The ITO, Ward-9(4), Ahmedabad V. Shri Khemaram N.Chaudhary, Ahmedabad

ITA 56/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94422 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: K M MEHTA
• Keywords: Presumptive income; Depreciation
• Section: 143(3); 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE S/SHRI KUL BHARAT, JM, & MANISH BORAD, A M. ITA NOS.462/AHD/2011 ASST. YEAR 2007-08 & ITA NO.56/AHD/2013 ASST. YEAR 2009-10 INCOME-TAX OFFICER, WARD -9(4), AHMEDABAD. VS. SHRI KHEMARAM N. CHAUDHARY, B-29, PUSHP CO-OP. HOUSING SOCIETY, NR. MONY HOTEL, ISANPUR, AHMEDABAD. APPELLANT RESPONDENT AND ITA NO.476/AHD/2011 ASST. YEAR 2007-08 SHRI KHEMARAM N. CHAUDHARY, B-29, PUSHP CO-OP. HOUSING SOCIETY, NR. MONY HOTEL, ISANPUR, AHMEDABAD. VS. INCOME-TAX OFFICER, WARD -9(4), AHMEDABAD. APPELLANT RESPONDENT PAN - ACJPC 2046 B REVENUE BY SHRI ALBINUS TIRKEY, SR.DR ASSESSEE BY SHRI K. M. MEHTA, AR DATE OF HEARING: 3.9.2015 DATE OF PRONOUNCEMENT: 11/09/2015 ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 2 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. APPEAL IN ITA NO.462/AHD/2011 FOR AY 2007-08 HAS B EEN FILED BY THE REVENUE AND APPEAL IN ITA NO.476/AHD/2011 FO R ASST. YEAR 2007-08 HAS BEEN FILED BY THE ASSESSEE BOTH AGAINST THE ORDER OF CIT(A) XV, AHMEDABAD, VIDE ORDER DATED 10 TH DECEMBER, 2010, AND APPEAL IN ITA NO.56/AHD/2013 FOR AY 2009-10, HAS BE EN FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) XV, AHMEDABAD V IDE HIS ORDER DATED 4 TH OCTOBER, 2012. SINCE ALL THESE THREE APPEALS PERTA IN TO THE SAME ASSESSEE, THESE WERE HEARD TOGETHER AND ARE BE ING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF C ONVENIENCE. 2. FIRST WE WILL DEAL WITH THE APPEAL IN ITA NO.462 /AHD/2011 FOR ASST. YEAR 2007-08 (REVENUES APPEAL) ON THE FOLLOW ING GROUNDS :- 1. THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE ADDITION OF RS.40,89,000/- MADE BY THE ASSESSING OFFICER BY ESTIMATING GROSS PROFIT ON THE GROUND TH AT THE ASSESSEE OWNS MORE THAN 10 TRUCKS. 2. ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF TH E AO. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) XV, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE FILED HIS RETURN OF INCOME ON 26.3.2008 DECLARING TOTAL I NCOME OF RS.2,52,250/- UNDER THE PROVISIONS OF SECTION 44AE. HOWEVER, THE ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 3 ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE A CT BY THE AO ASSESSING THE INCOME AT RS.48,57,248/-. THE ASSESSE E IS INVOLVED IN THE BUSINESS OF PLYING OF GOODS CARRIAGES OWNED BY HIM. AS PER THE SUBMISSIONS MADE BEFORE THE AO THE ASSESSEE HAS STA TED THAT AS HE WAS NOT OWNING MORE THAN 10 GOODS CARRIAGES AT ANY TIME DURING THE YEAR, HE WAS COVERED WITHIN THE PROVISIONS OF SECTI ON 44AE AND HAS FILED HIS RETURN OF INCOME AT RS.4,13,000/-, ARRIVE D ON THE BASIS OF USE OF TRUCKS FOR THE NUMBER OF MONTHS IN THE YEAR. WHE REAS DURING THE ASSESSMENT PROCEEDINGS THE AO CAME TO THE CONCLUSIO N THAT THE ASSESSEE WAS OWNING MORE THAN TEN TRUCKS, AND THER EFORE, ASSESSEE WAS NOT COVERED BY THE PROVISIONS OF SECTION 44AE O F THE ACT AND IN THE RESULT ESTIMATED THE INCOME OF THE ASSESSEE BY APPLYING G.P. RATE OF 25% ON THE GROSS RECEIPT OF RS.2,00,00,000/- (AS PER DETAILS GIVEN BY THE ASSESSEE) AND WORKED OUT INCOME OF RS.50,00, 000/- AND ASSESSED ACCORDINGLY. 4. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE CI T(A) WHO ALSO CONFIRMED THAT ASSESSEE WAS USING MORE THAN TEN TRU CKS AND SECTION 44AE WAS NOT APPLICABLE. HOWEVER, THE CIT(A) UPHELD ADDITION OF RS.9,01,000/- THEREBY DIRECTING TO DELETE THE BALAN CE. 5. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE T RIBUNAL. THE LD. DR RELIED ON THE ORDER OF AO AND ASSERTED THAT THE ASSESSEE WAS IN USE OF MORE THAN TEN TRUCKS BECAUSE THE ASSESSEE HAS HIMSELF GIVEN LIST OF 12 TRUCKS BEING USED FOR PLYING OUT O F WHICH 8 TRUCKS WERE USED FOR 12 MONTHS AND REMAINING 4 TRUCKS FOR PART OF THE MONTHS. THE LD. DR ALSO SUBMITTED THAT THERE WERE TWO TRUCK S WHICH WERE NOT ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 4 OWNED BY THE ASSESSEE BUT THE LOANS ON THESE TWO TR UCKS WERE CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE AND, T HEREFORE, THEY WERE ALSO USED BY THE ASSESSEE. 6. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE GA VE DETAILED WORKING ABOUT EACH TRUCK ALONG WITH COPIES OF REGIS TRATION CERTIFICATES, BANK STATEMENTS AND PROOF OF TRANSFER OF TRUCKS SOL D IN ITS PAPER BOOK. THE LD. AR ALSO FURNISHED A CHART OF THE TRUC KS USED BY THEM WHICH WAS FURNISHED BEFORE THE AO ALSO AT THE TIME OF ASSESSMENT PROCEEDINGS. SL.NO. REGISTRATION NO. OF TRUCK NO. OF MONTHS USED INCOME 1 GJ/1/AT/8742 12 42,000 2 GJ/1/AT/5835 12 42,000 3 GJ/1/AT/2829 12 42,000 4 GJ/1/AT/6087 12 42,000 5 RJ/21/GA/0678 12 42,000 6 RJ/21/GA/0876 12 42,000 7 RJ/21/GA/0894 12 42,000 8 RJ/21/GA/0885 12 42,000 9 GJ/1/AT/6159 9 31,500 10 RJ/21/GA/1124 8 28,000 11 RJ/07/G/4005 3 10,500 12 GJ/1/UU/8742 2 7,000 TOTAL 4,13,000 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE ALONG WITH PAPER BOOK SUBMITTED BY ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 5 THE REVENUE AS WELL AS BY THE LD. AR ALONG WITH JUD ICIAL PRONOUNCEMENTS. NUCLEUS OF THE ISSUE IS WHETHER THE ASSESSEE IS COVERED WITHIN THE PROVISIONS OF SECTION 44AE OR NO T. TO EXAMINE THIS ASPECT LET US GO THROUGH THE RELEVANT PORTION OF PR OVISION OF SECTION 44AE OF THE ACT, WHICH READS AS UNDER :- SEC. 44AE (1) NOTWITHSTANDING ANYTHING TO THE CON TRARY CONTAINED IN SECTION 28 TO 43C, IN THE CASE OF AN ASSESSEE, WHO OWNS NOT MO RE THAN TEN GOODS CARRIAGES, [AT ANY TIME DURING THE PREVIOUS YEAR] A ND WHO IS ENGAGED IN THE BUSINESS OF PLYING, HIRING OR LEASING SUCH GOODS CA RRIAGES, THE INCOME OF SUCH BUSINESS CHARGEABLE TO TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION SHALL BE DEEMED TO BE THE AGGREGATE OF THE PROFITS AND GAINS, FROM ALL THE GOODS CARRIAGES OWNED BY HIM IN THE PREVIOUS YE AR, COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (2). [(2) FOR THE PURPOSES OF SUB-SECTION (1) THE PROFIT S AND GAINS FROM EACH GOODS CARRIAGE (I) BEING A HEAVY GOODS VEHICLE, SHALL BE AN AMOUNT EQUAL TO FIVE THOUSAND RUPEES FOR EVERY MONTH OR PART OF A MONTH DURING WHICH THE HEAVY GOODS VEHICLE IS OWNED BY THE ASSESSEE IN THE PREVIOUS YEAR OR AN AMOUNT CLAIMED TO HAVE BEEN ACTUALLY EAR NED FROM SUCH VEHICLE, WHICHEVER IS HIGHER; (II) OTHER THAN A HEAVY GOODS VEHICLE, SHALL BE AN AMOUNT EQUAL TO FOUR THOUSAND FIVE HUNDRED RUPEES FOR EVERY MONTH OR PAR T OF A MONTH DURING WHICH THE GOODS CARRIAGE IS OWNED BY THE ASS ESSEE IN THE PREVIOUS YEAR OR AN AMOUNT CLAIMED TO HAVE BEEN ACT UALLY EARNED FROM SUCH VEHICLE, WHICH EVER IS HIGHER.] FROM GOING THROUGH THE ABOVE SECTION THE RELEVANT P ORTION FOR EXAMINATION IN THIS CASE IS 44AE(1) WHICH SHOWS THA T SECTION 44AE IS APPLICABLE IN THE CASE OF AN ASSESSEE WHO OWNS NOT MORE THAN TEN GOODS CARRIAGES (AT ANY TIME DURING THE PREVIOUS YE AR) AND WHO IS ENGAGED IN THE BUSINESS OF PLYING, HIRING OR USING .. IN OTHER WORDS AT ANY POINT OF TIME THE ASSESSEE SHOULD NOT BE OWN ERS OF MORE THAN TEN GOODS CARRIAGES. TO EXAMINE THIS PROVISION ON T HE FACTS OF THE ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 6 CASE OF ASSESSEE IT HAS TO BE SEEN THAT HOW MANY TR UCKS ARE OWNED BY THE ASSESSEE. LET US REPRODUCE THE CHART ONCE AG AIN - SL.NO. REGISTRATION NO. OF TRUCK NO. OF MONTHS USED INCOME 1 GJ/1/AT/8742 12 42,000 2 GJ/1/AT/5835 12 42,000 3 GJ/1/AT/2829 12 42,000 4 GJ/1/AT/6087 12 42,000 5 RJ/21/GA/0678 12 42,000 6 RJ/21/GA/0876 12 42,000 7 RJ/21/GA/0894 12 42,000 8 RJ/21/GA/0885 12 42,000 9 GJ/1/AT/6159 9 31,500 10 RJ/21/GA/1124 8 28,000 11 RJ/07/G/4005 3 10,500 12 GJ/1/UU/8742 2 7,000 TOTAL 4,13,000 FROM SL.NO.1 TO 8 GOODS CARRIAGES (TRUCKS HAVE BEEN USED FOR 12 MONTHS) WHICH IS NEITHER DISPUTED BY THE ASSESSEE N OR THE REVENUE. NOW REMAINS EXAMINATION OF SL. NO.9 TO 12. THE TRUC K MENTIONED AT SL. NO.12 I.E. GJ/1/UU/8742 WAS SOLD BY ASSESSEE ON 18.5.2006 AND, THEREFORE, USE OF 2 MONTHS (BEING ONE FULL MONTH AN D ONE PART OF THE MONTH) HAS BEEN SHOWN AND TRUCK AT SL. NO.10 NO.RJ/ 21/GA/1124 WAS PURCHASED ON 24.7.06 AND, THEREFORE, USE OF 8 M ONTHS (7 FULL MONTHS AND 1 MONTH FOR PART OF JULY, 2006) WAS SHOW N. THEREFORE, ONE TRUCK WAS SOLD ON 18.5.2006 AND ONE PURCHASED O N 24.7.2006. ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 7 NOW WE EXAMINE SL. NO.9 & 11. TRUCK AT SL. NO.11 RJ /07/G/4005 WAS PURCHASED IN JANUARY, 2007 AND USE OF 3 MONTHS HAVE BEEN SHOWN AND TRUCK AT SL. NO.9 GJ/1/AT/6159 WAS SOLD ON 1 ST JANUARY, 2007 AND OWNERSHIP HAS ALSO BEEN TRANSFERRED ON 1 ST JANUARY, 2007. SO FROM THIS WORKING IT IS CLEAR THAT AT ANY POINT OF TIME ASSESSEE WAS NOT HAVING MORE THAN 10 TRUCKS. FURTHER IN REGARD TO TH E OBSERVATION OF AO REGARDING ANY DIRECT USE OF TWO TRUCKS BEARING N OS.GJ/1/AT/2289 (IN THE NAME OF ASSESSEES BROTHER, ANIL KUMAR CHAU DHARY) AND TRUCK NO.GJ/1/AZ/8139 (IN THE NAME OF ASSESSEES SONE, SA NJAY KUMAR CHAUDHARY) IT IS OBSERVED FROM THE PAPER BOOK THAT THERE IS NO DOUBT ABOUT THE OWNERSHIP OF THE TRUCK. ONLY ISSUE IS THA T THE LOAN AGAINST THESE TWO TRUCKS WERE CREDITED IN THE ACCOUNT OF TH E ASSESSEE FOR WHICH THE ASSESSEE SUBMITTED THAT (AS HE WAS IN NEE D OF MONEY, HIS BROTHER ANIL KUMAR CHAUDHARY AND SON SANJAY KUMAR C HAUDHARY TOOK LOAN FROM FINANCIER TO CREDIT THE LOAN IN HIS ACCOUNT AND THE EVIDENCES REGARDING OWNERSHIP, RC BOOK, DELIVERY CH ALLAN ARE SUBMITTED IN THE PAPER BOOK. AS DISCUSSED ABOVE, AS PER PROVISIONS OF SECTION 44AE WE HAVE TO EXAMINE OWNERSHIP OF THE GOODS CARRIAGES AND FOR THESE TWO TRUCKS, REVENUE HAS NOT QUESTIONED ABOUT THE OWNERSHIP WHICH MEANS THAT ASSESSEE WAS N OT OWNER OF THESE TWO TRUCKS. 8. THEREFORE, FROM THE ABOVE DISCUSSION, WE COME TO THE CONCLUSION THAT AS THE ASSESSEE WAS NOT OWNING MORE THAN TEN TRUCKS AT ANY POINT OF TIME DURING THE YEAR, THE ASSESSEE WAS RIGHTLY COVERED UNDER SECTION 44AE AND THE RETURNED INCOME AS PER S ECTION 44AE BE ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 8 ACCEPTED BY THE AO. WE SET ASIDE THE ORDERS OF LOWE R AUTHORITIES AND DISMISS THIS GROUND OF REVENUE. 9. IN THE RESULT, THIS GROUND OF REVENUE IS DISMISS ED. 10. NOW WE TAKE UP ITA NO.476/AHD/2011 FOR AY 2007- 08 FILED BY THE ASSESSEE ON THE FOLLOWING GROUNDS:- (1) THE LD. CIT(A) HAS ERRED IN OBSERVING IN PARA 6 .1 OF THE ORDER THAT THE APPELLANT DID NOT DISPUTE USING THE TWO TR UCKS & THAT LOAN WITH RESPECT TO THESE TRUCKS WAS OBTAINED IN T HE APPELLANT NAME AS A) THE AFORESAID OBSERVATION AS TO USE OF TWO TRUCK S BY THE ASSESSEE AND TAKING LOAN IS INCORRECT AND WHATEVER OBSERVATION HAS BEEN MADE BY ASSESSING OFFICER COUL D NOT BE DISPUTED AS THE ASSESSEE WAS NOT GIVEN OPPORTUNI TY OR SHOW CAUSE BY ASSESSING OFFICER AS TO HIS OBSERVATI ON AND THEREFORE BEFORE CIT(A) SUBMISSION WAS MADE WITH DOCUMENTARY EVIDENCE (WHICH WERE BEFORE THE ASSESSI NG OFFICER WHICH CLARIFY THAT THE ASSESSEE HAS NOT USE D TWO TRUCKS AS WELL AS LOANS WERE NOT OBTAINED IN ASSESS EES NAME. B) AND HENCE THE REJECTION OF CLAIM OF PRESUMPTIVE TAX U/S 44AE IS BAD IN LAW AND ALSO ON FACTS. (2) THE LD. CIT(A) WHILE REJECTING THE CLAIM U/S 44 AE OF IT ACT HAS CONSIDERED 13 TRUCKS BEING 10 TRUCKS AS ALLOWED U/S 44AE PLUS 2 TRUCKS AS PER GROUND (1) ABOVE & 1 TRUCK NO.GJ-1- 80-6159 AS PER PARA 6(2) OF APPEAL ORDER BUT THIS 1 TRUCK OWNE D FOR PART OF THE YEAR IS NOT AN ADDITIONAL TRUCK BUT IS PART OF 10 TRUCKS ONLY AND THEREFORE THERE REMAINED ONLY 10 TRUCKS OR LESS WHOLE OF THE YEAR & HENCE THE REJECTION OF CLAIM OF PRESUMPT IVE TAX U/S 44AE IS BAD IN LAW AS ALSO ON FACTS. ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 9 (3) WITHOUT PREJUDICE TO GROUND NO. 1 & 2, CIT(A) H AS ERRED IN OBSERVING IN PARA 5 OF HIS ORDER THAT THE APPELLANT DID NOT CHALLENGE THE CASES CITED BY ASSESSING OFFICER WHER EIN SIMILAR LINE OF BUSINESS GP HAS BEEN SHOWN BY THE ASSESSING OFFICER PASSED ORDER WITHOUT GIVING ANY OPPORTUNITY OR SHOW CAUSE FOR ESTIMATE OF PROFIT AND FOR COMPARISON OF CASES OF G P & SO THERE WAS NO CHANCE TO CHALLENGE BEFORE AO BUT IN APPEAL THE APPELLANT HAS TOTALLY CHALLENGED THE ESTIMATE OF GP AS WELL AS IN SUBMISSION BEFORE CIT(A) THE ASSESSEE HAS CATEGORIC ALLY STATED IN PARA (8) THAT NECESSARY EVIDENCE OR MATERIAL FOR ESTIMATES FOR GP WAS NOT AVAILABLE TO ASSESSEE NOR CROSS EXAMINAT ION IS ALLOWED. (4) WITHOUT PREJUDICE TO GROUND NO.1 & 2 PRESUMING WHILE DENYING THAT EVEN IF A PROFIT IS TO BE ESTIMATED THEN A NET PROFIT OF 6.5% IS WITHOUT ANY BASIS & HIGHLY EXCESSIVE AS THE ASSESSE E IS ONLY PLYING ITS OWN TRUCKS AND IS NOT PLYING TRUCK ALONG WITH THE BUSINESS OF TRANSACTION OF GOODS BY ISSUING LORRY R ECEIPTS WHEREBY NOT HAVING ANY BUSINESS SET UP, ADMINISTRAT IVE OFFICE ETC. & THAT CONSEQUENTLY THE ESTIMATE OF RS.1,00,00 0/- PER TRUCK FOR A YEAR IS ALSO WITHOUT ANY BASIS AND HIGHLY EXC ESSIVE WHEN THE GOVERNMENT HAS FIXED NET INCOME PER TRUCK FOR P LYING AT RS.42,000/- U/S 44AE OF IT ACT & THEREFORE THE ESTI MATE IS WITHOUT ANY BASIS & IS BAD IN LAW. 11. THIS APPEAL OF THE ASSESSEE IS AGAINST THE REJE CTION OF CLAIM UNDER SECTION 44AE BY CIT(A) AND ALSO AGAINST THE A PPLICATION OF NP @ 6% OF RS.2,00,00,000/- AND SUSTAINING ADDITION OF RS.9,01,000/- AFTER GIVING DEDUCTION OF PRESUMPTIVE INCOME OF RS. 3,99,000/- FROM RS.13,00,000/-. AS PER OUR FINDING IN ITA NO.462/AH D/2011 AS MENTIONED ABOVE, AS THE ASSESSEE WAS NOT OWNING MOR E THAN 10 GOODS CARRIAGES AT ANY TIME DURING THE PREVIOUS YEA R, RELEVANT TO AY 2007-08 THE ASSESSEE WAS SQUARELY COVERED UNDER SEC TION 44AE AND, THEREFORE, THERE IS NO ROOM AVAILABLE FOR ANY ESTIMATION OF ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 10 INCOME BECAUSE SECTION 44AE PRESCRIBES THE INCOME T O BE SHOWN BY THE ASSESSEE. THEREFORE, THE ADDITION SUSTAINED BY CIT(A) AT RS.9,01,000/- IS DELETED AND ASSESSEES GROUND IS A LLOWED. APPEAL OF ASSESSEE IS ALLOWED. 12. ITA NO.56/AHD/2013 FOR AY 2009-10 HAS BEEN FIL ED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-XV, AHMEDABAD D ATED 4 TH OCTOBER, 2012 BY RAISING FOLLOWING GROUNDS OF APPEA L :- 1) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AN D ON FACTS IN DELETING THE ADDITION OF RS.35,94,622/- MADE ON ACC OUNT OF ESTIMATION OF NET PROFIT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A)-XV, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE AO BE RE STORED. 13. BRIEFLY STATED THE FACTS OF THE CASE AS PER THE ORD ER OF AO AND THE PAPER BOOK SUBMITTED BY THE LD. AR ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 31/12/2009 SHOWING TOTAL IN COME AT RS.3,05,580/-. THE RETURN WAS PROCESSED UNDER SECTI ON 143(1) AND THEREAFTER ISSUING NOTICE UNDER SECTION 143(2) ASSE SSMENT ORDER WAS PASSED ON 25.11.2011 WHEREIN ASSESSEES CLAIM OF BE ING COVERED UNDER THE PROVISIONS OF SECTION 44AE WAS REJECTED A ND ON THE BASIS OF WORKING OF THE AO FOR AY 2007-08, SIMILAR OBSERV ATIONS WERE MADE BY THE AO FOR AY 2009-10 ALSO THEREBY ESTIMATING TH E INCOME OF THE ASSESSEE BY APPLYING GP RATE OF 25% OF RS.2,00,00,0 00/- AND AFTER ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 11 ALLOWING DEPRECIATION AND OTHER ADMINISTRATIVE EXPE NSES OF RS.10,99,798/- THE INCOME OF THE ASSESSEE WAS WORKE D OUT AT RS.39,00,202/-. 14. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE THE C IT(A), WHO AFTER DOING THE DETAILED WORKING IN RELATION TO OWN ERSHIP OF TRUCKS MADE A FINDING THAT ASSESSEE WAS COVERED UNDER THE PROVISIONS OF SECTION 44AE AND DIRECTED THE AO TO DELETE THE ADDI TION OF RS.35,94,622/- (INCOME ESTIMATED BY AO AS PER ASSES SMENT ORDER AT RS.39,00,202 LESS RETURNED INCOME OF ASSESSEE AT RS .3,05,580/-) AND ALLOWED THE APPEAL OF THE ASSESSEE. 15. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER. ON THE OTHER HAND, THE LD. AR SUPPORTED THE ORDER OF CIT(A) AS WELL AS PAPER BOOK SUBMITTED BY HIM. 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AS WE HAVE ALREADY D ISCUSSED THE ISSUE IN DETAIL IN OUR FINDING GIVEN IN ITA NO.462/ AHD/2011 AND IN ITA NO.476/AHD/2011 FOR AY 2007-08, WE HOLD THAT PROVIS IONS OF SECTION 44AE ARE APPLICABLE ON THE ASSESSEE AS THE ASSESSEE WAS OWNING NOT MORE THAN 10 TRUCKS AT ANY POINT OF TIME DURING THE YEAR UNDER CONSIDERATION AND, THEREFORE, ASSESSEES INCOME IS TO BE CALCULATED AS PER THE PROVISIONS OF SECTION 44AE AND NOT ON ES TIMATE BASIS. AS SUCH WE DO NOT FIND ANY ERROR IN THE ORDER OF CIT(A ). WE UPHOLD THE ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 12 SAME. THE GROUND RAISED BY THE REVENUE IS DISMISSED . APPEAL OF REVENUE IS DISMISSED. 17. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED AND THE APPEAL FILED BY THE ASSESSEE IS ALLOWED.. ORDER PRONOUNCED IN THE OPEN COURT ON 11/9/2015 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 11/9/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD ITA NO.462,476/AHD/2011 & 56/AHD/2013 ASST. YEARS 2007-08 & 2009-10 13 1. DATE OF DICTATION:7/9/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 8/9/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK:1 1/9/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: