M/s Kohli Transport Co., Sitapur V. Asstt. Commissioner of Income Tax, Sitapur

ITA 833/LKW/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2044 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PINKI MAHAVAR
• Section: 40A(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.833/LKW/2014 ASSESSMENT YEAR 2009-10 ASST. COMMISSIONER OF INCOME TAX, SITAPUR. VS M/S KOHLI TRANSPORT, CHAURAHA, SITAPUR - 261001 PAN AAFFK 1942 E (RESPONDENT) (APPELLANT) SHRI M.T. RIZVI, ADVOCATE APPELLANT BY SMT. PINKI MAHAVAR, D.R. RESPONDENT BY 27 /07/2015 DATE OF HEARING 31 /08/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A)-BAREILLY DATED 04/08/2014 FOR THE ASSESSMENT YE AR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE LD. AUTHORITIES BELOW HAS NOT BEEN FAI R IN APPLYING A NET PROFIT OF 8% CARRIAGE WORK WHEN 2. THAT IS THE ASSESSMENT YEAR 2005-06 IS SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE CIT(A) HAD APPLIED N.P. A T 4.5% WHICH HAD BEEN REDUCED TO 3% BY THE LEARNED MEMBERS OF THE HONBLE TRIBUNAL. 3. THAT THE APPELLANT HAD SHOWN BETTER RESULTS (ALM OST DOUBLE OF LAST YEAR) WITH N.P. RATE AT 5% WHICH SHO ULD HAVE BEEN ACCEPTED. 4. THAT THE BOOKS OF ACCOUNTS WERE DULY AUDITED BY THE REGISTERED C.A. COULD NOT BE PRODUCE BEFORE THE LEA RNED A.O. DUE TO DISPUTE AMONG THE PARTNERS. 5. THAT ANY OTHER GR. OF APPEAL THAT MAY BE TAKEN A T THE TIME OF HEARING. 2 3. LEARNED A.R. OF THE ASSESSEE REITERATED SAME CON TENTIONS, WHICH WERE RAISED BEFORE THE LD. CIT(A). LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION. WE FIND THAT THE ISSUE IN DISPUTE WAS DECIDED BY THE LD. CIT(A) BY MAKING FOL LOWING OBSERVATIONS ON PAGES 2 AND 3 OF HIS ORDER, WHICH ARE REPRODUCED BE LOW FOR THE SAKE OF READY REFERENCE:- I HAVE PERUSED THE ASSESSMENT ORDER AND HAVE GONE THROUGH THE SUBMISSIONS OF THE COUNSEL FOR THE APPELLANT. PERUS AL OF THE ASSESSMENT ORDER SHOWS THAT DESPITE VARIOUS OPPORTU NITIES GIVEN BY THE ASSESSING OFFICER THE APPELLANT HAS NOT PRODUCE D THE BOOKS OF ACCOUNT / BILLS AND VOUCHERS IN RESPECT OF EXPENSES CLAIMED. THE APPELLANT IS ENGAGED IN THE TRANSPORT BUSINESS. IN THE CIRCUMSTANCES THE AO APPLIED A NP RATE OF 8% AND ALLOWED SALARY A ND INTEREST PAID TO PARTNERS. IN APPEAL ALSO THE COUNSEL HAD NOT MAD E A CLAIM THAT IT HAD MAINTAINED SUCH DOCUMENTS ON THE BASIS OF WHICH THE INCOME COULD BE COMPUTED. THE GROSS RECEIPTS OF THE APPELL ANT WERE AT RS. 4,37,76,181/- THE APPELLANT HAD RETURNED INCOME OF RS. 10,62,743/- THE ONLY SUBMISSION OF THE ASSESSEE'S AR IS THAT IN THE PREVIOUS YEARS THE AO APPLIED THE NET PROFIT RATE OF 4.5% WH ICH WAS REDUCED TO 3.5% IN AY 2005-06. THE FURTHER CLAIM OF THE APP ELLANT IS THAT IT HAD SHOWN BETTER RECEIPTS, THEREFORE THE APPLICATIO N OF NP RATE OF 8% IS NOT JUSTIFIED. FROM THE SUBMISSIONS, PERUSAL OF THE ASSESSMENT ORDER, IT IS CLEAR THAT THE APPELLANT HAD NOT MAINT AINED BOOKS OF ACCOUNT TO JUSTIFIED THE INCOME RETURNED. THE APPEL LANT IS A TRANSPORTER. IN THESE FACTS OF THE CASE AND CIRCUMS TANCES IN THE YEAR UNDER APPEAL, I FIND NO CASE TO INTERFERE WITH THE ACTION OF THE AO IN APPLYING NP RATE OF 8% PARTICULARLY WHEN THE AO HAS ALLOWED THE DEDUCTION OF SALARY AND INTEREST PAID TO PARTNERS. 5. WE HAVE GONE THROUGH THE FULL ORDER OF THE LD. C IT(A) AND WE ALSO FIND THAT IN THE ASSESSMENT ORDER, IT IS NOTED BY THE AO THAT THE ASSESSEE WAS ASKED TO PRODUCE BOOKS OF ACCOUNT, BILLS AND VOUCHE RS IN RESPECT OF THE EXPENSES CLAIMED UNDER ALL HEADS, BUT THE ASSESSEE COULD NOT PRODUCE THE SAME. THEREAFTER, AS PER ORDER SHEET ENTRY DATED 09 .12.11, THE AO CONFRONTED THE ASSESSEE THAT IN ABSENCE OF BOOKS OF ACCOUNT, B ILLS AND VOUCHERS ETC., HOW THE BOOKS RESULT SHOWN BY THE ASSESSEE SHOULD BE AC CEPTED. THE AO ALSO ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY 8% OF NE T PROFIT OF GROSS RECEIPT OF RS.4,37,76,181/- SHOULD NOT BE APPLIED. THE AO O BSERVED THAT LD. COUNSEL FOR THE ASSESSEE SUBMITTED NOTHING ON THIS ISSUE. H ENCE, IT IS SEEN THAT IN THE 3 PRESENT CASE, THE ASSESSEE HAS NEITHER PRODUCED BOO KS OF ACCOUNT NOR BILLS AND VOUCHERS ETC. BEFORE THE AO OR BEFORE THE LD. C IT(A) OR BEFORE US. WHEN THE ASSESSEE IS NOT PRODUCING THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS ETC. BEFORE THE ASSESSING AUTHORITIES, THE INCOME OF THE ASSESSEE HAS TO BE ESTIMATED AND FOR SUCH ESTIMATION, THIS FACTOR IS A LSO RELEVANT THAT IN THE ABSENCE OF BOOKS OF ACCOUNT, BILLS AND VOUCHERS ETC . THERE MAY BE EXTRA EXPENSES BOOKED BY THE ASSESSEE AND THERE MAY BE CH ANCES OF CASH PAYMENTS EXCEEDING THE PRESCRIBED LIMIT RESULTING I NTO DISALLOWANCE U/S 40A(3) OF THE ACT. REGARDING RATE ACCEPTED IN EARLI ER YEARS, WE ARE OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF BOOKS OF ACCOUNT, BILLS AND VOUCHERS ETC. SUCH LOWER PROFIT RATE IN EARLIER YEARS ALONE CANNOT BE A SOLE BASIS FOR ESTIMATION OF THE INCOME OF THE ASSESSEE PARTICULAR LY WHEN THIS IS SHOWN BY THE ASSESSEE BEFORE US OR THE AUTHORITIES BELOW THA T IN EARLIER YEARS ALSO, NEITHER BOOKS WERE PRODUCED AND NOR ANY BILLS & VOU CHERS WERE PRODUCED IN SPITE OF ASKING BY THE A.O. CONSIDERING THE FACTS A S DISCUSSED, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A ). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31/08/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. RE GISTRAR