ITO 25(2)(3), MUMBAI V. SANJAYKUNWAR R .RATHOD, MUMBAI

ITA 5671/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1282 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2017
• Appeal Filed By: Department
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 09-09-2014
• Court: TRIBUNAL
• Keywords: Business income
• Section: 44AD; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAMLAL NEGI (JM) I.T.A. NO. 5671 /MUM/20 14 (ASSESSMENT YEAR 20 10 - 11 ) ITO 25(2)(3) C - 11, ROOM NO. 105 PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA EAST MUMBAI - 400 051. VS. SMT. SANJAYKUNWAR R. RATHOD 502, SUSHILA APARTMENT DEVIDAS EXTN LANE BORIVALIE WEST MUMBAI - 400 103. ( APPELLANT ) ( RESPONDENT ) PAN NO . ADXPR6108G ASSESSEE BY NONE DEPARTMENT BY S HRI AARSI PRASAD DATE OF HEARING 10 .4 . 201 7 DAT E OF PRONOUNCEMENT 10 . 4 . 201 7 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 25.6.2014 PASSED BY THE LEARNED CIT(A) - 35, MUMBAI AND IT RELATES TO A.Y. 2010 - 11. SOLITARY ISSUE URGED BY THE REVEN UE IS WHETHER THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF ` 37.97 LAKHS RELATING TO CONTRACT RECEIPT S MADE BY THE ASSESSING OFFICER. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE DATE OF HEARING WAS NOTED BY THE ASSESSEE ON T HE LAST OCCASION. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT PRESENCE OF THE ASSESSEE. 3. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE RECORD. THE ASSESSEE HAD DECLARED BUSINESS INCOME U / S. 44AD OF THE ACT ESTIMATING THE INCOME AT THE RATE OF 9.08% OF THE CONTRACT RECEIPTS OF ` 37,98,050/ - . IN ORDER TO VERIFY THE VERACITY AND CORRECTNESS OF THE CLAIM OF CARRYING ON BUSINESS ACTIVITY, THE ASSESSING OFFICER ISSUED SUMMONS TO THE SMT. SANJAYKUNWAR R. RATHOD 2 ASSESSEE TWO TIMES , BUT THE ASSESSEE FAI LED TO APPEAR BEFO RE THE ASSESSING OFFICER. HENCE THE ASSESSING OFFICER ASSESSED THE ENTIRE AMOUNT OF CONTRACT RECEIPTS OF ` 37,98,050/ - AS INCOME OF THE ASSESSEE. THE LEARNED CIT(A) DELETED THE SAME ON THE REASONING THAT PAYER OF THE CONTRACT AMOUNT HAS DEDUCTED TAX U/S. 194C OF THE ACT HENCE THERE IS NO REASON TO DOUBT OR QUESTION THE HEAD OF INCOME IN THIS CASE. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 4. WE HAVE NOTICED THAT THE LEARNED CIT(A) DID NOT ADDRESS THE POINT OF THE AO THAT TH E ASSESSEE HAS FAILED TO PROVE THAT SHE CARRIED ON CONTRACT WORKS. ON THE CONTRARY, THE LEARNED CIT(A) APPEARS TO BE UNDER THE IMPRESSION THAT THE ISSUE BEFORE HER WAS RELATED TO THE HEAD OF INCOME UNDER WHICH THE ABOVE SAID AMOUNT WAS CHARGEABLE, I.E., T HE ASSESSEE IS QUESTIONING THE ASSESSMENT OF CONTRACT RECEIPTS OF ` 37.98 LAKHS UNDER THE HEAD INCOME FROM OTHER SOURCES. ACCORDINGLY, THE LEARNED CIT(A) HAS EXPRESSED THE VIEW THAT THERE IS NO REASON TO DOUBT OR QUESTION THE HEAD OF INCOME IN THE INSTAN T CASE WHEN TDS HAS BEEN DEDUCTED U/S. 194C OF THE ACT. THUS, WE NOTICED THAT THE LEARNED CIT(A) HAS FAILED TO ADDRESS MAIN ISSUE , VIZ., WHETHER THE CLAIM OF UNDERTAKING OF CONTRACT WAS GENUINE OR NOT. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LEARNED CIT(A). ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HER FILE FOR ADJUDICATING THIS ISSUE AFRESH. 5. IN THE RESULT, THE APPEAL FILED BY THE REVEN UE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 10 .4 .201 7. SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBA I ; DATED : 10 / 4 / 20 1 7 SMT. SANJAYKUNWAR R. RATHOD 3 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI