ACIT, New Delhi V. Sh. Pramod Mittal, New Delhi

ITA 5716/DEL/2011

• Counselvise Citation: 571620114 RSA 2011
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 15-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F NEW DELHI BEFORE SHRI R.P.TOLANI, JM AND SHRI J.SUDHAKAR REDDY, AM ITA NO.5716/DEL/2011 ASSESSMENT YEAR 2008-09 ACIT, CIRCLE 38(1) VS. SH.PRAMOD MITTAL ROOM NO.212, C.R.BLDG. PROP. GUPTA CONSTRUCTION NEW DELHI A 24B, KAILASH COLONY NEW DELHI PAN: AAKPM 5145L (APPELLANT) (RESPONDENT) APPELLANT BY:- NONE RESPONDENT BY:- SH. K.SAMPATH, ADV. O R D E R PER J.SUDHAKAR REDDY, AM THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXVIII, NE W DELHI DT. 7.10.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. NONE APPEARED ON BEHALF OF THE REVENUE. THERE I S NO PETITION FOR ADJOURNMENT EITHER. IN FACT THERE WAS NO DEPARTMEN TAL REPRESENTATIVE PRESENT IN THE COURT TODAY. THIS IS DESPITE THE FA CT THAT TEN CIT/DRS AND ELEVEN SR.DRS ARE POSTED IN ITAT AND IN EFFECT ONLY 5 BENCHES FUNCTIONED TODAY. OUT OF 5 BENCHES, ONLY 3 BENCHES FUNCTIONED AT THE SAME TIME, BECAUSE ONE MEMBER WAS REQUIRED TO SIT O N 3 BENCHES. WE PLACE ON RECORD OUR DISSATISFACTION AT THE STATE OF AFFAIRS, WHERE THE REVENUE DEPARTMENT GOES UNREPRESENTED. AT LEAST AN INSPECTOR OR A ITA 5716/DEL/2011 PAGE 2 OF 4 ASSESSMENT YEAR 2008-09 ACIT VS. PRAMOD MITTAL CLERK SHOULD HAVE BEEN DEPUTED WITH AN ADJOURNMENT LETTER, SO THAT THE INTEREST OF REVENUE IS PROTECTED. 3. UNDER THESE CIRCUMSTANCES WE DISPOSE OF THIS CAS E EX PARTE ON MERITS, QUA THE DEPARTMENT, AFTER HEARING THE LD.CO UNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD SHRI K.SAMPATH, THE LD.COUNSEL FOR THE ASSESSEE. THE ASSESSEE DERIVES INCOME FROM CIVIL ENGINEERING WORKS UNDER THE NAME AND STYLE OF M/S GUPTA CONSTRUCTION CO. AS WEL L AS FROM OTHER SOURCES. DURING THE YEAR UNDER CONSIDERATION THE A SSESSEE FILED ITS RETURN ON 27.10.2008, DECLARING NET PROFIT OF RS.22 ,41,355/- ON A GROSS RECEIPT OF RS.11,09,78,872/-. THE ASSESSING OFFICE R FOR THE DETAILED REASONS GIVEN IN HIS ORDER REJECTED THE BOOKS OF AC COUNTS AND ESTIMATED THE PROFIT RATE AT 5% OF THE GROSS TURNOVER. 5. ON APPEAL THE FIRST APPELLATE AUTHORITY REDUCED THE RATE TO 2.75% AS AGAINST THE NET PROFIT RATE OF 2.02% DECLARED BY THE ASSESSEE. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 6. AT PARA 8 THE COMMISSIONER OF INCOME TAX (APPEAL S) HELD AS FOLLOWS:- GR.NO.2 RELATES TO AN ADDITION OF RS.33,07,589/- D UE TO THE FACT THAT THE ASSESSING OFFICER REJECTED THE BOOKS OF AC COUNT OF THE APPELLANT BY INVOKING THE PROVISION TO S.145(3). T HEREAFTER THE ASSESSING OFFICER APPLIED THE NET PROFIT RATE OF 5% OF THE GROSS TURNOVER OF RS.11,09,78,872/- WHICH WORKED OUT TO B E RS.55,48,944/- AND AS THE APPELLANT HAS ALREADY SHO WN NET PROFIT OF RS.22,41,355/-, AN AMOUNT OF RS.33,07,598/- WAS ADDED BACK IN THE INCOME OF THE APPELLANT. THE APPELLANT DURI NG THE COURSE OF PROCEEDINGS BEFORE ME HAS STRONGLY OBJECTED TO SUCH AD HOC APPLICATION OF NET PROFIT RATIO WITHOUT FOR THE PRE CEDING AND ITA 5716/DEL/2011 PAGE 3 OF 4 ASSESSMENT YEAR 2008-09 ACIT VS. PRAMOD MITTAL SUCCEEDING YEAR. IN THE PRECEDING ASSESSMENT YEAR 2007-08 THE APPELLANT HAD SHOWN NET PROFIT @ 1.98% AND IN THE SUCCEEDING ASSESSMENT YEAR I.E. 2009-10 IT HAS SHOWN A NET PRO FIT RATE RATIO OF 2.93%. IN THE YEAR UNDER CONSIDERATION I.E. ASSESS MENT YEAR 2008-09 THE APPELLANT HAS SHOWN NET PROFIT RATE AT 2.02%. THE ORDER FOR ASSESSMENT YEAR 2007-08 WAS PASSED UNDER SECTION 143(3) WHEREIN A NET PROFIT RATIO OF 1.98% WAS SHOW N, WHICH WAS ACCEPTED BY THE REVENUE. 7. ON HEARING THE LD.COUNSEL FOR THE ASSESSEE WE UP HOLD THESE FINDINGS AND DISMISS THE APPEAL OF THE REVENUE. 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER,2012. SD/- SD/- (R.P.TOLANI) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 26 TH NOVEMBER, 2012 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR ITA 5716/DEL/2011 PAGE 4 OF 4 ASSESSMENT YEAR 2008-09 ACIT VS. PRAMOD MITTAL 1. DATE OF DICTATION: 2. DRAFT PLACED BEFORE THE AUTHOR ON: 3. DRAFT PROPOSED AND PLACED BEFORE SECOND MEMBER ON: 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: 5. APPROVED DRAFT CAME TO SR.P.S. ON: 6. DATE OF PRONOUNCEMENT : 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON: