RAMESHWAR PRASAD TYAGI, Jaipur V. ITO, JHALAWAR

ITA 488/JPR/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1971 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 03-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Assessee Lawyers: NIKHILESH KATARIA
• Keywords: Depreciation
• Section: 145

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 488/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SHRI RAMESHWAR PRASAD TYAGI, PROP. TYAGI CONSTRUCTION, JHALAWAR. CUKE VS. THE INCOME TAX OFFICER, JHALAWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AATPT 9682 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI NIKHILESH KATARIA, CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/10/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 03/11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT (A) KOTA DATED 22.02.2013. THE FOLLOWING GROUNDS ARE RAISED :- 1. THE LD. CIT (A) ERRED IN LAW AS WELL AS ON THE FACT S OF THE PRESENT CASE IN CONFIRMING THE ACTION OF THE LD. AO IN INVOKING OF PROVISIONS OF SECTION 145 OF THE ACT. 2. THE LD. AO ERRED IN LAW AS WELL AS ON THE FACTS OF THE PRESENT CASE IN APPLYING N.P. RATE OF 10% ON TOTAL CONTRACT RECEIPT OF THE ASSESSEE AS AGAINST 7.49% DECLARED BY THE ASSESSEE. 2.1. THE LD. CIT (A) ERRED IN LAW AS WELL AS ON THE FACT S OF THE PRESENT CASE IN ENHANCING THE TRADING ADDITION MADE BY THE AO. 2 ITA NO. 488/JP/2013 A.Y. 2006-07. RAMESHWAR PRASAD TYAGI VS. ITO JHALAWAR. 2.2. THE LD. CIT (A) ERRED IN LAW AS WELL AS ON THE FACT S APPLYING N.P. RATE @ 12% ON TOTAL CONTRACT RECEIPTS DECLARED BY T HE ASSESSEE AS AGAINST 7.49% DECLARED BY THE ASSESSEE. 2.3. WITHOUT PREJUDICE TO ABOVE, THE LD. CIT (A) ERRED I N LAW AS WELL AS ON THE FACTS OF THE PRESENT CASE IN CONFIRMING THE ACTION OF THE AO IN NOT ALLOWING OF DEPRECIATION AFTER APPLICATION O F N.P. RATE. 2. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT A SSESSEE IS A CIVIL CONTRACTOR, MAINTAINS BOOKS OF ACCOUNT. THE SAME WERE REJECTED WITHOUT ASSIGNING REASONS AND MERELY BY HOLDING THAT STOCK REGISTER FOR CONSUMPTI ON OF MATERIAL WAS NOT MAINTAINED. THE AO ESTIMATED THE NET PROFIT @ 10% AND DID NOT A LLOW DEPRECIATION ON VEHICLES. 3. ASSESSEE FILED FIRST APPEAL, WHERE THE INCOME WA S ENHANCED BY APPLYING NET PROFIT RATE @ 12%. 4. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT O NCE BOOKS OF ACCOUNT ARE REJECTED AND ESTIMATE WAS MADE, THE HIGHER AUTHORIT Y SHOULD ALLOW SOME RELIEF. IN THIS CASE, HOWEVER, WITHOUT DEMONSTRATING THAT THE ESTIM ATE ARRIVED AT BY THE AO WAS IN ANY WAY ARBITRARY OR CAPRICIOUS, THE SAME HAS BEEN ENHANCED. THEREFORE, THE ACTION OF ENHANCEMENT IS UNJUSTIFIED. 4.1. THE LD. COUNSEL FURTHER CONTENDS THAT INTEREST OF JUSTICE SHOULD BE MADE SERVED, IF THE ENHANCEMENT AS MADE BY THE LD. CIT (A) IS RE DUCED AND THE ADDITION MADE BY THE AO IS RESTORED, THE LD. COUNSEL SUBMITTED THAT IN T HAT CASE THE OTHER GROUNDS SHOULD NOT BE PRESSED BY THE ASSESSEE. 5. THE LD. D/R SUPPORTED THE ORDER OF THE LD. CIT ( A). 3 ITA NO. 488/JP/2013 A.Y. 2006-07. RAMESHWAR PRASAD TYAGI VS. ITO JHALAWAR. 6. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE M ATERIAL ON RECORD. FROM THE ORDER OF LD. CIT (A), IT IS EMERGED THAT LD. CIT (A ) HAS ACTED WITHOUT ANY BASIS, ARBITRARY AND CAPRICIOUS MANNER. THE SAME WAS NOT BASED ON A NY COMPARATIVE INSTANCES. IN MY CONSIDERED VIEW, ASSESSEES PLEA OF RESTORING THE A OS ORDER DESERVES TO BE ACCEPTED. IN VIEW THEREOF ENHANCEMENT OF INCOME AS MADE BY TH E LD. CIT (A) IS DELETED AND THE ORDER OF AO IS RESTORED. 7. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 3/11/2015. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 3/11/ 2015 DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAMESHWAR PRASAD TYAGI, JHALAWA R. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, JHALAWAR. 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.488/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR