M/s Jaiswal Steel Enterprises Pvt. Ltd., Kanpur V. Income Tax Officer-6(1), Kanpur

ITA 783/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4726 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1994-1995
• Appeal Filed On: 28-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 320/LKW/2015 ASSESSMENT YEAR: 2010 - 11 M/S JAI BAJRANG CONSTRUCTION GONDA V. ASSTT. CI T CIRCLE GONDA T AN /PAN : AANFM1206F (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 01 02 201 6 DATE OF PRONOUNCEMENT: 04 02 201 6 O R D E R PER SUNIL KUMAR YADAV: T HIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) PERTAINING TO ASSESSMENT YEAR 2010 - 11, INTER ALIA, ON THE FOLLOWING GROUNDS: - 1. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE REJECTION OF BOOKS OF ACCOUNT BY T HE ASSESSING OFFICER IS UNJUSTIFIED AND BOOK RESULT OF THE ASSESSEE ARE LIABLE TO BE ACCEPTED. 2. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADOPTION OF NET PROFIT RATE OF 8 % BY THE ASSESSING OFFICER IS NOT BASED ON ANY COMPARATIVE R ESULTS FILED BY THE ASSESSEE AND HAS FURTHER NOT TAKEN INTO ACCOUNT THE PAST HISTORY OF THE ASSESSEE AND IS EXCESSIVE. : - 2 - : 3. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADOPTION OF 8% OF THE GROSS RECEIPT OF THE ASSESSEE IS HIGHLY ILLEGAL AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IT WAS SPECIFICALLY ACKNOWLEDGE THAT THE LD CIT (APPEAL) THAT THE ASSESSEE COULD NOT MAKE COMPLIANCE OF THE VARIOUS NOTICES OF THE HEARIN G ISSUED BY THE AO DUE TO HIS ILLNESS AND HENCE IT WAS OBLIGATORY TO THE CIT (A) TO BY EXERCISE COTERMINOUS POWERS, AND ALLOW THE CLAIM OF INTEREST AND SALARY WHO PARTNERS OUGHT TO HAVE BEEN ALLOWED. 5. BECAUSE ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE THE NOTICE OF THE HEARING, AS NOTED BY THE ADVOCATE OF THE ASSESSEE, SHRI R.N. SHUKLA WAS INCORRECTLY NOTED AS 13.03.2015 IN HIS DIARY AND WAS HENCE UNDER IMPRESSION THAT THE APPEAL WOULD BE REPRESENTED ON THAT DAY AND THENCE COULD NOT BE REPRESENTED. 6 . BECAUSE ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE THE ADDITION OF RS. 19,458/ - UNDER THE HEAD INTEREST INCOME IS BAD IN LAW AND FACTS AND HAS NOT AT ALL BEEN ADJU DICATED BY LD. CIT (APPEAL). 7 . BECAUSE THE ORDER PASSED IS BAD IN LAW AND DESERVES T O BE QUASHED. 2 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ESTIMATED THE NET PROFIT RATE AT 8% OF THE GROSS RECEIPTS. BEFORE THE LD. CIT(A), THE COUNSEL OF THE ASSESSEE DID NOT APPEAR AND MOST OF THE TIME HE SOUGHT ADJOURNMENT. ON ACCOUNT OF NON - COOPERATION O F THE COUNSEL O F THE ASSESSEE, THE LD. CIT(A) HAS : - 3 - : DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE ASSESSEE IS READY TO PRODUCE ALL THE RELEVANT EVIDENCE AND THE BOOKS OF ACCOUNT BEFORE THE ASSESSING OF FICER IF AN OPPORTUNITY IS AFFORDED TO THE ASSESSEE, AS HE WAS ALWAYS WILLING TO CO - OPERATIVE WITH THE DEPARTMENT , BUT HIS COUNSEL DID NOT PROSECUTE THE CASE O F THE ASSESSEE PROPERLY AND THE APPEAL W AS DISPOSED OF BY THE ASSESSING OFFICER AND THE FIRST APP ELLATE AUTHORITY IN THE ABSENCE OF COMPLETE EVIDENCE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN THE INTEREST OF JUSTICE , ONE MORE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE AND HE IS READY TO MAKE AN UNDERTAKING THAT IF THE ASSESS EE MAKES DEFAULT IN PRODUCING THE BOOKS OF ACCOUNT AND THE RELEVANT EVIDENCE, THE NET PROFIT RATE OF THE ASSESSEE MAY BE ESTIMATED AT 8% AS DONE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. 3 . THE LD. D.R., HOWEVER, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) . 4 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS , WE FIND THAT UNDISPUTEDLY THE COUNSEL O F THE ASSESSEE DID NOT CO - OPERATE WITH THE DEPARTMENT AND THE ASSESSING OFFICER HAS PASSED AN ORDER UNDER SECTION 144 OF THE ACT ESTIMATING THE NET PROFIT RATE AT 8% OF THE GROSS RECEIPTS. EVEN BEFORE THE LD. CIT(A), THE SAME COUNSEL DID NOT CO - OPERATE WITH THE AUTHORITIES AND THE LD. CIT(A) HAS FORCED TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFIC ER. NOW THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT FOR THE DEFAULT OF THE COUNSEL OF THE ASSESSEE, THE ASSESSEE SHOULD NOT SUFFER AND WE FIND FORCE IN THIS CONTENTION AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME THE ASSESSMENT DE NOVO AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE : - 4 - : ASSESSEE. IN CASE THE ASSESSEE FAILS TO CO - OPERAT E WITH THE ASSESSING OFFICER, THE ASSESSING OFFICER WOUL D BE AT LIBERTY TO REJECT THE BOOKS OF ACCOUNT AND ESTIMATE THE NET PROFIT RATE AT 8% AS DONE BY HIM IN THE ASSESSMENT ORDER IN VIEW OF THE UNDERTAKING GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE . ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATI STICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH 1 . APPELLANT FEBR UARY, 2016 JJ: 0102 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR