANT/APPLICANT: SHRI SANTUNU CHAKRAB ORTY, ADVOCATE, LD.AR FOR THE RESPONDENT/DEPARTMENT : SMT. RANU BIS WAS, JCIT, LD.DR DATE OF HEARING: 06-11-2015 DATE OF PRONOUNCEMENT: 06-11-2 015 ORDER SHRI M.BALAGANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDE R OF THE LEARNED CIT(A), JALPAIGURI IN APPEAL NO.29/MLD/CIT(A)/JAL/12-13 DA TED 30-01-2015 FOR THE ASST YEAR 2008-09 PASSED AGAINST THE ORDER OF ASSESSMENT FRAMED BY THE LEARNED AO U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED TO AS THE ACT). 2. THE STAY PETITION CAME UP FOR HEARING ON 6.11.2 015 AND THE LEARNED AR FILED ADJOURNMENT PETITION BEFORE US. THE ADJOURNMENT PE TITION OF THE LEARNED AR FOR STAY PETITION WAS REJECTED AND THE MAIN APPEAL WAS TAKEN UP FOR HEARING WITH THE CONSENT OF BOTH THE PARTIES. ACCORDINGLY THE STAY PETITION F ILED BY THE ASSESSEE IN S.P.NO. 20/KOL/2015 ARISING OUT OF ITA NO.453/KOL/2015 FOR THE A.Y 2008-09 IS DISMISSED. ITA NO.45 3/KOL/2015 & SP NO. 2 0/KOL/2015-C-AM M/S. MA HANANDA ELECTRICAL WORKS 2 3. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS THAT WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED AO IS JUSTIFI ED IN MAKING AN ADDITION OF RS. 1,39,766/- ON ACCOUNT OF RECEIPTS IN CONTRACT WORK AND ESTIMATED NET PROFIT ADDITION OF RS. 3,07,883/- BASED ON 8% OF GROSS TURNOVER. 4. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSES SEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF CONTRACT WORK AND DECLARED TAXABLE INCO ME OF RS. 57,341/- . THE ASSESSEE DID NOT CO-OPERATE WITH THE ASSESSMENT PROCEEDINGS BY FILING NECESSARY EVIDENCES IN SUPPORT OF HIS RETURN OF INCOME AND ACCORDINGLY THE LEARNED AO WAS FORCED TO FRAME AN ASSESSMENT U/S 144 OF THE ACT. THE LEARNED AO E STIMATED THE NET PROFIT @ 8% OF GROSS TURNOVER OF RS. 38,48,534/- AND ACCORDINGLY B ROUGHT TO TAX A SUM OF RS. 3,07,883/- THEREON. THE LEARNED AO ON VERIFICATIO N OF THE TDS CERTIFICATE ISSUED BY SR.DIV.FINANCE MANAGER, N.F.RAILWAY, KATIHAR, THE G ROSS RECEIPT OF THE ASSESSEE WAS MENTIONED AT RS. 39,88,300/- WHEREAS THE ASSESSEE H AD DECLARED GROSS TURNOVER OF RS. 38,48,534/- AND HENCE THE DIFFERENCE OF RS. 1,39,76 6/- WAS BROUGHT TO TAX AS CONCEALED TURNOVER BY THE LEARNED AO. ON FIRST APPEAL, NOBO DY APPEARED BEFORE THE LEARNED CIT(A) AND APPEAL BEFORE THE LEARNED CIT(A) WAS NOT FILED IN TIME. THE LEARNED CIT(A) DECIDED NOT TO CONDONE THE DELAY IN FILING T HE APPEAL BEFORE HIM AND FURTHER PROCEEDED TO DISMISS THE APPEAL OF THE ASSESSEE ON MERITS WITHOUT PASSING ANY SPEAKING ORDER. AGGRIEVED, THE ASSESSEE IS IN APPE AL BEFORE US ON THE FOLLOWING GROUNDS:- 1. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCU MSTANCES THE ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICE R WAS WHOLLY BAD, ILLEGAL, UNJUSTIFIED AND UNCALLED FOR. 2. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER WAS WHOLLY WRONG AND UNJUSTIFIED IN MAKING ARBITRARY ADDITION OF RS.1,39,766/- ON ACCOUNT OF RECEIPTS IN CONTRACT WORK BASE ONLY ON A DEPARTMENT DATA WITHOUT FURTHER VERIFICAT ION OF AUTHENTICITY AND WITHOUT ALLOWING ADEQUATE AND REASONABLE OPPORT UNITY OF HEARING TO THE ASSESSEE AND ALSO WITHOUT REJECTING THE BOOK S OF ACCOUNT DULY AUDITED AS WELL AS THE LD. COMMISSIONER OF INCOME T AX (APPEAL) ITA NO.45 3/KOL/2015 & SP NO. 2 0/KOL/2015-C-AM M/S. MA HANANDA ELECTRICAL WORKS 3 JALPAIGURI ALSO WITHOUT ALLOWING ADEQUATE AND REAS ONABLE OPPORTUNITY OF HEARING THE ASSESSEE HAS DISMISSED THE APPEAL. 3. FOR THAT THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. ASSESSING OFFICER WAS ASSESSED THE STATUS OF THE AS SESSEE WAS TAKEN IN INDIVIDUAL WHEREAS THE CALCULATION OF TAX HAS BEEN MADE AS THAT OF A FIRM. 4. FOR THAT THE LD.AO IS ESTIMATED THE NET PROFIT O F RS.3,07,883/- @ RS.8% OF THE GROSS TURNOVER OF RS.38,48,534/- 5. FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. ASSESSING OFFICER WAS WHOLLY WRONG AND UNJUSTIF IED IN CHARGING INTEREST OF RS.16,677/- OF U/S 234(B). AS THE ASSES SEE WHOLLY DENIES THE LIABILITY TO PAY SUCH INTEREST. 5. THE LEARNED AR ARGUED THAT BOTH THE ASSESSMENT AS WELL AS THE LEARNED CIT(A) ORDERS WERE PASSED EXPARTE AND PRAYED FOR ONE LAST OPPORTUNITY TO PLEAD HIS CASE AND REQUESTED FOR SET ASIDE TO THE FILE OF THE LEARNED AO. IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUT HORITIES AND ARGUED THAT THE CASE SHOULD NOT BE SET ASIDE IN VIEW OF THE NON-COOPERAT IVE ATTITUDE OF THE ASSESSEE RIGHT FROM THE BEGINNING OF THE PROCEEDINGS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND T HAT THE LEARNED CIT(A) HAD DECIDED NOT TO CONDONE THE DELAY IN FILING THE APPE AL BEFORE HIM. HAVING DONE SO, HE OUGHT NOT TO HAVE DISMISSED THE APPEAL ON MERITS AS , BY NOT CONDONING THE DELAY, THE APPEAL BEFORE HIM BECOMES UNADMITTED. THIS ACTION OF THE LEARNED CIT(A) IS NOT APPRECIATED. IN THE FACTS AND CIRCUMSTANCES OF THE CASE , TO MEET THE ENDS OF JUSTICE, WE DEEM IT FIT AND APPROPRIATE TO SET ASIDE THIS AP PEAL TO THE FILE OF THE LEARNED AO, FOR DENOVO ADJUDICATION, AND WE DIRECT THE LEARNED AO TO FRAME THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO D IRECTED TO CO-OPERATE WITH THE ASSESSMENT PROCEEDINGS AND MAKE ALL SUBMISSIONS AND PRODUCE EVIDENCES IN SUPPORT OF HIS RETURN. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NO.45 3/KOL/2015 & SP NO. 2 0/KOL/2015-C-AM M/S. MA HANANDA ELECTRICAL WORKS 4 7. IN THE RESULT, THE STAY PETITION FILED BY THE AS SESSEE IN S.P.NO. 20/KOL/2015 IS DISMISSED AND THE APPEAL OF THE ASSESSEE IN ITA NO. 453 / KOL / 2015 IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 06/11/2 015 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/APPLICANT :M/S. MAHANANDA ELECTR ICAL WORKS C/O BABAR ALI BISWAS MAHESHMATI P.O MALDA DIST MALDA WB PIN 732101. 2 THE RESPONDENT- I T O W-2 < NETAJI MARKET P O & DIST MALDA-732101 3 4. . THE CIT, THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE 06/11 /2015