Hotel Sai Siddhi Pvt. Ltd., Nashik V. Assistant Commissioner of Income-tax,

ITA 827/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9330 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Rejection of books of accounts; Depreciation; Business expenditure; Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 143(3); 32; 148; 6; 10; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . . / ITA NO S. 827 & 828/PUN/2015 / ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11 HOTEL SAI SIDDHI PVT. LTD. PLOT NO.3/4, POUSH SECTOR - A, AGRA ROAD, LEKHANAGAR, NASHIK - 422 009 PAN : AABCH4310G ....... / APPELLANT / V/S. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, NASHIK. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI ACHAL SHARMA. / DATE OF HEARING : 21.06.2017 / DATE OF PRONOUNCEMENT : 23 .06.2017 / ORDER PER D. KARUNAKARA RAO , A M : THE R E ARE TWO APPEALS FILED BY THE ASSESSEE UNDER CONSIDERATION. THESE APPEALS ARE INVOLVED IN ASSESSMENT YEARS 2009 - 10 AND 2010 - 11. IN THESE APPEALS ARE INVOLVED IN ASSESSMENT YEARS 2009 - 10 AND 2010 - 11. IN THESE TWO APPEALS, ASSESSEE RAISED COMMONLY ISSUE S RELATING VALIDITY OF THE RE - ASSESSMENT MADE U/S 143(3) R.W.S 14 7 OF THE ACT ALONG WITH THE ISSUE RELATING TO ADDITIONS ON MERITS. 2. FOR THE SAKE OF COMPLETENESS OF THE ORDER, GROUNDS RELATING TO ASSESSMENT YEAR 2009 - 10 ARE EXTRACTED AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143 R.W.S IS BAD IN LAW IN AS MUCH AS 2 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 THE ASSESSING OFFICER HAS NEITHER MENTIONS THE REASONS FOR ISSUE OF NOTICE IN THE ASSESSMENT ORDER NOR INTI MATED TO THE ASSESSEE BY WAY OF SHOW CAUSE NOTICE THEREBY DISENABLING THE APPELLANT TO KNOW THE JUSTIFICATION OF ISSUING NOTICE U/S 148. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN PASSING THE ORDER WITHOUT AFFORDING AN ADEQU ATE OPPORTUNITY DESPITE THE REQUEST MADE BY THE APPELLANT OF ITS INABILITY TO FILE THE RELEVANT EVIDENCES BY REASON OF ITS AUTHORIZED REPRESENTATIVE HARD PRESSED WITH THE TIME BARRING SCRUTINY PROCEEDINGS AT NASHIK. 3. ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND WITHOUT PREJUDICE TO ABOVE GROUNDS, THE CIT(A) HAS ERRED IN SUSTAINING THE ESTIMATION OF INCOME BY THE ASSESSING OFFICER AT RS. 10,00,000/ - WITHOUT THERE BEING ANY BASIS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS. 4,82,05,599/ - RELYING ON THE COMPUTATION OF TOTAL INCOME FILED BY THE APPELLANT OVERLOOKING THE FACT THAT ONCE OVERALL ESTIMATION OF NET PROFIT IS MADE BY REJECTING THE BOOKS OF ACCOUNTS AND THEREFORE THE COMPUTATION OF INCOME BASED ON SAID BOOKS OF ACCOUNTS THERE IS NO SCOPE FOR LOWER AUTHORITIES TO MAKE SUCH DISALLOWANCE. THE ABOVE GROUNDS OF APPEAL MAY KINDLY BE ALLOWED TO BE ALTERED, AMENDED, MODIFIED ETC IN THE INTEREST OF NATURAL JUSTICE. 3. BRIE FLY STATED R ELEVANT FACTS OF THE ASSESSEE AND THE ISSUES RAISED IN APPEAL ARE THAT THE ASSESSEE IS ENGAGED IN BUSINESS OF RUNNING HOTEL AT NASHIK AND GOA. THE ASSESSEE DID NOT FILE RETURN OF INCOME U/S 139(1) OF THE ACT. THEREFORE, T HE ASSESSING OFFICER IS SUED NOTICE U/S 14 8 OF THE ACT. IN RESPONSE, THERE IS NO COMPLIANCE BY THE ASSESSEE FOR THE SAID NOTICE. LETTERS DATED 25.08.2011, 30.12.2011, 21.02.2012 AND 31.05.2012 WERE ISSUED ONE AFTER THE OTHER . HOWEVER, THE RESPONSE FROM THE ASSESSEE WAS NOT APPREC IABLE ONE. EVENTUALLY , THE ASSESSEE RESPONDED ONLY TO ASK FOR SOME MORE TIME TO FILE THE RETURN OF INCOME, DOCUMENTS, DETAILS ETC . SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED SERIES OF LETTERS DATED 18.06.2012, 30.11.2012 ETC. EVENTUALLY, THE ASSESSEE FILED RETURN OF INCOME ON 22 ND MARCH, 2 013 CLAIMING LOSS. DURING SCRUTINY ASSESSMENT PROCEEDINGS U/S 143(2) R.W.S 148 OF THE ACT , THE ASSESSEE WAS ASKED TO PRODUCE DETAILS OF DOCUMENTS, ACCOUNTS AND OTHER EVIDENCES IN SUPPORT OF 3 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 CLAIM IN THE RETURN OF LOSS . THE FINANCIAL STATEMENTS WHICH WERE EVENTUALLY FUR NISHED BY THE ASSESSEE WERE UN SIGNED ONE S EITHER BY DIRECTOR OR BY AUDITORS. AS PER THE DISCUSSION GIVEN IN PARA - 3 AND 4 OF THE ASSESSMENT AUDITORS. AS PER THE DISCUSSION GIVEN IN PARA - 3 AND 4 OF THE ASSESSMENT ORDER, THE RE ASSESSMENT WAS COMPLETED AFTE R REJECTING BOOKS OF ACCOUNT S AND AFTER MAKING AD - HOC ADDITIONS . IN THE REASSESSMENT, T HE NET PROFIT OF THE ASSESSEE FROM HOTEL BUSINESS IS ESTIMATED AT RS .10,00,000/ - IN ADDITION TO THE ADDITION OF DISALLOWABLE SUM OF RS.4,82, 05,599/ - . THIS AMOUNT WAS CLAIMED AS DISALLOWABLE ONE IN THE SAID FINANCIAL STATEMENT . THUS, THE SAME WAS DISALLOWED BY THE ASSESSING OFFICER IN THE THUS, THE SAME WAS DISALLOWED BY THE ASSESSING OFFICER IN THE RE ASSESSMENT . THE TOTAL INCOME DETERMINED BY THE ASSESSING OFFICER ( AFTER DEPRECIATION IS ALLOWED) IS RS.1,08,80,999/ - FOR THE ASSESSMENT YEAR 2009 - 10. 4. SIMILARLY IN THE ASSESSMENT YEAR 2010 - 11, THE ASSESSING OFFICER ESTIMATED THE NET PROFIT AT RS. 15,00,000/ - AND DISALLOWED ASSESSEES CLAIM IN THE FINANCIAL STATEMENT AT RS. 6,03,23,291/ - . A FTER ALLOWING DEPRECIATION U/S 32 OF THE ACT , NET INCOME FOR THE A SSESSMENT YEAR 2010 - 11 OF THE ASSESSEE IS RS. 5,17,84,678 / - . THE ASSESSING OFFICER COMPLETED REASSESSMENT PROCEEDINGS FOR BOTH THE ASSESSMENT YEARS VIDE HIS ASSESSMENT ORDER DATED 26 TH MARCH, 2013. 5. DURING FIRST APPELLATE PROCEEDINGS, THE ASSESSEE RAISE D ISSUES 5. DURING FIRST APPELLATE PROCEEDINGS, THE ASSESSEE RAISE D ISSUES RELATING REJECTION OF BOOKS OF ACCOUNTS, ESTIMATION OF PROFIT AND OTHER ADDITIONS AS DESCRIBED ABOVE. THE COMMISSIONER OF INCOME TAX (APPEALS) HAD TO ISSUE VARIOUS OPPORTUNITIES TO THE ASSESSEE TO APPEAR BEFORE HIM ON 08.11.2013, 18.11.2013, 04.04 .2014 , 21.04.2014, 07.11.2014, 12.11.2014 AND 05.03.2015 ETC. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED AT PARA 2.1.2 OF THE IMPUGNED ORDER THAT THE ASSESSEE (APPEALS) OBSERVED AT PARA 2.1.2 OF THE IMPUGNED ORDER THAT THE ASSESSEE IS CAUSING WASTAGE OF RESOURCES OF THE GOVERNMENT IN TERMS OF TIME AND 4 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 MONEY AND BY ISSUIN G NOTICES, ENDLESS OPPORTUNITIES HAVE BEEN GIVEN TO THE ASSESSEE TO PURSUE THE APPEAL. EVENTUALLY, THE COMMISSIONER OF INCOME TAX (APPEALS) PROCEEDS TO DECIDE THE APPEAL BASED ON THE MATERIALS INCOME TAX (APPEALS) PROCEEDS TO DECIDE THE APPEAL BASED ON THE MATERIALS AVAILABLE ON RECORD. REGARDING APPEAL FOR ASSESSMENT YEAR 2009 - 10, THE COMMISSIONER OF INCOME TAX (APPEALS) UTILIZED INFORMATION AVAILABLE ON STATEMEN TS OF FACTS WHICH WAS ENCLOSED WITH THE FORM - 35 OF THE APPEAL MEMO AND DISMISSED THE APPEAL OF THE ASSESSEE. RELEVANT FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEAL S) COMMON FOR BOTH THE APPEALS IS DISCUSSED AT PARA 2.1.12 TO 2.1.18. THE SAME IS REPRODUCED AS UNDER: - DISCUSSED AT PARA 2.1.12 TO 2.1.18. THE SAME IS REPRODUCED AS UNDER: - 2.1.12 DURING THE APPELLATE PROCEEDINGS, THE APPELLANT HAS FURNISHED COPY OF THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNTS FILED BY THE DIRECTORS AND CHARTERED ACCOUNTANT ALONG WITH THE LETTER DATED 12.11.2013. HOWEVER, IN ADDITION TO THESE DOCUMENTS, THE APPEL LANT HAS NOT FURNISHED ANY OTHER DETAILS . 2.1.13 DURING THE HEARING HELD ON 05.03.2015, THE LEARNED AUTHORIZED REPRESENTATIVE OF THE APPELLANT - SHRI AJAY NAGDEV, CA WAS ASKED TO FURNISH ALL THE DETAILS IN SUPPORT OF THE APPELLANT'S GROUNDS OF APPEAL, WH ICH COULD BE FORWARDED TO THE LEARNED AO FOR THE VERIFICATION AND COMMENTS AS THE BE FORWARDED TO THE LEARNED AO FOR THE VERIFICATION AND COMMENTS AS THE APPELLANT HAS NOT FURNISHED BEFORE THE LEARNED AO ANY INFORMATION IN SUPPORT OF TH E INCOME DECLARED BY IT IN THE RETURN OF INCOME. HOWEVER, THE APPELLANT HAS NOT FURNISHED AN Y DETAILS SO FAR. AS STATED ABOVE, THE APPELLANT HAS BEEN GRANTED NUMBER OF OPPORTUNITIES TO PROSECUTE ITS OWN APPEAL. HOWEVER, THE APPELLANT HAS CHOSEN NOT TO AVAIL THE OPPORTUNITIES PROVIDED BY MY PREDECESSOR AND ME . 2.1.14 THE APPELLANT HAS MERELY FU RNISHE D THE PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND STATEMENT OF COMPUTATION OF TOTAL INCOME. HOWEVER, THESE DOCUMENTS ARE ONLY A STARTING POINT FOR VERIFICATION OF THE INCOME DECLARED BY THE APPELLANT IN THE RETURN OF INCOME. IN ABSENCE OF VERIFICATION , THE APPELLANT'S CONTENTIONS CANNOT BE ACCEPTED BY ASSUMING ITS VERIFICATION , THE APPELLANT'S CONTENTIONS CANNOT BE ACCEPTED BY ASSUMING ITS VERSION TO BE CORRECT . 2.1.15 THE APPELLANT HAS ARGUED ON THE BASIS OF SEVERAL COURT DECISIONS AS TO THE LEARNED AOS ACTION OF DISALLOWANCE OF LOSSES AND ESTIMATING ITS INCOME IS IMPROPER . IT HAS CONTENDED THAT IT DID NOT PRODUCE BOOKS OF ACCOUNTS AS THE LEARNED AO DID NOT ASK IT TO PRODUCE BEFORE HIM. IT HAS ALSO ARGUED THAT THE LEARNED AO IS NOT JUSTIFIED IN REWORKING THE SHORT TERM CAPITAL GAIN REALISED ON SALE OF HOTELS. IT HAS ARGUED WITHOUT SUBSTANTIATING ITS ARGUMENT WITH EVIDENCE THAT IT HAD SUBMITTED ASSETS BIFURCATION BETWEEN GOA AND NASHIK HOTELS BEFORE THE LEARNED AO. SIMILARLY, IT HAS STATED WITHOUT ESTABLISHING THAT THE WAIVER OF VAT SIMILARLY, IT HAS STATED WITHOUT ESTABLISHING THAT THE WAIVER OF VAT PERTAINED TO FY 2010 - 11. 5 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 2.1.16 I HAVE CONSIDERED THE APPELLANT'S ARGUMENTS. I FIND THAT THE APPELLANT'S ARGUMENTS ARE MORE OF ACADEMIC IN NATURE. I HAVE NO DISPUTE WITH THE LEGAL DISCOURSE RENDERED BY THE APPELLANT. HOWEVER, THE APPELLANT NEEDS TO PROVE THE FACTS BEFORE THE LEARNED AO. THE APP ELLANT HAS NOT NEITHER PRODUCE D ITS BOOKS OF ACCOUNTS BEFORE THE LEARNED AO NOR IT HAS NEITHER PRODUCE D ITS BOOKS OF ACCOUNTS BEFORE THE LEARNED AO NOR IT HAS PRODUCED BASIC DOCUMENTS, SUCH AS BILLS, INVOICES VOUCHERS ETC ON THE BASIS OF WHICH, ENTRIES IN THE BOOKS OF ACCOUNTS CAN BE JUSTIFIED. THE APPELLANT' S ARGUM ENT THAT TH E AO DID NOT ASK FOR PRODUCTION OF BOOKS OF ACCOUNTS BEFORE HIM AS A REASON FOR NON - PRODUCTION IS RIDICULOUS AS LEARNED AO HAD ASKED THE APPELLANT TO SUBSTANTIATE LOSS RETURNED BY HIM. IN ANY CAS E, IT IS RESPONSIBILITY OF THE APPELLANT TO SUPPORT ITS GROUN DS OF APPEAL WITH NECESSARY EVIDENCE. IF THE APPELLANT IS CHALLENGING THE LEARNED AO'S ACTION OF REJECTION OF ITS BOOKS OF ACCOUNTS IT OUGHT TO PRODUCE THE SAME FOR GETTING IT VERIFIED FROM THE AO UNDER RULE 46A: THE APPELLANT'S LEGAL ARGUMENTS ARE NOT REL EVANT UNLESS THE FACTS ARE ESTABLISHED. DURING APPELLATE PROCEEDINGS ALSO, THE APPELLANT HAS NOT SHOWN ANY KEENNESS TO GET ITS AFFAIRS VERIFIED ALSO, THE APPELLANT HAS NOT SHOWN ANY KEENNESS TO GET ITS AFFAIRS VERIFIED FROM EITHER THE LEARNED AO OR BY THE OFFICE OF THE CIT(A). 2.1.17. THE APPELLANT MAY HAVE INCURRED LOSSES IN THESE YEARS AS THE GOA HOTEL WAS AUCTIONED BY THE DEBT RECOVERY TRIBUNAL. HOWEVER, THE LEARNED AO NEEDS MATERIAL BEFORE HIM SO AS TO ASSIST THE APPELLANT IN DETERMINING ITS CORRECT INCOME OR LOSS. THE APPELLANT HAS NEITHER FILED ORIGINAL RETURN, NOR FILED RETURN U/S 148 IN TIME AFTER IT WAS PROVIDED MANY OPPORTUNITIES, NOR DID PRODUCE BOOKS OF ACCOUNTS BEFORE THE LEARNED AO. THE APPELLANT HAS FOLLOWED SAME APPROACH EVEN DURING THE APPELLATE PROCEEDINGS. IT IS SETTLED THAT LAW FAVOURS VIGILANT A ND NOT INDOLE NT. THEREFORE, THE APPELLANT'S CASE CANNOT BE CONSIDERED ON SYMPATHETIC GROUNDS. 2.1.18 IN ABSENCE OF ANY MATERIAL TO DECIDE ANY GROUND OF APPEAL IN FAVOUR OF THE APPELLANT AND IN VIEW OF THE ABOVE DISCUSSION, I CONFIRM THE TOTAL INCOME ASSESSED BY THE LEARNED AO FOR ALL THREE ASSESSMENT YEARS. ACCORDINGLY, ADDITIONS MADE OF RS. 4,92,05,599 FOR AY 2009 - 10, RS 6,18,23,291 FOR AY 2010 - 11 AND OF RS 19,46,91,052 [( 8,71,24,405 + 21,08,52,079 + 2, 57,37,151 ) - 12,90,22,583 ] FOR AY 2011 - 12 ARE CONFIRMED. 6. AGGRIEVED WITH THE ABOVE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR BOTH THE APPEALS OF BOTH ASSESSMENT YEARS, THE ASSESSEE HAS (APPEALS) FOR BOTH THE APPEALS OF BOTH ASSESSMENT YEARS, THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL WITH THE GROUNDS EXTRACTED ABOVE. AS PER PROCEDURE LAID DOWN, THE TRIBUNAL ISSUED PR ELIMINARY NOTICE AND POSTED TH E CASE FOR HEARING ON 21.06.2017 . THE NOTICE WAS ISSUED WITH ACKNOWLEDGEMENT DUE TO THE ASSESSEE TO THE FOLLOWING ADDRESS I.E HOTEL SAI SIDDHI PVT. LTD , PLOT NO. 3/4 , POUSH SECTOR - A, AGRA ROAD, LEKHANAGAR, NASHIK - 422 009. T HE SAID LETTER WAS RETURNED ON UN - SERVED BY POSTAL NASHIK - 422 009. T HE SAID LETTER WAS RETURNED ON UN - SERVED BY POSTAL AUTHORITY WI TH THE REMARK LEFT. DURING HEARING PROCEEDING, LD. D R FOR THE 6 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 REVENUE EXPLAINED THE CONSISTENT NON - COOPERATION OF THE ASSESSEE IN THE MATTERS OF THE ATTENDANCE TO THE PROCEEDINGS BEFORE THE A SSESSING OFFICER/ COMMISSIONER OF INCOME TAX(APPEALS) AND NOW BEFORE THE OFFICER/ COMMISSIONER OF INCOME TAX(APPEALS) AND NOW BEFORE THE TRIBUNAL . TO SUBSTANTIATE ABOVE, THE LD. DR FOR THE REVENUE READ OUT THE CONTENTS OF THE PARA - 1 & 2 OF THE ASSESSMENT ORDER AND HIGHLIGHTED NON - COOPERATION OF THE ASSESSEE . ABSENCE OF DETAILS IN SUPPORT OF CLAIM OF THE ASSESSEE IN RETURN OF INCOME FILED, REASONS IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT WERE ALSO HIGHLIGHTED. 7. SIMILARLY, BRIN G ING OUR ATTENTION TO THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), LD. DR FOR THE REVENUE HIGHLIGHTED CONTENTS OF PARA 2.1.1 AND PARA 2.1.2 AND VARIOUS OTHER PARAGRAPHS AND MENTIONED THE WAY OF ASSESSEE WAS NOT REACTING TO THE PROCEEDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN A RESPONSIBLE MANNER. AFTER GIVING BACKGROUND OF THE ABOVE FACTS RELATING TO THE ASSESSEES NON - COOPERATION IN THE MATTER RELATING ASSESSMENT, REASSESSMENT AND ADJUDICATION, LD. DR ALSO REQUESTED FOR CONFIRMI NG THE ORDER OF THE CO MMISSIONER OF INCOME TAX (APPEALS) IT ITS ENTIRETY. AS DISCUSSED ABOVE, THE NOTICE WAS NOT RECEIVED BY THE ASSESSEE AT THE GIVEN ADDRESS FOR CORRESPONDENCE. WE HAVE EXAMINED FORM - 36 FOR WANT OF DETAILS OF ADDRESS TO WHICH THE NOTICE M AY BE SENT TO THE ASSESSEE (ITEM NO. 10 OF THE FORM - 36). IT IS NOTICED THAT THE NOTICE WAS SENT BY THE TRIBUNAL TO THE DETAILS ADDRESS GIVEN BY THE ASSESSEE IN THE SAID ITEM NO. 10. CONSIDERING THE ABOVE FACTS, WE ARE OF THE OPINION THAT SENDING ONE MORE N OTICE WILL NOT SERVE ANY PURPOSE AS THERE IS N O ERROR IN THE ADDRESS UTILIZED FOR SENDING NOTICE FOR HEARING ON 21.06.2017. THEREFORE, WE PROCEED TO ADJUDICATE THE GROUNDS BASED ON THE INFORMATION AVAILABLE ON RECORD. 7 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 8. SO FAR AS THE VALIDITY OF THE NOTICE ISSUED U/S 148 AND REASSESSMENT ORDER MADE U/S 143(3) R.W.S 147 ARE CONCERNED, WE FIND, NOTICE ISSUED AND REASSESSMENT MADE SHOULD BE UPHELD CONSIDERING ASSESSEES FAILURE TO FILE REASSESSMENT MADE SHOULD BE UPHELD CONSIDERING ASSESSEES FAILURE TO FILE THE RETURN OF INCOME IN TIME AS PROVIDE D U/S 139(1) OF THE ACT. REGARDING GRANT OF ADEQUATE OPPORTUNITY OF THE COMMISSIONER OF INCOME (APPEALS), WE ARE OF THE VIEW THAT THE SAID GROUND IS NOT SUPPORTED BY ANY EVIDENCE. WE FIND THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED A NUMBER O F OPPORTUNITIES AS DETAILED ABOVE FOR BOTH THE APPEALS AND DECIDED THE CASE OF THE ASSESSEE. THEREFORE, THE GROUND NO. 2 IS ALSO DECIDED THE CASE OF THE ASSESSEE. THEREFORE, THE GROUND NO. 2 IS ALSO DISMISSED. 9. REGARDING THE REJECTING OF CLAIM OF LOSS, AD - HOC ESTIMATION OF RS. 10 LAKHS FOR ASSESSMENT YEAR 2009 - 10 AND RS. 15 LAKHS FOR ASSESSMENT YEAR 2010 - 11 AND FURTHER ADDITION OF RS .4,92,05,599/ - FOR ASSESSMENT YEAR 2009 - 10 AND RS .6,18,23,291/ - F OR ASSESSMENT YEAR 2010 - 11, WE F IND THAT THE ASSESSING OFFICER/ COMMISSIONER OF INCOME TAX (APPEALS) ARE EXTREMELY UNFAIR IN MAKI NG THE AFORESAID ADDITIONS. THEY ARE IN THE NATURE OF MAKING DOUBLE TAXATION OF SAME INCOME. NORMALLY, WHEN THE GP OR INCOME IS ESTIMATION, NO SEPARATE DISALLOWANCE OUT OF EXPENSES IS WARRANTED. FURTHER, THE REASSESSMENT MADE BY THE ASSESSING OFFICER AFTER REJECTING THE BOOK , RESULTS SHOULD BE FAIR AND REASONABLE, MORE SO, WHEN THE EXPARTE OR AD - HOC ADDITIONS ARE INVOLVED. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE CONDUCTED THE HOTEL BUSINESS DURING THE YEAR UNDER CONSIDERATION, ASSETS WERE PUT TO U SE, EXPENDITURE ARE REQUIRED TO BE INCURRED FOR CONDUCTING HOTEL BUSINESS. THEREFORE, T HE ASSESSING OFFICER IS UNDER OB LIGA TION TO ALLOW THE BUSINESS EXPENDITURE AS PER THE PROVISIONS OF THE ACT. HOWEVER , THE ASSESSING OFFICER IS ALLOWED TO MAKE ADDITIONS FOR WANT OF EVIDENCES AND THE SAME SHOULD BE FAIR AND REASONABLE. ASSESSING 8 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 OFFICER SHOULD AVOID MULTIPLE ADDITIONS ON ANY ACCOUNT. WE FIND THE REASSESSMENTS UNDER CONSIDERATION ARE PRIMA FACIE UNREASONABLE AND UNSUSTAINABLE IN THE PRESENT FORUM . FOR EXAM PLE, THE ASSESSING OFFICER UNSUSTAINABLE IN THE PRESENT FORUM . FOR EXAM PLE, THE ASSESSING OFFICER CANNOT ESTIMATE PROFITS OF THE HOTEL BUSINESS ON ONE SIDE AND ALSO ADD ENTIRE BUSINESS EXPENDITURE ON THE OTHER. CONSIDERING THE SAME, WE ARE OF THE VIEW THAT THE MATTERS ON THE MERITS OF ADDITIONS ON BOTH ASSESSMENT YEARS SHOULD BE REMANDED TO THE ASSESSING OFFICERS FILE FOR FRESH REASSESSMENT WITH THE FOLLOWING DIRECTIONS. (1) THE ASSESSING OFFICER SHALL GATHER DATA NEEDED FOR GP/NP ESTIMATION FROM THE COMPARABLE HOTEL GATHER DATA NEEDED FOR GP/NP ESTIMATION FROM THE COMPARABLE HOTEL INDUSTRIES FROM THE COMPARABLE LOCATION/AREA/TOWN AND IF NE CESSARY, RESORT TO ESTIMATION PROVIDED , THE BOOKS OF ACCOUNT FAIL TO MEET THE REQUIREMENT OF THE LAW AND IF THEY ARE ANY WAY TO BE REJECTED; (2) ONCE ESTIMATION OF GP/NP IS DONE, ASSESSING OFFICER SHALL NOT ADD THE EXPENDITURE CLAIM ED IN THE PROFIT AND LOS S ACCOUNT ; (3) ASSESSING OFFICER SHALL ALLOW THE STATUTORY DEDUCTIONS IF ANY, AS PER THE LAW OUT OF THE SAID SHALL ALLOW THE STATUTORY DEDUCTIONS IF ANY, AS PER THE LAW OUT OF THE SAID ESTIMATED PROFITS OF BUSINESS. ASSESSING OFFICER SHALL NOTE THAT THE BEST JUDGMENT ASSESSMENT INVOLVES FAIR JUDGMENT ASSESSMENT. FURTHER, I T GOES W ITHOUT SAYING THAT THE ASSESSING OFFICER SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. THUS, RELEVANT GROUND S OF BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ALLOWED FOR STATISTICAL PURPOSES. 1 0 . IN THE RE SULT, BOTH APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23RD DAY OF JUNE , 2017. SD/ - SD/ - (VIKAS AWASTHY) ( D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 23 RD JUNE , 2017 / PUNE; / DATED : 23 RD JUNE , 2017 9 ITA NO S. 827 & 828/PUN/2015 A.YS. 2009 - 10 & 2010 - 11 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - 12, PUNE. 4. THE CIT - 12, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. //TRUE COPY// / BY ORDER, /ASSISTANT REGISTRAR , / ITAT, PUNE .