H.Vinayagamoorthy, CHENNAI V. ACIT, CHENNAI

ITA 7/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90332 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: R MEENAKSHISUNDARAM
• Keywords: Gift
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . , ' $ , % ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO . 7/MDS/2015 ( / ASSESSMENT YEAR: 2008-09) MR.H.VINAYAGAMOORTHY, 182, THIRUGNANASAMBATHAR STREET, TWS NAGAR, THIRUMANGALAM CHENNAI-600 014. VS ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-XIV, CHENNAI. PAN:AEAPV4627E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R.MEENAKSHI SUNDARAM, ADVOCATE /RESPONDENT BY : MR. N.MADHAVAN, JCIT /DATE OF HEARING : 26 TH MARCH, 2015 /DATE OF PRONOUNCEMENT : 20 TH MAY, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-III, CHENN AI DATED 26.09.2014 FOR THE ASSESSMENT YEAR 2008-09. T HE ASSESSEE IS CHALLENGING THE ORDER OF THE COMMISSION ER OF INCOME TAX (APPEALS) IN SUSTAINING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER I.E. 10% OF SALARY AND WAG ES, MATERIALS CONSUMED, POWER AND FUEL EXPENSES. 2. BRIEF FACTS ARE THAT THE ASSESSEE IS A CIVIL CO NTRACTOR FILED RETURN OF INCOME ON 29.09.2008 DECLARING INCO ME OF ` 5,20,380/ -. IN THIS CASE, ASSESSMENT WAS COMPLETED UNDER 2 ITA NO.7/MDS/2015 SECTION 144 OF THE ACT ON 28.12.2010. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) AND 14 2(1) WAS ISSUED TO THE ASSESSEE. COUNSEL FOR THE ASSESSEE SU BMITS THAT THE ASSESSEE APPEARED ON 18.10.2010 AND 15.11. 2010 FILED CERTAIN DETAILS. FURTHER NOTICES WERE ISSUED BY THE ASSESSING OFFICER CALLING FOR DETAILS. THE ASSESSEE DID NOT FURNISH ANY DETAILS NOR SOUGHT ANY ADJOURNMENT, THE REFORE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SE CTION 144 ON 28.12.2010 DETERMINING THE INCOME AT ` 15,93,606 /- AGAINST THE INCOME RETURNED AT ` 5,20,380/ -. WHILE COMPLETING THE ASSESSMENT, ASSESSING OFFICER DISALLOWED 10% OF SALARY AND WAGES, MATERIALS CONSUMED, POWER AND FUEL EXPEN SES AS DETAILS WERE NOT PRODUCED. ON APPEAL, COMMISSION ER OF INCOME TAX (APPEALS) SUSTAINED THE DISALLOWANCE. BE FORE THE COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE CONTE NDED THAT IN CIVIL CONTRACTOR'S CASE PROFIT SHOULD BE ES TIMATED AT 8% IN VIEW OF THE DECISION OF HON'BLE MADRAS HIGH COUR T IN THE CASE OF COMMISSIONER OF GIFT TAX VS. A. VAJJIRAM & BROTHERS (326 ITR 551). THE COMMISSIONER OF INCOME TAX (APPE ALS) OBSERVED THAT ASSESSEE HAS NOT FURNISHED ANY EVIDEN CE WHATSOEVER BEFORE THE ASSESSING OFFICER. HE ALSO OB SERVED THAT ASSESSEE HAS NOT FURNISHED ANY EVIDENCE EVEN B EFORE 3 ITA NO.7/MDS/2015 HIM EXCEPT STATING THAT ORDER OF THE ASSESSING OFFI CER IS WRONG AND RELYING ON THE AFORESAID DECISION OF MADR AS HIGH COURT WHERE IN IT WAS HELD THAT ESTIMATING THE PROF IT OF ASSESSEE @ 8% ON CONTRACT RECEIPTS AS CORRECT. 3. COUNSEL FOR THE ASSESSEE REITERATES THE SUBMISS IONS MADE BEFORE THE LOWER AUTHORITIES. HE FURTHER SUBMI TS THAT ALL THE DETAILS ARE AVAILABLE AND IF AN OPPORTUNITY IS GIVEN HE WILL FURNISH ENTIRE DETAILS BEFORE THE ASSESSING OFFICER .HE SUBMITS THAT ASSESSEE HAS TAKEN SUB-CONTRACTS AND TDS WERE DEDUCTED ON SUCH SUB-CONTRACT PAYMENTS AND ALL THE DETAILS ARE AVAILABLE WITH THE ASSESSEE. THEREFORE, HE PLEA DS THAT MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. 4. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDERS OF LOWER AUTHORITIES. 5. HEARD BOTH THE SIDES. PERUSED ORDERS OF LOWER AUTHORITIES. IN THIS CASE, ASSESSMENT WAS MADE UNDE R SECTION 144 OF THE ACT DISALLOWING CERTAIN EXPENSES FOR THE REASON THAT DETAILS WERE NOT FURNISHED. IT APPEARS THAT AS SESSEE HAS NOT PRODUCED ANY DETAILS BEFORE THE COMMISSIONER OF INCOME 4 ITA NO.7/MDS/2015 TAX (APPEALS) ALSO. BEFORE US, THE ASSESSEE FURNISHED COPIES OF LEDGER ACCOUNT, SUB-CONTRACT PAYMENTS RECEIVED BY THE ASSESSEE WHEREIN TDS ALSO WAS DEDUCTED AND SUBMITS THAT ALL THE DETAILS ARE AVAIL ABLE, UNFORTUNATELY THE ASSESSEE COULD NOT PRODUCE THE SA ME BEFORE THE LOWER AUTHORITIES. ON HEARING BOTH THE S IDES AND CONSIDERING THE MATERIALS ON RECORD, IN THE INTERES T OF JUSTICE, WE REMIT THE WHOLE ISSUE TO THE FILE OF THE ASSESSI NG OFFICER TO FRAME THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MAY, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 20 TH MAY, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .