SHRI RAJENDRA KUMAR GARG, Bhopal V. THE DCIT 1(1), Bhopal

ITA 775/IND/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5813 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Depreciation; Loose papers; Opportunity of being heard
• Section: 143(3)

Judgement Text

RAJENDRA KUMAR GARG ITA NOS.775 AND 777/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM ITA NO.775/IND/2014 A.Y.2008-09 RAJENDRA KUMAR GARG BHOPAL PAN AEPPG 4482H ::: APPELLANT VS DCIT 1(1) BHOPAL ::: RESPONDENT ITA NO.777/IND/2014 A.Y.2008-09 DCIT 1(1) BHOPAL ::: APPELLANT VS. RAJENDRA KUMAR GARG BHOPAL PAN AEPPG 4482H ::: RESPONDENT ASSESSEE BY WRITTEN SUBMISSIONS REVENUE BY SHRI MOHD. JAVED DATE OF HEARING 27.7.2016 DATE OF PRONOUNCEMENT 18.8.2016 O R D E R PER SHRI D.T.GARASIA, JM THE ASSESSEE AND THE REVENUE ARE IN APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A), BILASPUR, CAMP AT BH OPAL, DATED 16.10.2014. SINCE THE ISSUE INVOLVED IN THESE RAJENDRA KUMAR GARG ITA NOS.775 AND 777/IND/2014 2 APPEALS IS THE SAME, WE PROPOSE TO DECIDE THE SAME BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM EXECUTION OF CIVIL CONSTRUCTION WORKS. THE RETURN OF INCOME WAS FILED O N 29.9.2008 AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT. THEREAFTER, DURING THE COURSE OF ASSESSM ENT PROCEEDINGS THE ASSESSEE WAS REQUESTED TO PRODUCE THE ACCOUNTS AND BILL VOUCHERS FOR VERIFICATION. THE ASSESS EE DID NOT PRODUCE THE SAME. THEREAFTER, THERE WAS SURVE Y U/S 133 OF THE ACT AND DURING THE COURSE OF SURVEY, IT W AS FOUND THAT THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS AND VOUCHERS IN RESPECT OF EXPENSES CLAIMED I N ASSESSMENT YEARS 2007-08 TO 2009-10. THEREFORE, THE STATEMENT WAS RECORDED AND THE ASSESSMENT WAS MADE AND THE ASSESSEE VOLUNTARILY ADMITTED 10% OF THE GROSS CON TRACT RECEIPTS AS PROFIT. AFTER THAT THE ASSESSING OFFICER HAS MADE RAJENDRA KUMAR GARG ITA NOS.775 AND 777/IND/2014 3 THE ADDITION OF RS.1,18,34,760/- AND ALSO MADE THE ADDITION OF RS.47,71,000/-. THE MATTER WAS CARRIED IN APPEAL AND THE LEARNED CIT(A) DELETED THE ADDITION OF RS.47,71,000/- MADE ON ACCOUNT OF BRIBE PAID TO DIFFE RENT OFFICERS. THEREFORE, THE DEPARTMENT IS IN APPEAL BEFOR E US AND THE ASSESSEE IS IN APPEAL AGAINST RETAINING THE ADDITIO N OF 10% OF GROSS PROFIT. 3. THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND THE LEARNED COUNSEL FOR THE ASSE SSEE HAS FILED THE WRITTEN SUBMISSIONS. THE LEARNED COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION OF RS.47.60 L ACS AND RS.28 LACS HAVE ALREADY BEEN CONSIDERED BY ITAT IN ITA NO. 106/IND/2012 AND THIS AMOUNT IS NOT SEGREGATED IN THREE ASSESSMENT YEARS. DURING THE COURSE OF SURV EY LOOSE PAPERS WERE FOUND AND THE STATEMENT OF THE ASSESS EE WAS RECORDED. THE SURVEY TEAM ALSO TOOK THE CHEQUE OF RS.89 LACS. THE CHEQUES WERE NOT SUBMITTED FOR RAJENDRA KUMAR GARG ITA NOS.775 AND 777/IND/2014 4 ENCASHMENT.THE ASSESSEE HAS ALSO CLAIMED FOR DEPRECIATION AND HE HAS RELIED UPON SOME OF THE DECISIONS. 4. HAVING HEARD BOTH THE LEARNED DR AND GOING THROUGH THE WRITTEN SUBMISSIONS, WE ARE OF THE VIEW THAT THE LEARNED CIT(A) HAS RELIED UPON THE DECISION OF ITAT I N THE ASSESSEES OWN CASE IN ITA NO. 106/IND/2012 DATED 22.12.2012 AND HE WAS OF THE VIEW THAT THE TRIBUNAL ACCEPTED THE NP RATE OF 10% ON THE BASIS OF INCRIMINATI NG DOCUMENTS FOUND DURING THE COURSE OF SURVEY AND ALSO DOCUMENTS INDICATING ILLEGAL PAYMENT OF RS.40.60 LACS AND RS.28.28 LACS. THE LEARNED CIT(A), THEREFORE, DELETED THE ADDITION. DURING THE COURSE OF HEARING, THE LEARNED D R WAS ASKED WHETHER IN THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2007-08 THE TOTAL CONTRACT RECEIPTS WER E TAKEN FOR THREE ASSESSMENT YEARS AND THAT CONTRACT RECEI PTS WERE BIFURCATED IN THREE ASSESSMENT YEARS OR NOT, THE LEARNED DR DID NOT REPLY TO IT. MOREOVER, WE ALSO FIN D THAT RAJENDRA KUMAR GARG ITA NOS.775 AND 777/IND/2014 5 IN THE ABSENCE OF THIS CLARIFICATION AND THE ASSESSEE D ID NOT APPEAR BEFORE THE TRIBUNAL AND HE HAS FILED THE WRITTEN SUBMISSIONS, IN THE INTEREST OF JUSTICE AND FAIR PLAY , WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFF ICER TO VERIFY WHETHER THE AMOUNT OF RS.47,71,000/- IS INCLU DED IN THE TOTAL CONTRACT RECEIPTS OR NOT AND THAT PERTAINED TO THE ASSESSMENT YEAR 2008-09 OR NOT AND AFTER ASCERTAINING TH IS FACT, THE ASSESSING OFFICER IS DIRECTED TO REFRAME TH E ASSESSMENT AS PER LAW, AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON 18 TH AUGUST, 2016 SD SD/- (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 18 TH AUGUST, 2016 DN/-