Nitin Nag, Lucknow V. Dy. Commissioner Of Income Tax, Lucknow

ITA 72/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4849 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.72/LKW/2015 ASSESSMENT YEAR 2009-10 DCIT, RANGE-VI, LUCKNOW VS NITIN NAG, 380/8, PURANA PAN DARIBA, SADATGANJ, LUCKNOW PAN AIRPN 1989 L (RESPONDENT) (APPELLANT) SHRI B.P. YADAV, COST ACCOUNTANT APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 0 3 / 1 1 /2015 DATE OF HEARING 01/01/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A)-II, LUCKNOW DATED 01.09.2014 FOR THE AY 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-LL, LUCKNOW (HEREINAFTER REFERRED TO AS THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.2,38,537/- BY PASSING EXPARTE ORDER WITHOUT APPRECIATING THE FACTS OF THE CASE OF THE APPELLANT . 2. ON THE FACTS STATED IN THE STATEMENT OF FA CTS, THE LD. CIT (A) HAS NOT ADJUDICATED THE ADDITION ON MERIT AND N OT JUSTIFIED IN CONFIRMING ADDITION OF RS.2,38,537/- I N THE HANDS OF THE APPELLANT AND HENCE THE ORDER SO PASSE D 2 MAY KINDLY BE RESTORED BACK TO THE FILE OF THE LD. CLT(A) FOR DECIDING THE ISSUE ON MERIT. 3. THE LD. A.O. ERRED ON FACTS AND IN LAW IN NOT PROVIDING THE APPELLANT THE PROPER ADEQUATE OR SUFFICIENT OPPORTU NITY TO HAVE IT SAY OR MAKE NECESSARY COMPLIANCE OF THE REA SONS RELIED UPON BY HIM MAKING ADDITION. 4. THE APPELLANT RESERVES ITS RIGHT TO ADVAN CE SUCH OTHER GROUNDS BEFORE OR AT THE HEARING, WHICH IT MAY CONS IDER FIT AND APPROPRIATE, FOR WHICH IT CRAVES LEAVE TO AMEND , ALTER OR OTHERWISE MODIFY THE GROUNDS APPEARING HEREINBEF ORE WITH THE KIND PERMISSION OF THE CIT (A). 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE PROVISIONS OF SECTION 44 AF OF THE INCOME TAX ACT, 1961 AND SINCE THE INCOME DISCLOSED BY THE ASSESSEE IS M ORE THAN 5% OF TURNOVER, NO ADDITION IS CALLED FOR. IN SUPPORT OF HIS CONTENTIO N, HE SUBMITTED THAT IT IS NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF MOBILE AND ACCESSORIES. HE A LSO SUBMITTED THAT IN PARA 3 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOT ED THAT THE ASSESSEE HAS SHOWN PROFIT OF RS.89,046/- ON TOTAL SALES OF RS.12,56,75 0/-. THEREAFTER, HE POINTED OUT THAT THIS IS NOT THE CASE OF THE REVENUE THAT THE A SSESSEE IS A WHOLESALER AND NOT RETAILER. HE SUBMITTED THAT SINCE THE PROFIT SHOWN BY THE ASSESSEE OF RS.89,046/- IS MORE THAN 5% OF TURNOVER OF RS.12,56,750/-, INCOME DECLARED BY THE ASSESSEE SHOULD BE ACCEPTED U/S 44AF OF THE ACT. 4. LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF AU THORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT THERE IS NO DISPUTE THAT THE ASSESSEE IS ENGAGED IN RETAIL TRADE OF MOB ILE AND ACCESSORIES AND THE TURNOVER OF THE ASSESSEE IS BELOW OF RS.40.00 LAKH AND THEREFORE, THE PROVISIONS OF SECTION 44AF ARE APPLICABLE AND SINCE THE INCOME DE CLARED BY THE ASSESSEE OF RS.89,046/- IS MORE THAN 5% OF THE ASSESSEES TURNO VER OF RS.12,56,750/-, THE 3 INCOME DECLARED BY THE ASSESSEE SHOULD BE ACCEPTED U/S 44AF AND NO ADDITION IS CALLED FOR. HENCE, WE DELETE THE ENTIRE ADDITION MA DE BY THE ASSESSING OFFICER OF RS.2,38,537/-. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 01/01/2016 AKS 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