Anagh Surface Transport Pvt.Ltd., Hyderabad V. ACIT, Circle-1(1), Hyderabad

ITA 8/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1357 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 02-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: S RAMA RAO
• Section: 143(3); 145; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNA L HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 8/HYD/2012 A.Y. 2004-05 ITA NO. 9/HYD/2012 A.Y. 2005-06 M/S. ANAGH SURFACE TRANSPORT PVT. LTD. HYDERABAD PAN: AADCA2036J VS. THE ASST. CIT CIRCLE-1(1) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI S. RAMA RAO RESPONDENT BY: SMT. AMISHA S.GUPT DATE OF HEARING: 11.03.2013 DATE OF PRONOUNCEMENT: 11.03.2013 O R D E R PER CHANDRA POOJARI, AM: THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST DIFFERENT ORDERS OF THE CIT(A) FOR A.YS. 2004-05 AN D 2005-06. AS THE ISSUES RAISED IN BOTH THESE APPEALS ARE COMM ON IN NATURE, BOTH THE APPEALS ARE CLUBBED TOGETHER, HEAR D TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. THE FIRST ISSUE IN THESE APPEALS IS WITH REGARD TO REJECTION OF BOOKS OF ACCOUNT BY APPLYING PROVISIONS OF SECTI ON 145 OF INCOME-TAX ACT, 1961. THE SECOND GROUND IS WITH RE GARD TO ESTIMATION OF INCOME AT 8% ON GROSS CONTRACT RECEIP TS. THE THIRD GROUND IS WITH REGARD TO NON-ALLOWANCE OF DEP RECIATION ON ASSETS. THE FOURTH GROUND IN ITA NO. 8/HYD/2012 IS WITH REGARD TO TREATING RS. 13,73,337 AS OTHER INCOME WH EN THE INCOME FROM BUSINESS IS ESTIMATED. THE NEXT GROUND IN ITA NO. 9/HYD/2012 IS WITH REGARD TO DETERMINING THE INCOME FROM TRADING IN PETROL BUNK ITEMS AT 2%. IT A NOS. 8 & 9/HYD/2012 M/S. ANAGH SURFACE TRANSPORT PVT. LTD. ============================= 2 3. IN THESE ASSESSMENT YEARS, ASSESSMENT HAS BEEN MADE U/S. 144 BY ESTIMATING THE INCOME OF THE ASSESSEE. THE ASSE SSING OFFICER ESTIMATED THE INCOME OF THE ASSESSEE WHILE FRAMING ASSESSMENT U/S. 144 OF THE ACT ON THE REASON THAT THE ASSESSEE IS VERY NON-COOPERATIVE. IN SPITE OF GIVING AMPLE OPPORTUNITIES TO PRODUCE THE BOOKS OF ACCOUNT AND NECESSARY INFORMATION, THE ASSESSEE FAILED TO PRODU CE THE SAME. BEING SO, THE ASSESSING OFFICER ESTIMATED THE INCOME OF T HE ASSESSEE AT 8% OF THE GROSS RECEIPTS FOR A.Y. 2004-05. THEREAFTER HE ALSO CONSIDERED THE OTHER INCOME SHOWN BY THE ASSESSEE IN THE PROFIT & LOSS ACCOUNT AT RS. 13,73,337 SEPARATELY. AGAINST THIS, THE ASSESSEE I S HAVING A GRIEVANCE. 4. FOR A.Y. 2005-06 ALSO THE ASSESSEE FAILED TO PRODUC E BOOKS OF ACCOUNT. ASSESSMENT WAS COMPLETED U/S. 144 OF THE ACT AND ASSESSING OFFICER ESTIMATED THE INCOME AT 8% OF THE GROSS REC EIPTS AND ALSO ESTIMATED 4% ON TRADING RECEIPTS AS INCOME OF THE A SSESSEE. AGAINST THIS ALSO, THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE FIRST GROUND IN THESE APPEALS. TH E ASSESSING OFFICER ESTIMATED THE INCOME OF THE ASSESSEE BY APP LYING THE FLAT RATE AT 8% OF THE GROSS CONTRACT RECEIPTS AND 4% OF TRADING RECEIPTS BECAUSE THE ASSESSEE FAILED TO PRODUCE THE BOOKS OF ACCOUNT. T HE ASSESSEE HAS TAKEN ONE OR THE OTHER LAME EXCUSES IN NOT PRODUCING THE BOOKS OF ACCOUNT. IN OUR OPINION, FAILURE ON THE PART OF THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT FORCED THE ASSESSING OFFICER TO ESTIMATE IN COME OF THE ASSESSEE. THE ASSESSEE IS LIABLE TO PRODUCE REQUISITE BOOKS O F ACCOUNT WITH DETAILS WHENEVER THE ASSESSING OFFICER CALLED FOR THE SAME WHILE FRAMING ASSESSMENT U/S. 143(3) OF THE ACT. IF THE ASSESSEE FAILS TO PRODUCE THE BOOKS OF ACCOUNT, THE ASSESSING OFFICER HAS NO OPTI ON. ESTIMATION OF INCOME IS THRUST UPON HIM. THE ASSESSEE CANNOT FIN D FAULT IN THE ACTION OF THE ASSESSING OFFICER. WE MADE IT CLEAR TO THE AR THAT THE ASSESSEE CANNOT PLEAD THAT BOOKS OF ACCOUNT ARE NOT AVAILABL E. THE ASSESSEE IS A PRIVATE LIMITED COMPANY. IT IS REQUIRED TO FILE AU DITED ANNUAL ACCOUNTS WITH REGISTRAR OF COMPANIES UNDER COMPANIES ACT, AS WELL AS WITH THE IT AUTHORITIES U/S. 44AB OF THE ACT ALONG WITH AUDI TED RETURN. THE IT A NOS. 8 & 9/HYD/2012 M/S. ANAGH SURFACE TRANSPORT PVT. LTD. ============================= 3 ASSESSEE CANNOT SAY THAT IT HAS LOST OR MISPLACED T HE BOOKS OF ACCOUNT YEAR BY YEAR. AS POINTED OUT BY THE DR THIS IS NOT ONE YEAR THE ASSESSEE IS STATING THAT BOOKS OF ACCOUNT ARE NOT AVAILABLE. THE STORY OF THE ASSESSEE IS CONTINUING IN SUBSEQUENT YEARS ALSO. 6. CONSIDERING ALL THESE FACTS, IN OUR OPINION, IT IS APPROPRIATE TO REMIT THE ENTIRE ISSUE BACK TO THE FILE OF THE ASSE SSING OFFICER WITH A DIRECTION TO THE ASSESSEE TO PRODUCE THE BOOKS OF A CCOUNT WITH ALL RELEVANT DETAILS AS CALLED FOR AND COOPERATE WITH T HE DEPARTMENT IN COMPLETING THE ASSESSMENT IN ACCORDANCE WITH LAW. EVEN THIS TIME, THE ASSESSEE FAILS TO PRODUCE THE BOOKS OF ACCOUNT, THE ASSESSING OFFICER IS AT LIBERTY TO DECIDE THE ISSUES IN ACCORDANCE WITH LAW. 7. AS WE HAVE REMITTED THE ENTIRE MATTER BACK TO THE F ILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN THESE TWO APPEALS BECOME INFRUCTUOUS. ACCORDINGLY, NOT ADJUDICATED. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11 TH MARCH, 2013. SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 11 TH MARCH, 2013 TPRAO COPY FORWARDED TO: 1. M/S. ANAGH SURFACE TRANSPORT PVT. LTD., C/O. SRI S. RAMA RAO, ADVOCATE, 3-6-643, SHRIYA'S ELEGANCE, FLAT NO. 102, ST. NO. 9, HIMAYATHNAGAR, HYDERABAD-29. 2. THE ASST. CIT, CIRCLE - 1(1), HYDERABAD. 3. THE CIT(A) - II, HYDERABAD. 4. THE CIT - I, HYDERABAD 5. THE DR B' BENCH, ITAT, HYDERABAD.