M/S RAVI SHREE NARAYAN TRANSPORT , BHILAI(CG) V. DY. CIT-1, BHILAI(CG)

ITA 8/BIL/2013

• Counselvise Citation: 824714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 18-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: S R RAO
• Keywords: Depreciation; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI REJENDRA, ACCOUNTANT MEMEBR ITA NO.08/BLPR/2013) A.Y. 2007-08 M/S. RAVI SHREE NARAYAN TRANSPORT, VS. D.C.I .T. 1, ACC MAIN GATE, JAMUL, BHILAI. BHILAI, DISTT. DURG (CG). (PAN: AAHFR 7461 F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.R. RAO, ADVOCATE RESPONDENT BY : SHRI D.K. JAIN, SR. D.R. DATE OF HEARING : 18.12.2014 DATE OF PRONOUNCEMENT : 18.12.2014 ORDER PER H.L. KARWA, PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A) RAIPUR DATED 15.03.2010 RELATING TO A.Y. 2007-08 2. GROUND NO.1 OF THE APPEAL READS AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN CONFIRMING ASSESSMENT OF NET PROFIT AT RS.22,43,994 /- BY ESTIMATING THE NET PROFIT RATE @ 5% WITHOUT GIVING ANY COMPARABLE CASES AND WITHOUT CONSIDERING THE FACTS OF THE CASE IN THEIR ENTIRETY . 2 ITA NO .08/BLPR/2013 A.Y. 2007-08 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS TRANSPORTER WHO HAS EXECUTED TRANSPORT-HANDLING CONTRACTS WITH ACC, JAM UL AND BARGAR. FOR THE A.Y. 2007-08, THE ASSESSEE FILED RETURN OF INCOME ON 30. 10.2007 DECLARING TOTAL INCOME OF RS.14,58,460/-. ASSESSMENT WAS FRAMED UNDER SEC TION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON 30.12.2009 DETERM INING TOTAL INCOME AT RS.2,12,32,550/-. THE A.O. MADE ADDITION OF RS.22, 43,994/- AFTER REJECTING THE BOOKS OF ACCOUNT. THE ASSESSEE HAS DECLARED CONTRA CT RECEIPTS AT RS.4,68,79,887/- AND THE A.O. REQUIRED THE ASSESSEE TO PRODUCE BILLS AND VOUCHERS SUPPORTING THE EXPENSES. THE ASSESSEE COULD NOT PRODUCE THE BILLS AND VOUCHERS BUT PRODUCED NEWLY MADE VOUCHES WHICH WERE REJECTED BY THE A.O. BEING NON-VERIFIABLE AND ALSO REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE A.O. WORKED OUT THE NET PROFIT AT RS.23,43,994/- FROM BUSINESS AND PROFESSION AT 5% O F THE TURNOVER AND ALLOWED RS.1,00,000/- AS DEPRECIATION. THE A.O. DISALLOWED REMUNERATION TO PARTNERS UNDER SECTION 184(5) OF THE ACT. ACCORDINGLY THE A.O. CO MPUTED THE INCOME FROM BUSINESS AT RS.22,43,994/-. 4. ON APPEAL, THE LD. CIT(A) HELD AS UNDER :- 3.3 I HAVE GONE THOUGH THE ORDER OF THE A.O. AND T HE SUBMISSION MADE BY THE APPELLANT. BY WRITTEN SUBMISSION DATED 15.03.2010, FILED IN COURSE OF PRESENT PROCEEDINGS, THE APPELLANT HAS ACCEPTED THE NET PROFIT OF 5% AS ASSESSED BY THE A.O. SINCE THE APP ELLANT HIMSELF HAS CONCEDED THE PROFIT DETERMINED BY THE A.O. AS ACCEP TABLE, THE ACTION OF THE A.O. IS UPHELD. THUS, THE ADDITION OF RS.22,43, 994/- IS HEREBY SUSTAINED. 3 ITA NO .08/BLPR/2013 A.Y. 2007-08 5. FROM THE ORDER OF THE LD. CIT(A), IT IS CLEAR TH AT THE ASSESSEE VIDE ITS WRITTEN SUBMISSIONS DATED 15.03.2010 ACCEPTED THE AOS CALC ULATION OF NET PROFIT ON FLAT RATE OF 5% AND, THEREFORE, WE DO NOT SEE ANY MERIT IN THIS GROUND OF APPEAL. IT IS TRUE THAT IF THE ASSESSEE AGREES TO AN ADDITION, HE CANNOT BE AGGRIEVED AND, THEREFORE, WE UPHOLD THE ORDER OF LD. CIT(A) AND REJECT THE GR OUND NO.1 OF THE APPEAL. 6. GROUND NO.2 OF THE APPEAL READS AS UNDER :- 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF RS.1,89,88,550/- MADE U/S 40(A)(IA) OF THE INCOME TAX ACT. 7. THE FACTS RELATING TO THIS ISSUE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. VERIFIED THE TDS FROM THE ACIT (TDS) AND AS PER THE INFORMATION RECEIVED FROM THE SAID AUTHORITY, IT WA S FOUND THAT THE LIABLE AMOUNT FOR DEDUCTION OF TDS ON ACCOUNT OF LABOUR CHARGES WAS R S.14,24,744/-, LIABLE AMOUNT FOR DEDUCTION AND DEPOSIT OF TDS WITH RESPECT TO TR ANSPORTATION CHARGES PAID BY THE ASSESSEE WAS RS.1,52,14,702/- AND THE LIABLE AMOUNT FOR DEDUCTION AND PAYMENT OF TDS WITH RESPECT TO INTEREST PAYMENT WAS RS.23,49,1 04/- TOTALING TO RS.1,89,88,550/-. THE A.O. DISALLOWED THE AMOUNT O F RS.1,89,88,550/- UNDER SECTION 40(A)(IA) OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 8. ON APPEAL, THE LD. CIT(A) UPHELD THE ORDER OF TH E A.O. FOR THE REASONS STATED IN PARAGRAPH NO. 4.3 OF THE IMPUGNED ORDER. 4 ITA NO .08/BLPR/2013 A.Y. 2007-08 9. BEFORE US, SHRI .S.R. RAO, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE NOT PROVIDED R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE ISSUE. H E, THEREFORE, SUBMITTED THAT IN THE INTEREST OF JUSTICE, A REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE IN THE MATTER MAY BE GRANTED AND THE ISSUE MAY BE REMANDED TO THE FILE OF A.O. FOR A FRESH DECISION IN ACCORDANCE WITH LAW. HE FURTHER SUBMIT TED THAT THE A.O. MADE THE DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT WIT HOUT CONSIDERING THE RELEVANT PROVISIONS OF THE ACT. HE ALSO SUBMITTED THAT BOTH THE AUTHORITIES BELOW HAVE NOT GIVEN ANY FINDING AS TO WHETHER TDS PROVISIONS WERE APPLICABLE IN THE INSTANT CASE AND THEY HAVE ALSO NOT MENTIONED THE RELEVANT PROVI SIONS OF THE ACT, IF ANY, APPLICABLE IN THIS CASE. CONSIDERING THE ENTIRE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE O RDER OF THE LD. CIT(A) ON THIS ISSUE AND REMAND THE MATTER TO THE A.O. WITH A DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL IS ALLOWED PARTLY FOR STA TISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2014. SD/- SD/- (RAJENDRA) (H.L. KARWA) ACCOUNTANT MEMBER PRESIDENT RAIPUR, DATED: 18.12.2014 5 ITA NO .08/BLPR/2013 A.Y. 2007-08 PBN/* COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. D.R. ITAT, RAIPUR BENCH, RAIPUR 6. GUARD FILE //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, RAIPUR