Asstt. Commissioner of Income Tax, GONDA V. M/s. Hindustan Construction, Bahraich

ITA 490/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83397 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-09-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

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.490/LKW/2013 ASSESSMENT YEAR:2010 - 11 M/S HINDUSTAN CONSTRUCTION, PYAREPUR, KAISARGANJ, BAHRAICH. PAN:AAEFH5661G VS. A.C.I.T., CIRCLE - GONDA. (RESPONDENT) (APPELLANT) SHRI ALOK MITRA, D. R. APPELLANT BY NONE RESPONDENT BY 30/09/2014 DATE OF HEARING 11 /1 1 /2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 05/04/2013 FOR THE ASSESSMENT YEAR 2010 - 11. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING INSPITE OF NOTICE AND HENCE, WE PROCEED TO DECIDE THIS APPEAL OF THE ASSESSEE EX - PARTE QUA THE ASSESSEE. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CST VS ESUFALI (H.M.) ABDULALI (H.M.) [1973] 90 I TR 271 (SC). 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IN THE PRESENT CASE, THE ISSUE IN DISPUTE HAS 2 BEEN DECIDED BY LEARNED CIT(A) AS PER PARA 4(9) OF HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 4(9) FOLLOWING THE DECISION OF HON'BLE ITAT, LUCKNOW SUPRA, I FIND (HAT THE COMPARATIVE POSITION OF THE FINANCIAL - 'STATEMENTS OF THE ASSESSEE FOR EARLIER YEARS AND CURRENT YEAR IS AS UNDER - ASSESSMENT YEAR 2010 - 2011 ASSESSMENT YEAR 2009 - 2010 PARTICULARS RS. 8,80,31,347 - RS. 6,48,17,3347 - GROSS RECEIPT 5% 4.75% RATE OF PROFIT IT IS APPARENT THAT THE TURNOVER OF THE APPELLANT HAS GONE DOWN BUT THE PROFIT RATE BEFORE ALLOWING INTEREST AND SALARY TO PARTNERS HAS SHOWN A SLIGHT INCREASE IN THE CURRENT YEAR AS COMPARED TO IMMEDIATELY PRECEDING YEAR. I FIND THAT THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2009 - 2010 WAS PASSED UNDER SECTION 143(3) OF THE ACT ON 31.10.2011 MAKING AN ADDITION OF RS. 2,15,000/ - TO THE INCOME SHOWN IN THE RETURN OF INCOME. THE ADDITION SO MADE RESULTS IN ESTIMATION OF INCOME @5.25% OF THE TURNOVER. TAKING TO TALITY OF THE CIRCUMSTANCES INTO CONSIDERATION I FIND IT REASONABLE TO CONFIRM ESTIMATION OF INCOME OF THE APPELLANT @5.25%. 4.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT CIT(A) HAS FOLLOWED A TRIBUNAL DECISION OF LUCKNOW BENCH IN THE C ASE OF M/S TEJ PRATAP SINGH VS. INCOME TAX OFFICER IN I.T.A. NO.330/L/09 DATED 30/10/2009, RELEVANT PARA OF WHICH HAS BEEN REPRODUCED ON PAGE NO. 5 & 6 OF HIS ORDER. AFTER FOLLOWING THIS TRIBUNAL DECISION, IT IS NOTED THAT IN THE PRECEDING YEAR I.E. ASSES SMENT YEAR 2009 - 10, THE RATE OF PROFIT DECLARED BY THE ASSESSEE IN THE ASSESSMENT YEAR 2009 - 10 WAS 5% AS COMPARED TO 4.75% IN THE YEAR UNDER CONSIDERATION. CONSIDERING THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). REGARDING THE JUDGMENT CITED BY LEARNED D.R. OF THE REVENUE, WE FIND THAT IN THIS CASE, THE ISSUE IN DISPUTE WAS THAT AS TO WHETHER ON THE BASIS OF SALES 3 FOR 90 DAYS NOT ENTERED IN THE ACCOUNTS BOOKS, WHETHER THE ASSESS ING OFFICER CAN ESTIMATE THE ESCAPED TURNOVER FOR THE WHOLE YEAR. THERE IS NO SUCH DISPUTE IN THE PRESENT CASE. IT WAS HELD BY HON'BLE APEX COURT THAT THE ASSESSING AUTHORITY WHILE MAKING BEST JUDGMENT ASSESSMENT, NO DOUBT, SHOULD ARRIVE AT HIS CONCLUSIO N WITHOUT ANY BIAS AND ON A RATIONAL BASIS. IT IS ALSO HELD THAT THE AUTHORITY SHOULD NOT BE VINDICTIVE OR CAPRICIOUS. IT WAS HELD THAT IF THE ESTIMATE MADE BY THE ASSESSING AUTHORITY IS A BONA FIDE ESTIMATE AND IS BASED ON A RATIONAL BASIS, THE FACT THA T THERE IS NO GOOD PROOF IN SUPPORT OF THAT ESTIMATE IS IMMATERIAL. IN THE PRESENT CASE, WE FIND THAT THE CIT(A) HAS ADOPTED REASONABLE BASIS BEING THE RATE OF PROFIT OF THE PRECEDING YEAR I.E. ASSESSMENT YEAR 2009 - 10 AND AS AGAINST THAT PROFIT FOR THAT Y EAR OF 5%, HE HAS ESTIMATED THE PROFIT IN THE PRESENT YEAR AT 5.25% AND WHILE DOING SO, CIT(A) HAS FOLLOWED A TRIBUNAL DECISION CITED BEFORE HIM. CONSIDERING ALL THESE FACTS, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A) BECAUSE THIS JUDGMENT OF HON'BLE APEX COURT IS NOT RENDERING ANY HELP TO THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /11/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. T HE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR