The ITO, Ward-2, Gudivada V. Sri Narra Madhu Babu, Gudivada

ITA 513/VIZ/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1700 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-10-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 08-10-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Keywords: Set aside

Judgement Text

PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.513/VIZAG/2008 ASSESSMENT YEAR: 2005 - 06 ITO WARD-2, GUDIVADA VS. NARRA MADHU BABU, GUDIVADA (APPELLANT) (RESPONDENT) PAN NO. AAQPN 2890 N APPELLANT BY: SHRI B. JAYA KUMAR, DR, RESPONDENT BY: SHRI D.L. NARASIMHA RAO, CA ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22.07.08 PASSED BY LD CIT (A) VIJAYAWADA AND IT RELATES TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HEREIN IS A TRANSPORT CONTRACTOR. H E FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING A TOTAL INCOME O F RS.2,36,880/- AND AGRICULTURAL INCOME OF RS.45,000/-. HIS CASE WAS SELECTED FOR SCRUTINY AN D THE ASSESSING OFFICER, AFTER MAKING DETAILED INQUIRIES, COMPLETED THE ASSESSMENT BY DET ERMINING THE TOTAL INCOME AT RS.15,83,070/-. THE LD CIT (A) ALLOWED THE APPEAL OF THE ASSESSEE BY STATING THAT THE ISSUES AGITATED BEFORE HIM WERE COVERED BY THE APPELLATE O RDER NO. 368/GDV/CIT(A)06-07 DATED 24.01.08 FOR THE ASSESSMENT YEAR 2004-05 IN THE HAN DS OF THE ASSESSEE. 3. AT THE TIME OF HEARING THE LD DR BROUGHT TO OUR ATTENTION THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2004-05 WAS PASSED BY ESTIMATING TH E TOTAL INCOME AT 5% OF THE GROSS RECEIPTS, I.E., WITH OUT MAKING ANY DETAILED ENQUIR IES. WHEREAS THE IMPUGNED ASSESSMENT HAS BEEN COMPLETED BY THE AO AFTER MAKING DETAILED INQUIRIES. HENCE THE FACTUAL POSITION IN BOTH THE YEARS ARE DIFFERENCE AND HENCE THE ORDER P ASSED BY THE LD CIT (A) FOR THE ASSESSMENT YEAR 2004-05 SHOULD NOT HAVE BEEN STRAIG HT AWAY FOLLOWED BY LD CIT(A) AFTER DISPOSING THE APPEAL OF THE ASSESSMENT YEAR. WE HA VE ALSO HEARD THE LD AR IN THIS REGARD. 4. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE RECORD. THE LD DR ALSO SUBMITTED A COPY OF THE ASSESSMENT ORDER PERTAINING TO THE ASSESSEE FOR THE ASSESSMENT YEAR PAGE 2 OF 2 2004-05. WE NOTICE FROM THE SAID ORDER THAT THE AO THEREIN HAS NOTICED THAT INCOME OF THE ASSESSEE FOR ASSESSMENT YEAR 2001-02R WAS ESTIMATED AT 4.5% OF THE GROSS RECEIPTS AND THE SAME WAS UPHELD BY THE LD CIT (A). THE AO HAS ALSO NOTICED THAT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2003-04 WAS COMPLETED BY FOLLOWING THE ABOVE SAID ORDER BY MAKING SIMILAR ESTIMATE. ACCORDINGLY, THE AO COMPLETED THE ASSESS MENT FOR THE ASSESSMENT YEAR 2004-05 BY ESTIMATING THE INCOME AT 5% OF THE GROSS RECEIPT S. IN EFFECT, THE ASSESSMENT OF EARLIER THREE YEARS REFERRED SUPRA HAS BEEN COMPLETED BY MA KING ESTIMATES. HOWEVER, AS SUBMITTED BY THE LD DR, THE AO HAS COMPLETED THE IMPUGNED ASS ESSMENT BY MAKING DETAILED INQUIRIES. IN VIEW OF THE ABOVE FACTUAL POSITION, WE ARE OF TH E OPINION THAT THERE IS NO SIMILARITY OF THE ISSUES BETWEEN THE ASSESSMENT YEAR 2004-05 AND THE INSTANT ASSESSMENT YEAR. HENCE THE DECISION RENDERED BY LD CIT(A) FOR THE ASSESSMENT Y EAR 2004-05 CANNOT BE FOLLOWED FOR THE IMPUGNED ASSESSMENT YEAR. IN VIEW OF THE FOREGOIN G, WE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE LD CIT (A ) WITH A DIRECTION TO CONSIDER THE ISSUES AFRESH AND PASS A REASONED ORDER. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS TREAT ED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 21.10.2009 SD/ - SD/ - (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 21 ST OCTOBER, 2009. COPY TO 1 THE ITO, WARD - 2, GUDIVADA, KRISHNA DISTT. 2 SHRI NARRA MADHU BABU, PRO. S VKL TRANSPORT CONTRACTORS, 0 - 54 - D - 4 - 2, RAJENDRANAGAR, GUDIVADA, KRISHNA DISTT. 3 THE CIT VIJAYAWADA 4 THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM