M/s. R.S. Construction, Raigad V. Joint Commissioner of Income-tax,

ITA 51/PUN/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7246 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 12-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Section: 142(1); 144

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM ITA NO.51/PUN/2016 ASSESSMENT YEAR : 2011-12 M /S. R.S. CONSTRUCTION, KACHERI ROAD, MANGAON, DIST., RAIGAD. PAN : AAKFR0001Q. . / APPELLANT V/S JT.COMMISSIONER OF INCOME TAX, PANVEL RANGE, PANVEL. . / RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK REVENUE BY : SHRI MUKESH JHA, JCIT. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 2, THANE DT.26.10.2015 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE CONSTRUCTION ACTIVITIES. ASSESSEE ELECTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2011-12 ON 30.09.2011 DECLARING TOTAL INCOME OF RS.69,17,350/-. THE CASE WAS SELECTED FOR SCRUTINY. AO IN THE / DATE OF HEARING : 25.10.2017 / DATE OF PRONOUNCEMENT: 31.10.2017 2 ASSESSMENT ORDER HAS NOTED THAT NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED ALONG WITH THE DETAILED QUESTIONNAIRE ON 26.08.2013 INTIMATING THE DATE OF HEARING ON 05.09.2013. AO NOTED THAT NONE APPEARED ON BEHALF OF THE ASSESSEE. HE HAS FURTHER NOTED THAT THEREAFTER ASSESSEE WAS GRANTED OPPORTUNITIES ON VARIOUS DATES TO PRODUCE THE DETAILS AND FURNISH THE REQUIRED INFORMATION BUT NO INFORMATION WAS FURNISHED BY THE ASSESSEE. AO NOTED THAT HE WAS THEREFORE CONSTRAINED TO REJECT THE BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT AND COMPLETE THE ASSESSMENT U/S 144 OF THE ACT. HE ACCORDINGLY VIDE ORDER DATED 04.03.2014 PASSED U/S 144 OF THE ACT DETERMINED THE TOTAL INCOME BY ESTIMATING THE NET PROFIT AT 10% OF THE TURNOVER / RECEIPTS AND ACCORDINGLY DETERMINED THE TOTAL INCOME AT RS.1,40,67,730/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.26.10.2015 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. CIT (A) ERRED IN CONFIRMING INCOME ASSESSED BY AO AT RS.1,40,67,730/- AGAINST RETURNED INCOME RS.69,17,350/-. APPELLANT PRAYS TO DELETE THE ADDITION. 2. HONBLE COMMISSIONER (APPEALS) HAS ERRED IN PASSING THE EX-PARTE ORDER. 3. HONBLE COMMISSIONER (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION MADE AND ESTIMATION OF INCOME. APPELLANT PRAYS TO CANCEL THE ADDITION. 3. BEFORE US LD.A.R. SUBMITTED THAT ASSESSEE COULD NOT ATTEND THE HEARING ON ACCOUNT OF ILL-HEALTH AND FURTHER THE ASSESSEE WAS NOT GRANTED SUFFICIENT OPPORTUNITY OF HEARING BY LD.CIT(A) AND LD.CIT(A) VIDE CRYPTIC ORDER DISMISSED THE APPEAL OF THE ASSESSEE. HE THEREFORE URGED THAT THE ASSESSEE BE GRANTED 3 ONE MORE OPPORTUNITY TO PRESENT ITS CASE AND THE MATTER BE REMITTED BACK. HE FURTHER GAVE AN UNDERTAKING THAT IN CASE THE MATTER IS REMITTED BACK, THE ASSESSEE WOULD CO-OPERATE BY PROMPTLY SUBMITTING ALL THE REQUIRED DETAILS CALLED FOR BY THE AUTHORITIES. LD.D.R. ON THE OTHER HAND, SUBMITTED THAT THE APPROACH OF THE ASSESSEE BEFORE LOWER AUTHORITIES WAS VERY CASUAL AND NON-CO-OPERATIVE. HE SUBMITTED THAT ASSESSEE HAD NOT APPEARED EITHER BEFORE AO AND LD.CIT(A) AND IN SUCH CIRCUMSTANCES, NO INTERFERENCE TO THE ORDER OF LD.CIT(A) IS CALLED FOR AND THE ASSESSEE DOES NOT DESERVE SECOND INNINGS AND OPPOSED THE PRAYER FOR SECOND INNINGS. HE THUS SUPPORTED THE ORDER OF LD.CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE PRESENT CASE, THE ASSESSMENT ORDER WAS PASSED BY THE AO U/S 144 OF THE ACT. WE ALSO FIND THAT BEFORE LD.CIT(A) THERE WAS NON-APPEARANCE OF THE ASSESSEE AND HENCE, LD.CIT(A) PASSED AN EX-PARTE ORDER WHEREIN BY A CRYPTIC ORDER HE DISMISSED THE APPEAL OF ASSESSEE. BEFORE US, LD.A.R. HAS PRAYED THAT THE MATTER BE REMITTED BACK TO AO AND HAS FURTHER GIVEN AN UNDERTAKING THAT IF GIVEN A CHANCE, THE ASSESSEE WILL FURNISH ALL THE REQUIRED DETAILS CALLED FOR BY THE AO. CONSIDERING THE UNDERTAKING GIVEN BY LD.A.R. ON BEHALF OF THE ASSESSEE AND IN THE LARGER INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY. WE THEREFORE RESTORE THE ISSUE BACK TO THE FILE OF AO TO DECIDE THE ISSUE AFRESH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE BY PROMPTLY FURNISHING ALL THE 4 REQUIRED DETAILS CALLED FOR BY AO. IN CASE THE ASSESSEE FAILS TO FURNISH THE REQUIRED DETAILS, THE AO SHALL BE FREE TO PROCEED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND IN ACCORDANCE WITH THE LAW. WITH THESE DIRECTIONS AND WITHOUT DECIDING THE GROUNDS ON MERITS, WE RESTORE THE ISSUE TO THE FILE OF AO. THUS, THE GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 31 ST DAY OF OCTOBER, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 31 ST OCTOBER, 2017. YAMINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-2, THANE. PR.CIT-2, THANE. , , / DR, ITAT, B PUNE; [ / GUARD FILE. / BY ORDER // T // TRUE COPY // COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE.