THE ITO, V. SHRI OMPRAKASH MAHESHWARIN,

ITA 890/IND/2005

• Counselvise Citation: 89022714 RSA 2005
• Duration Of Justice: 5 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 09-12-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 142(1); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.890/IND/2005 A.Y.2000-01 INCOME TAX OFFICER SHAJAPUR GIR NO. 0-717 APPELLANT VS SHRI OMPRAKASH MAHESHWARI AGAR MALWA SHAJAPUR RESPONDENT C.O. NO. 21/IND/2006 (ARISING OUT OF ITA NO. 890/IND/05) SHRI OMPRAKASH MAHESHWARI AGAR MALWA SHAJAPUR OBJECTOR VS INCOME TAX OFFICER SHAJAPUR RESPONDENT ASSESSEE BY : SHRI P.N.DIXIT DEPTT. BY : SHRI P.K. MITRA O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS IN APPEAL AND THE ASSESSEE PREFERRE D CROSS OBJECTION AGAINST THE IMPUGNED ORDER DATED 28 .9.2005 2 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS), UJJAIN. THE REVENUE HAS RAISED THE FOLLOWING GROUND S :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) ERRED IN REDUCING THE ADDITION FROM RS.7,87,351/- TO RS. 4,46,749/- MADE ON ACCOUNT OF NET PROFIT ADOPTED AT 8%. 2. THE LD. CIT(A) FURTHER ERRED IN DELETING THE ADDITION OF RS. 1,20,537/- MADE IN RESPECT OF DIFFERENCE IN MATERIAL PURCHASED ON THE BASIS OF ENQUIRY REPORT OF THE COMMERCIAL TAX DEPARTMENT. 3. THE LD. CIT(A) FURTHER ERRED IN DELETING THE ADDITION OF RS.1,35,000/- MADE U/S 68 IN THE NAME OF SHRI SURESH KUMAR CHAUDHARY. 4. THE LD. CIT(A) FURTHER ERRED IN DELETING THE ADDITION OF RS. 7,47,685/- MADE IN RESPECT OF OUTSTANDING LABOUR PAYMENTS. 5. THE NLD. CIT(A) FURTHER ERRED IN DELETING THE ADDITION OF RS. 1,62,522/- MADE ON ACCOUNT OF RECEIPT FROM AGAR MUNICIPAL CORPORATION. IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) I S JUSTIFIED IN : A) DELETING THE ADDITION OF RS.1,20,537/- MADE IN RESPECT OF DIFFERENCE IN MATERIAL PURCHASED, ON TH E 3 BASIS OF ENQUIRY REPORT OF THE COMMERCIAL TAX DEPARTMENT. B) DELETING THE ADDITION OF RS. 1,35,000/- MADE U/S 68 IN THE NAME OF SHRI SURESH KUMAR CHAUDHARY. C) DELETING THE ADDITION OF RS. 7,47,685/- MADE IN RESPECT OF OUTSTANDING LABOUR PAYMENTS; AND D) DELETING THE ADDITION OF RS. 1,62,522/- MADE ON ACCOUNT OF RECEIPT FROM AGAR MUNICIPAL CORPORATION . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN A) REJECTING THE GROUND OF APPEAL REGARDING VALIDIT Y OF NOTICE U/S 148. B) DIRECTING THE A.O. TO APPLY N.P. RATE OF 4% ON T HE TOTAL CONTRACT RECEIPTS AS AGAINST N.P. RATE OF 1.54% DIS CLOSED BY THE APPELLANT; AND C) DIRECTING THE A.O. TO SEPARATELY CONSIDER DISALLOWANCE OF EXPENSES FOR PERSONAL ELEMENT IN EXPENSES ON JEEP AND OTHER EXPENSES AS ADDED BACK B Y THE APPELLANT IN THE COMPUTATION OF INCOME HIMSELF. 2. DURING HEARING, WE HAVE HEARD LEARNED REPRESENTA TIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON FILE. AT THE OUTSET, THE LEARNED SENIOR DEPARTMENTAL REPRESE NTATIVE, SHRI P.K. MITRA, STRONGLY CONTENDED THAT THE LEARNE D COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED RE LIEF WITHOUT CONSIDERING THE FACTUAL POSITION AND COMPLE TELY IGNORED THE FACT THAT THE ASSESSEE PRACTICALLY NEVER COOPER ATED WITH THE ASSESSING OFFICER AS THE PROCEEDINGS WERE ADJOURNED ON 14 4 OCCASIONS AGAINST 19 TIMES FIXED FOR HEARING. THE A SSESSEE EITHER DID NOT ATTEND THE PROCEEDINGS OR SOUGHT UNN ECESSARY ADJOURNMENT WITH THE INTENTION TO PROLONG THE MATTE R AND ULTIMATELY THE ASSESSING OFFICER WAS CONSTRAINED TO PASS THE ORDER. OUR ATTENTION WAS INVITED TO PAGES 1 TO 7 O F THE ASSESSMENT ORDER MENTIONING THE FACTS. IT WAS STRON GLY PLEADED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) IGNORED ALL THESE FACTS AND GRANTED RELIEF BY IGNOR ING THE FACTS NARRATED IN THE ASSESSMENT ORDER BY ACCEPTING THE V ERSION OF THE ASSESSEE, THEREFORE, IT WAS PRAYED THAT EITHER THE ADDITION MAY BE CONFIRMED OR THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER. ON THE OTHE R HAND, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ON VARIOUS OCCASIONS THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER BUT SINCE THE REQUIRED DETAILS WERE NOT READILY AVAILABLE OR DUE TO CERTAIN OTHER REASONS HAD TO SEEK ADJOURNMENT. THE IMPUGNE D ORDER WAS DEFENDED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL 5 AVAILABLE ON RECORD. FROM A PERUSAL OF THE ASSESSME NT ORDER IT IS SEEN THAT THE ASSESSEE IS A CONTRACTOR. NOTICE U/S 148 WAS SENT THROUGH SPEED POST WHICH WAS CLAIMED TO BE NOT RECEIVED BY THE ASSESSEE. AGAIN NOTICE U/S 143(2) WAS ISSUE D AND SENT THROUGH SPEED POST TO THE ASSESSEE ON 2.6.2004 WHIC H WAS CLAIMED TO BE SERVED ON 4.6.2004 WITH A REQUEST TO FURNISH THE NECESSARY DETAILS. IN RESPONSE TO THE SAME, ON 15. 6.2004, THE ASSESSEE REQUESTED FOR ADJOURNMENT THROUGH TELEGRAM WHICH WAS ACCEPTED. AGAIN ON 9.7.2004 NOTICES U/S 143(2) AND 142(1) WERE SENT THROUGH SPEED POST FOR 19.7.2004.ON THAT DAY THE ASSESSEE APPEARED BUT DID NOT FURNISH ANY DETAILS. AGAIN THE ASSESSEE ASKED FOR ADJOURNMENT FOR 2.8.2004. THE RE QUEST WAS ACCEPTED AND THE CASE WAS FIXED FOR 31.8.2004. THE ASSESSEE ON 3.8.2004 AGAINST SENT A TELEGRAM REQUESTING FOR ADJOURNMENT. AGAIN THE MATTER WAS ADJOURNED TO 9.9. 2004. THE ASSESSEE AGAIN REQUESTED FOR ADJOURNMENT. THE LEARN ED ASSESSING OFFICER AGAIN SENT NOTICES U/S 143(2) AND 142(1) THROUGH SPEED POST ON 17.9.21004. ON 30.9.2004 NOB ODY APPEARED. ON 18.10.2004 THE ASSESSEE FILED CERTAIN PAPERS 6 WHICH WERE NOT COMPLETE. THE ASSESSEE WAS ASKED TO PRODUCE CERTAIN PERSONS FOR RECONCILIATION. ON 26.10.2004 N OBODY ATTENDED, THEREFORE, THE ASSESSING OFFICER WAS CONS TRAINED TO ISSUE NOTICE U/S 143(2) AS LAST OPPORTUNITY ON 23.1 1.2004 WHICH WAS SERVED ON THE ASSESSEE ON 26.11.2004 FIXING THE CASE FOR 2.12.2004. AGAIN THE ASSESSEE REQUESTED FOR ADJOURN MENT AND THE CASE WAS FIXED FOR 8.12.2004. ON THAT DATE ALS O NEITHER ANYBODY ATTENDED NOR ANY WRITTEN SUBMISSIONS WERE F ILED. AGAINST NOTICE U/S 142(1) WAS ISSUED TO THE ASSESSE E ON 10.12.2004 WHICH WAS SERVED ON THE ASSESSEE ON 18.1 2.2004 FIXING THE DATE OF HEARING FOR 21.12.2004. ON THAT ALSO, NOTHING WAS PRODUCED BEFORE THE ASSESSING OFFICER. THE ASSE SSING OFFICER ISSUED NOTICE U/S 144 OF THE ACT ON 17.12.2 004. IT WAS REQUESTED BY THE ASSESSEE THAT SHRI JAIPRAKASH MAHE SHWARI SHALL BE PRODUCED ON THE NEXT DATE. THE ASSESSEE AS KED ADJOURNMENT UPTO 5.1.2005 WHICH WAS ACCEPTED. ON T HAT DATE THE ASSESSEE ASKED FOR ADJOURNMENT AND REQUESTED TI ME UPTO 10.1.2004 WHICH WAS AGAIN ALLOWED AND SOME DOCUMENT S WERE FILED. THE ASSESSEE FURNISHED PHOTOCOPIES OF DOCUME NTS 7 RELATING TO DIESEL, PETROL EXPENSES, ETC. BUT NO BI LL OR VOUCHER WAS PRODUCED. THE ASSESSEE WAS AGAIN ASKED FOR ADJO URNMENT WHICH WAS GRANTED FOR 27.1.2005. ON THAT DATE NOBOD Y ATTENDED. AGAIN THE ASSESSEE WAS ISSUED NOTICES WH ICH WERE RETURNED WITH THE REMARK DATED 31.1.2005 WENT OUTS IDE AND 1.2.2005 REFUSED TO TAKE. WITHOUT COMMENTING ON EACH AND EVERY DATE IT IS SEEN THAT THE CASE WAS FURTHER ADJ OURNED ON VARIOUS OCCASIONS AND ULTIMATELY ON 7.3.2005 THE AS SESSEE SENT A TELEGRAM THAT THE ASSESSEE IS OUT OF STATION . REQUEST WAS MADE FOR ANOTHER 10 DAYS. FINALLY, ON 14.3.200 5 THE ASSESSEE CONTENDED THAT THEY ARE NOT AVAILABLE UPTO 31.3.2005. ALL THESE DATES/RECORD CLEARLY ESTABLISH THAT THE A SSESSEE WAS NEVER COOPERATED WITH THE ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) WITHOUT COMMENTING UPON THE FACTS MENTIONED IN THE ASSESSMENT ORDER GRANTED RELIEF TO THE ASSESSEE BY ACCEPTING THE SUBMISSIONS OF THE ASSESSEE, THEREFORE, WITHOUT COMMENTING UPON THE MERITS OF THE CASE, WE SET ASID E THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BEING IN 8 CLEAR VIOLATION OF RULE 46A OF THE IT RULES. IT IS ALSO SEEN THAT NOBODY WAS PRESENT ON BEHALF OF THE DEPARTMENT. IN THE ABSENCE OF ANY OPPORTUNITY TO THE ASSESSING OFFICER , WE REMAND THIS FILE TO THE FILE OF THE ASSESSING OFFIC ER WITH THE DIRECTION TO THE ASSESSEE TO APPEAR BEFORE HIM ON A MUTUALLY AGREED DATE. THE ASSESSEE IS DIRECTED TO APPEAR BE FORE THE ASSESSING OFFICER WITHIN 10 DAYS FROM THE RECEIPT O F THIS ORDER. THE ASSESSEE IS FURTHER DIRECTED NOT TO SEEK ANY AD JOURNMENT WITHOUT ANY COGENT REASON AND SHALL FULLY COOPERATE WITH THE ASSESSING OFFICER IN EARLY DISPOSAL OF THE APPEAL. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS IN RESPECT OF PART RELIEF, ETC. IN THE INTEREST OF JUSTICE, THE CROSS OBJECTIONS RAISE D BY THE ASSESSEE ARE ALSO REMANDED BACK FOR CONSIDERATION O F THE ASSESSING OFFICER. FINALLY, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTIONS OF THE ASSESSEE ARE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. 9 ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 6 TH APRIL, 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH APRIL, 2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE DN/- 10