ITO, Karnal V. Sh. Rajesh Kumar Prop., Karnal

ITA 4566/DEL/2011

• Counselvise Citation: 456620114 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 13-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Keywords: Deemed to accrue or arise in india
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T.A. NO.4566/DEL/2011 ASSESSMENT YEAR : 2008-09 INCOME-TAX OFFICER, SHRI RAJESH KUMAR PROP. WARD-4, KARNAL. VS. M/S. SHIV SHAKTI TRADING CO., NAI ANAJ MANDI, INDRI (KARNAL). PAN : ADNPK5057H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATPAL SING H, SR. DR. RESPONDENT BY : NONE. DATE OF HEARING : 10-12-2012 DATE OF PRONOUNCEMENT : 10-12-2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 3 RD AUGUST, 2011 PASSED BY THE LEARNED FIRST APPELLATE AUTHORIT Y, KARNAL ON THE GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW B ENEFIT OF TELESCOPING OF ITA NO.4566/DEL/2011 2 ADDITION OF RS.14,95, 870/- ON ACCOUNT OF UNEXPLAIN ED CASH CREDITS APPLYING THE NET PROFIT RATE OF 8% TO THE CONTRACT RECEIPT W ITHOUT APPRECIATING THE FACT THAT THE IMPUGNED SUM WAS HELD AS DEEMED INCOME UND ER SEC.68 OF THE INCOME-TAX ACT, 1961 (THE ACT) IGNORING THE FACT TH AT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE AND GENUINENESS OF SUNDRY CREDIT S AND FURTHER ERRED IN ALLOWING THE TELESCOPING WITHOUT EXAMINING THE DATE AND AMOUNT OF HIS CREDIT. 2. DURING THE HEARING OF THIS APPEAL WE HAVE HEARD SHRI SATPAL SINGH, LEARNED SR. DR WHEREAS NOBODY IS PRESENT FOR THE AS SESSEE. THE LEARNED SR. DR ADVANCED HIS ARGUMENT WHICH IS IDENTICAL TO THE GROUND RAISED BY SUPPORTING THE ADDITION MADE BY THE AO. WE FIND TH AT ON 8.10.2012 WHEN THE APPEAL WAS FIXED FOR HEARING, THE ASSESSEE APPE ARED IN PERSON AND THE APPEAL WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE . TODAY AT THE TIME OF HEARING THE ASSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IN SUCH A SITUATION WE HAVE NO OPTION BU T TO DECIDE THIS APPEAL EX PARTE QUA ASSESSEE THAT TOO ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D SR. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S IN BRIEF ARE THAT THE ASSESSEE IS A CIVIL CONTRACTOR DECLARED INCOME OF R S.1,52,210/- IN HIS RETURN FILED ON 30.09.2008 WHICH WAS PROCESSED AS SUCH. L ATER ON THE CASE WAS ITA NO.4566/DEL/2011 3 TAKEN UP FOR SCRUTINY AND THE ASSESSEE WAS ASKED TO PRODUCE THE BOOKS OF ACCOUNTS ALONG WITH VOUCHERS. AS PER THE REVENUE T HE NECESSARY DETAILS WERE NOT PRODUCED. ULTIMATELY THE ASSESSMENT WAS FRAMED UNDER SEC. 144 OF THE ACT AND THE NET PROFIT WAS APPLIED @ 12% OF THE GROSS RECEIPTS. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LE ARNED CIT(A) WHERE THE ASSESSEE FILED WRITTEN SUBMISSIONS WHICH HAVE BEEN EXTRACTED IN THE IMPUGNED ORDER. WE FIND THAT THE ADDITION WAS MADE BY THE AO BY ESTIMATING THE INCOME BY APPLYING THE NET PROFIT RA TE AT 12%. THE APPLICATION OF RATE PROFIT WAS CHALLENGED BEFORE TH E LEARNED CIT(A) WHO AFTER CONSIDERING THE TOTALITY OF FACTS ESTIMATED T HE NET PROFIT RATE AT 8% AND GAVE PART RELIEF TO THE ASSESSEE, WHICH IS UNDER CH ALLENGE BEFORE THIS TRIBUNAL. WE FURTHER FIND THAT WHILE COMING TO A C ONCLUSION THE LEARNED CIT(A) CONSIDERED THE DECISION OF THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. PRABHAT KUMAR, CIT VS. CHOPRA B ROS. [252 ITR 412 (P&H)]. KEEPING IN VIEW THE TOTALITY OF FACTS AVAI LABLE ON RECORD AND THE FINDING RECORDED IN THE IMPUGNED ORDER AND MORE SPE CIFICALLY WHEN NO ADVERSE MATERIAL WAS BROUGHT TO OUR NOTICE BY THE R EVENUE, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN IN THE IMPUGNED O RDER. THEREFORE, THERE IS NO MERIT IN THE APPEAL OF THE REVENUE. THE STAND O F THE LEARNED CIT(A) IS AFFIRMED. ITA NO.4566/DEL/2011 4 4. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. 5. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF THE LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONC LUSION OF THE HEARING ON 10 TH DECEMBER, 2012. SD/- SD/- ( B.C. MEENA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH DECEMBER, 2012. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.