ACIT, Gwalior V. Sh. Nathuram Yadav, Tikamgarh

ITA 700/AGR/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6932 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 18-12-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R C SHARMA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 44AD; 143(3); 28

Judgement Text

1 ITA 700-08 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH : AGRA. ( BEFORE SHRI R.K. GUPTA AND SHRI P.K. BANSAL ) ITA NO. 700/AG./2008 ASSTT. YEAR : 2004-05. THE ACIT, RANGE-1, VS. SHRI NATHURAM YADAV, GWALIOR. CIVIL CONTRACTOR, VILLAGE. KUNWARPURA, POST DHILLA, ORCHHA, DIST. TIKAMGARM. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. SHARMA, JR. D/R RESPONDENT BY : NONE ORDER PER R.K. GUPTA, J.M. THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2004-05. 2. THE DEPARTMENT IS OBJECTING IN DELETING THE ADDI TION OF RS. 26,47,573/- ON ACCOUNT OF ESTIMATION OF NET PROFIT @ 8% MADE BY THE ASSESS ING OFFICER IN VIEW OF PROVISIONS OF SECTION 44AD OF THE ACT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF ISSUE OF NOTICE BY REGISTERED POST. THE APPEAL IS DISPOSED OFF AFTER CONSIDERIN G THE ORDER OF THE AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. 4. IN THIS CASE ASSESSMENT WAS COMPLETED UNDER SECT ION 143(3) ON 18.12.2006 DETERMINING TOTAL INCOME AT RS. 66,45,3990 AND AGRI CULTURAL INCOME AT RS. 2,00,000/-. 2 THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY A PPLYING PROVISIONS OF SECTION 44AD AND TAKEN THE NET PROFIT OF 8% OF THE G.P. WHICH RE SULTED IN AN ADDITION OF RS. 27,07,573/- AND FURTHER ADDITION WAS MADE OF RS. 19,97,888/- O N ACCOUNT OF UNEXPLAINED CASH CREDIT. HOWEVER, OUT OF ADDITION OF RS. 27,07,573/-, THE LD . CIT (A) DELETED ADDITION OF RS. 26,47,573/- BY OBSERVING THAT ASSESSEE HAD MAINTAIN ED REGULAR BOOKS OF ACCOUNT AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSI NG OFFICER IN THE BOOKS OF ACCOUNT. THE LD. CIT (A) ALSO DELETED THE ADDITION OF RS. 19 ,97,888/- MADE UNDER SECTION 68. NOW THE DEPARTMENT IS CHALLENGING THE DELETION OF ADDIT ION OF RS. 26,47,573/-. 5. THE LD. D/R INVITED ATTENTION OF THE BENCH ON TH E ORDER OF ASSESSING OFFICER WHERE IT HAS BEEN SPECIFICALLY MENTIONED THAT THE A DVOCATE OF THE ASSESSEE SHRI SURAJ TRIPATHI WHO APPEARED ON 14.12.2006 HAS EXPRESSED H IS INABILITY TO PRODUCE THE BOOKS OF ACCOUNT AND VOUCHERS. NO FURTHER OPPORTUNITY COULD BE ALLOWED SINCE THE ASSESSMENT AS GOING TO BE BARRED BY LIMITATION. THE ASSESSEE ALR EADY IGNORED MANY OPPORTUNITIES PROVIDED TO HIM IN A SPAN OF TIME. ACCORDINGLY, TH E LD. D/R SUBMITTED THAT IT IS WRONG ON THE PART OF THE LD. CIT (A) IN OBSERVING THAT BOOKS OF ACCOUNT DULY MAINTAINED AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSI NG OFFICER. THEREFORE, THE ORDER OF THE ASSESSING OFFICER IS LIABLE TO BE RESTORED ON THIS ISSUE. 6. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D/R AND THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT LD. CIT (A) WAS NOT JUSTIFIED I N OBSERVING THAT ASSESSEE HAS MAINTAINED REGULAR BOOKS OF ACCOUNT AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE BOOKS OF ACCOUNT AS ON THE CONTRARY THE ASSESSING OFFICER HAS SPECIFICALLY MENTIONED THAT INSPITE OF VARIOUS OPPO RTUNITIES PROVIDED TO THE ASSESSEE NO BOOKS OF ACCOUNT AND VOUCHERS WERE PRODUCED. THEREF ORE, HE APPLIED THE PROVISIONS OF 3 SECTION 44AD. BOTH THE LOWER AUTHORITIES HAVE OBSE RVED CONTRARY OBSERVATIONS IN THEIR ORDERS. THE ASSESSING OFFICER IS SAYING THAT NO BO OKS OF ACCOUNT WERE PRODUCED WHEREAS LD. CIT (A) HAS STATED THAT BOOKS OF ACCOUNT WERE P RODUCED AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE BO OKS OF ACCOUNT. TO MEET THE ENDS OF JUSTICE, WE ARE OF THE CONSIDERED VIEW THAT THE MAT TER SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH IN RE SPECT OF APPLICATION OF G.P. RATE. IF THE BOOKS OF ACCOUNT ARE MAINTAINED BY THE ASSESSEE, TH EN THE PROFIT OF THE ASSESSEE HAS TO BE COMPUTED IN VIEW OF PROVISIONS OF SECTIONS 28 TO 43 OF THE IT ACT AS HELD BY HONBLE SUPREME COURT IN THE CASE OF A. SANYASI RAO, 219 IT R 330 (SC). ACCORDINGLY, WE RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER TO EXAMINE THIS ISSUE AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS A LLOWED FOR STATISTICAL PURPOSE. 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 04.2010 SD/- SD/- ( P.K. BANSAL ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AGRA, DATED : 21/04/2010. D/- COPY FORWARDED TO :- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A) CONCERNED. THE D/R, ITAT AGRA. GUARD FILE (ITA 700/AG/2008) BY ORDER, AR ITAT AGRA. 4