SHRI RAM PRASAD KAMDAR, Dhar V. THE ITO, Dhar

ITA 567/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5699 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 23-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE
• Section: 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO.567/IND/2015 A.Y. : 2009-10. SHRI RAM PRASAD KAMDAR, ITO, PROP. VIJAY ENTERPRISES, VS. DHAR PITHAMPUR, DISTT.DHAR APPELLANT RESPONDENT PAN NO. AMSPK6042J APPELLANTS BY : SHRI S.S.DESHPANDE, CA RESPONDENT BY : SHRI R.A.VERMA, DR O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 10.02.2015 FOR THE ASSE SSMENT YEAR 2009-10. DATE OF HEARING : 29 .0 2 .2016 DATE OF PRONOUNCEMENT : 29 .0 2 .2016 SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 2 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE I S A LABOUR CONTRACTOR AND AS PER THE AUDIT REPORT AND I TS SCHEDULE OF PROFIT AND LOSS ACCOUNT HAS SHOWN TOTAL CONTRACT RECEIPTS OF RS. 1.19 CRORES AND NET PROFIT HAS BEEN SHOWN AT RS . 5,59,413/-. THERE ARE NO LOANS AND ADVANCES TAKEN B Y THE ASSESSEE. THERE ARE SUNDRY CREDITORS OF RS. 9.74 LA KHS. ON THE TOTAL RECEIPTS OF RS. 1.19 CRORES, THERE ARE CLAIMS OF TDS OF RS. 2,71,312/-. THE AO FOUND THAT THE ASSESSEE HAS CLAI MED THE TDS AND ON VERIFICATION OF THE CERTAIN GROSS RECEIP TS OF THE ASSESSEE, IT WAS FOUND THAT THE WORK WAS NOT CARRIE D OUT BY THE ASSESSEE, EVEN THOUGH TDS WAS DEDUCTED AND HE REQUESTED THAT DUE CREDIT MAY BE GIVEN TO THE TDS D EDUCTED AND THE REFUNDS ON THE AMOUNTS BE GIVEN TO HIM. THE ASSESSEE SUBMITTED THAT THE PROJECT WAS LOOKED AFTER BY HIS SON, THEREFORE, HIS SON HAS FAILED TO GIVEN THE ACCOUNTS WHILE PREPARING THE BOOKS OF ACCOUNT. THE CREDIT OF RS. 2 6,11,528/- HAVE BEEN TAXED @ 4.6% IN THE BOOKS OF ACCOUNT. THE BOOK RESULT WAS REJECTED U/S 145 AND THE AO HAS HELD THA T THE SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 3 3 ASSESSEE HAS CONCEALED THE INCOME. THEREFORE, HE HA S LEVIED THE PENALTY OF RS. 1,30,000/-. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED THE APPEAL. 4. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH E ASSESSEES BOOKS OF ACCOUNT ARE AUDITED. THE RETURN OF INCOME WAS FILED AND IN AUDITED ACCOUNTS, THE ASSESSEE HAS DECLARED CONTRACT RECEIPT OF RS. 1,19,87,604/- AND NET PROFI T OF RS. 5,59,413/- WAS DECLARED. THE TOTAL RECEIPT OF RS. 2 6,11,528/- HAVE NOT BEEN INCORPORATED IN THE TOTAL TURNOVER, B UT THE ASSESSEE HAS CLAIMED TDS ON THIS AMOUNT AND THE ASS ESSEE HAS ALREADY OFFERED THE ADDITIONAL INCOME @ 4.6% IN THE BOOKS OF ACCOUNT AND REQUESTED TO CONSIDER THE TDS. THE A SSESSEE HAS DONE THIS ACT VOLUNTARILY. THE LD. AUTHORIZED REPRESENTATIVE RELIED UPON THE DECISION OF CIT VS. SURAJCHAND MITTAL, 251 ITR 9, CIT VS. RELIANCE PETROCHEMICALS LIMITED, 322 ITR 158 ( S. C.), CIT VS. CHIRAG INGOTS, 275 IT R 310 (MP), CIT VS. AGRO CHEMICALS INDIA, 288 ITR 149 (P&H), CI T VS. SHIV NARAYAN JAMUNALAL, 232 ITR 311 (MP) AND CIT VS. SAN GRURU SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 4 4 VANASPATI MILLS LIMITED, 303 ITR 53. THE LD. AUTHO RIZED REPRESENTATIVE ALTERNATIVELY SUBMITTED THAT THE ASS ESSEE THAT THE ASSESSEE HAS NOT OFFERED THE RECEIPT OF RS. 26, 11,528/-. THE NET PROFIT AT 4.6 % IS TAKEN. THEREFORE, THE TO TAL ADDITION COMES TO RS. 1,20,130/- ON WHICH THE MINIMUM PENALT Y SHOULD BE LEVIED AND THE PENALTY MAY NOT BE LEVIED ON THE WHOLE AMOUNT OF THE CLAIM OF THE ASSESSEE. 5. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IN THI S CASE THE ASSESSEE HAS CLAIMED THE TDS ON THE AMOUNT OF RS. 26,11,528/- AND AFTER THE NOTICE THE DEPARTMENT HAS FOUND OUT THAT THE ASSESSEE HAS NOT INCLUDED THE INCOME O F RS. 26,11,528/- AND ADDITIONAL RECEIPTS WERE OFFERED BY THE ASSESSEE. THE ASSESSEE DID NOT MAINTAIN THE STOCK R EGISTER, SELF-VOUCHERS ARE PREPARED FOR MAINTENANCE. THEREFO RE, THE AO AND CIT(A) ARE JUSTIFIED IN REJECTING THE BOOK RESU LT U/S 145 AND WHEN THE BOOK RESULTS ARE REJECTED AND THE ASSE SSEE HAS NOT DECLARED THE ADDITIONAL RECEIPT, THE AO AND LD. CIT(A) IS JUSTIFIED IN IMPOSING THE PENALTY. SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 5 5 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS DECLARED THE CONTRACT RECEIPT OF RS. 1,19,87,604/- AND NET PROFIT OF RS. 5,59,413/- WAS DECLARED. THE AO HAS CALLED FOR THE DETAILS AND AO HAS SCRUTINIZED THE TDS AND IT WAS FOUND THAT SOME OF T HE CONTRACT RECEIPT WAS NOT SHOWN IN HIS BOOKS OF ACCO UNT. THE RECEIPT OF RS. 26,11,528/- HAVE NOT BEEN INCORPORAT ED AND ON THAT TDS WAS CLAIMED. THE ASSESSEE HAS OFFERED THE ADDITIONAL INCOME @ 4.6 %, WHICH WAS DISCLOSED AND ADDITIONAL INCOME WAS OFFERED AND IT WAS ACCEPTED. WE FIND THAT THE A O HAS REJECTED THE BOOK RESULT U/S 145(3) ON THE GROUND T HAT QUANTITATIVE DETAILS OF MATERIAL ARE NOT MAINTAINED ALONGWITH STOCK REGISTER. SELF-MADE VOUCHERS ARE PREPARED IN RESPECT OF REPAIRS AND MAINTENANCE. THEREFORE, WE ARE OF THE V IEW THAT THE LD. CIT(A) AND AO IS JUSTIFIED IN REJECTING THE BOOK RESULT. WE FIND THAT THE ASSESSEE HAS CLAIMED THAT THE INCO ME HAS BEEN ESTIMATED BY THE DEPARTMENT, BUT WE ARE NOT SA TISFIED WITH THE EXPLANATION OF THE ASSESSEE. WE FOUND THAT THE SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 6 6 ASSESSEE HAS NOT DECLARED RECEIPT OF RS. 26,11,528/ - AND AFTER THE DETECTION OF THE DEPARTMENT, THE ASSESSEE HAS O FFERED THIS ADDITIONAL INCOME. THEREFORE, WE ARE OF THE VIEW TH AT THE ASSESSEE IS LIABLE FOR PENALTY FOR THE SAME. WE FIN D FROM THE PENALTY ORDER AND CIT(A)S ORDER THAT THE AO HAS IM POSED THE PENALTY ON THE TOTAL TURNOVER OF THE ASSESSEE. THE ASSESSEE HAS CONCEALED ONLY THE CONTRACT RECEIPT OF RS. 26,11,52 8/-. THEREFORE, PENALTY CAN BE IMPOSED ONLY ON CONCEALED INCOME AND NOT ON THE ENTIRE TURNOVER. THEREFORE, WE MODIF Y THE ORDER OF THE AO AND CIT(A) AND AO IS DIRECTED TO CALCULAT E THE PENALTY ON TOTAL ADDITIONAL INCOME DECLARED OF RS. 26,11,528/- AND NET PROFIT RATE OF 4.6 % SHOULD BE TAKEN. THERE FORE, THE AO IS DIRECTED TO CALCULATE THE PENALTY AND REVISE THE PENALTY ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. SHRI RAM PRASAD KAMDAR, PITHAMPUR, VS. ITO, DHAR I.T.A.NO. 567/IND/2015 A.Y. 2009-10 7 7 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH FEBRUARY, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 29 TH FEBRUARY, 2016. CPU*