Asstt.Commissioner of Income Tax, Lucknow V. Shri Anil Yadav, Lucknow

ITA 617/LKW/2012

• Counselvise Citation: 61723714 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 21-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.617/LKW/2012 ASSESSMENT YEAR:2009 - 10 A.C.I.T., RANGE - I, LUCKNOW. VS. SHRI ANIL YADAV, ROOM NO. 202, DURGAMA TOWER, LALBAGH, LUCKNOW. PAN:AABFF6294J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ALOK MITRA, D.R. RESPONDENT BY NONE DATE OF HEARING 13/06/2014 DATE OF PRONOUNCEMENT 0 4 /0 7 /2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, LUCKNOW DATED 23/10/2012 FOR ASSESSMENT YEAR 2009 - 2010. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE CIT (A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN RESTRICTING ESTIMATION OF N.P. TO 5.5% OF TURNOVER AS AGAINST 10% ESTIMATED BY THE A.O. HE FAILED TO APPRECIATE THE FACT THAT THE ESTIMATE MADE BY THE A.O. WAS NEITHER EXCESSIVE NOR ARBITRARY. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN FAI LING TO APPRECIATE THE FACT THAT ONCE HE HAD CONFIRMED THE ACTION OF THE A.O. IN PASSING THE ASSESSMENT ORDER U/S 144 OF THE I.T. ACT, HE COULD NOT SUBSTITUTE HIS 2 ESTIMATE FOR THAT OF THE A.O. WITHOUT GIVING ANY BASIS FOR THE SAME. 3. APPELLANT CRAVES LEA VE TO ADD OR AMEND THE GROUND OF APPEAL, AS STATED ABOVE AS AND WHEN NEED OF DOING SO ARISES WITH THE PRIOR PERMISSION OF THE HON'BLE BENCH. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF SERVICE OF NOTICE AND HENCE, WE PROCEED TO DECIDE THE APPE AL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT W AS COMPLETED BY THE ASSESSING OFFICER U/S 14 4 OF THE ACT BECAUSE THERE WAS NO COMPLIANCE BY THE ASSESSEE BEFORE HIM. WE FIND THAT THIS FINDING IS GIVEN BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE VARIOUS EXPENSES DEBITED IN T RADING & PROFIT & LOSS ACCOUNT AND THE ASSESSEE WAS NOT ABLE TO CONFIRM THE CREDITORS SHOWN IN THE BALANCE SHEET AT THE YEAR END. AFTER GIVING THIS FINDING, THE ASSESSING OFFICER HAS ESTIMATED THE INCOME AT 10% OF THE TURNOVER AS AGAINST THE INCOME DISCLO SED BY THE ASSESSEE TO THE EXTENT OF 3.54% OF THE TURNOVER. THE CIT ( A) HAS HELD THAT THE INCOME DECLARED BY THE ASSESSEE AT 3.54% CANNOT BE ACCEPTED AS CORRECT BUT AT THE SAME TIME , HE HAS HELD THAT THE ESTIMATE OF NET PROFIT BY THE ASSESSING OFFICER @10 % LACKS SOUND BASIS. THEREAFTER, HE HAS HELD THAT THE INCOME OF THE ASSESSEE SHOULD BE ESTIMATED AT 5.5% OF THE TURNOVER. WE FIND THAT NONE HAS APPEARED BEFORE CIT ( A) ALSO AND NONE HAS APPEARED BEFORE US. IT GOES TO SHOW THAT THE ASSESSEE IS NOT APPEAR ING BEFORE ANY OF THE AUTHORITIES BELOW OR BEFORE US. IN THE LIGHT OF THESE FACTS THAT THE ASSESSEE WAS NOT ABLE TO 3 SUBSTANTIATE THE EXPENSES DEBITED IN THE TRADING & PROFIT & LOSS ACCOUNT AND THE ASSESSEE COULD NOT CONFIRM THE CREDITORS SHOWN IN THE BALA NCE SHEET AND IN VIEW OF COMPLETE NON COOPERATION BY THE ASSESSEE BEFORE ANY OF THE AUTHORITIES BELOW OR BEFORE US, WE ARE OF THE CONSIDERED OPINION THAT THE INCOME ASSESSE D BY THE ASSESSING OFFICER @10% OF THE TURNOVER IS REASONABLE IN THE FACTS OF THE PRESENT CASE AND HENCE, WE REVERSE THE ORDER OF CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS A L L O W E D . (ORDER WAS P RONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 4 /0 7 /2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR