Talluri Shalini, Ongole V. ITO, Ongole

ITA 838/HYD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3328 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 07-07-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Assessee Lawyers: A V RAGHURAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A' , HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.838/HYD/09 (ASSESSMENT YE AR 2005-06) SMT. TALLURI SHALINI, ONGOLE. ( PAN ADGPT 5634 E ) V/S. INCOME-TAX OFFICER, WARD II, ONGOLE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V.RAGHURAM RESPONDENT BY : SMT. NIVEDITA BISWAS O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2005-06 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME-TAX(APPEALS). 2. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER - 1. THE ORDER OF THE CIT(A) IS CONTRARY TO LAW, WEI GHT OF EVIDENCE & PROBABILITIES OF THE CASE IN SO FAR AS IT IS AGAINS T THE APPELLANT. 2. THE ORDER OF CIT(A) IS NEITHER SOUND REASONABLE NOR JUDICIOUS ON THE FACTS & CIRCUMSTANCES OF THE CASE. 3. THE CIT(A) ERRED IN CONFIRMING THE ORDER OF INCO M E TAX OFFICER WITHOUT ANY REASONABLE OR JUDICIOUS APPROACH & FAILED TO AP PRECIATE THE RELEVANT CONVENTION & PRACTICE PREVALENT AND SIMILA R TO THE BUSINESS OF THE ASSESSEE. 4. THERE IS NO BASIS OR REASONING FOR THE CIT(A) TO CONFIRM THE ORDER OF INCOME TAX OFFICER, WITHOUT CONSIDERING THE OTHER A VAILABLE DATA & INFORMATION SUB MTITED. 5. THE CIT(A) FAILED TO APPRECIATE THE GENUINENESS OF FILING REVISED STATEMENT & THE FACT OF WHICH IS NOT DISPROVED THAN THAT OF SAYING AND ITA NO.838./HYD/09 SMT. TALLURI SHALINI, ONGOLE. 2 REFERRING THAT IT IS A SMALL PIECE AND DUBBED THE G ENUINENESS AND FIDELITY OF THE ASSESSEE. 6. THE CIT(A) OUGHT TO HAVE SEEN THAT FILING OF REV ISED STATEMENT OF AFFAIRS/BALANCE DID NOT DISCLOSE ANY OTHER SOURCE O F INCOME OR ESCAPEMENT OF INCOME IF ANY THAN THE STATEMENT OF A FFAIRS WITH MORE DESCRIPTION AND CLARIFICATION NATURE RECTIFYING THE TECHNICAL DEFECTS IN DATA TRANSFER ETC. 7. THE CIT(A), ONGOLE OUGHT HAVE SEEN AND APPRECIAT ED THE AGREEMENTS OF SUB CONTRACTS ENTERED INTO WHICH ARE SELF EXPLAN ATORY AND HELD THEM AS CORRECT AND FAIR WITHOUT VIEWING THEM AS OTHERWI SE. 8. THE CIT ALSO ERRED IN CONFIRMING THE ORDER OF T HE ASSESSING OFFICER ON THE FOOTING THAT NO FRESH MATERIAL & EVIDENCE WAS F ILED BEFORE HER OTHER THAN THAT FILED BEFORE THE ASSESSING OFFICER. 9. THE COPIES OF ASSESSEES LETTERS DATED 6-12-2006/ 12-11-2007/6-12- 2007/20-12-2007/25-12-2007 (PAGES 37/36/34/32/55) M AY KINDLY BE READ AS PART AND PARCEL OF THESE GROUNDS OF APPE AL AND WHICH ARE HEREWITH ENCLOSED. 10. IN ANY VIEW OF THE MATTER THERE IS NO BASIS TO CONFIRM THE ORDER OF ASSESSING OFFICER BUT SHOULD HAVE ALLOWED THE APPEA L FILED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER AND THE CIT(A) HAVE NOT CONSIDERE D THE REVISED STATEMENT OF ACCOUNT, INCLUDING THE BALANCE SHEET AND ALSO SU B-CONTRACTOR AGREEMENT FILED BEFORE THE ASSESSING OFFICER. HE SUBMITTED T HAT THE ASSESSEE IS A CIVIL CONTRACTOR AND HAS A TURNOVER OF RS.30.61 LAKHS AND THE NET INCOME WAS ESTIMATED BY APPLYING A NET PROFIT RATE OF 8% AS P ROFIT UNDER S.44AD OF THE ACT. HE SUBMITTED THAT WHEN THE INCOME HAS BEEN EST IMATED IN ACCORDANCE WITH THE STATUTORY PROVISIONS OF LAW, THERE WAS NO OCCASION FOR ANY FURTHER ADDITION AND IN THE ALTERNATIVE, THE REVENUE AUTHOR ITIES SHOULD HAVE CONSIDERED THE REVISED STATEMENT OF ACCOUNTS, BALAN CE SHEET AND THE SUBCONTRACTOR AGREEMENT ETC. BEFORE THE COMPUTING T HE INCOME OF THE ASSESSEE. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OP POSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . SHE SUBMITTED THAT THE ASSESSEE HAS FILED THE REVISED STATEMENT OF ACCOUNT AND OTHER DOCUMENTS ONLY AFTER THE NOTICE HAVING BEEN ISSUED BY THE DEP ARTMENT. SHE SUBMITTED ITA NO.838./HYD/09 SMT. TALLURI SHALINI, ONGOLE. 3 THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS O F ITS SUBMISSIONS AND THE ADDITION WAS RIGHTLY MADE BY THE DEPARTMENT. SHE RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND T HAT THE ASSESSEE IS A CIVIL CONTRACTOR AND THE CONTRACT RECEIPTS DURING THE YEA R WAS RS.30,61,550 AND THE NET INCOME WAS ESTIMATED BY APPLYING A NET PROF IT RATE OF 8% AS PER THE PROVISIONS OF S.44AD OF THE INCOME-TAX ACT, 1961. A S FOR THE ADDITION MADE, THE ASSESSEE HAS FILED THE REVISED STATEMENT OF ACC OUNT INCLUDING THE BALANCE SHEET AND ALSO THE SUB-CONTRACTORS AGREEMENT BEFOR E THE ASSESSING OFFICER. IN ALL FAIRNESS, THE ASSESSING OFFICER SHOULD HAVE CONSIDERED THE REVISED STATEMENT OF ACCOUNTS AND OTHER DOCUMENTS FILED BY THE ASSESSEE BEFORE HIM ON MERITS. AS HE FAILED TO DO SO, WE CONSIDER THAT IT SHALL BE IN THE INTERESTS OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITI ES BELOW, AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER, WITH D IRECTIONS TO FRAME THE ASSESSMENT DE-NOVO, AFTER CONSIDERING THE REVISED STATEMENT OF ACCOUNT INCLUDING BALANCE SHEET AND ALSO THE SUB-CONTRACTOR S AGREEMENT OR ANY OTHER EVIDENCE, WHICH THE ASSESSEE MAY RELY IN SUPPORT OF HER CASE AND TO FRAME THE ASSESSMENT AFTER ALLOWING DUE OPPORTUNITY OF H EARING TO THE ASSESSEE. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13.5.2011 SD/- SD/- S (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 13TH MAY, 2011. ITA NO.838./HYD/09 SMT. TALLURI SHALINI, ONGOLE. 4 COPY FORWARDED TO: 1. SMT. TALLURI SHALINI, C/O. M/S. I.K.GUPTA & COM PANY, CHARTERED ACCOUNTANTS, KURNOOL ROAD, ONGOLE-523 002. 2. INCOME-TAX OFFICER, WARD II, HYDERABAD. 3. COMMISSIONER OF INCOME - TAX(APPEALS), GUNTUR 4. COMMISSIONER OF INCOME - TAX, GUNTUR 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S