M/s Deluxe Roadline Pvt. Ltd., Bangalore V. DCIT, Bangalore

ITA 905/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7512 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: V SRINIVASAN
• Keywords: Business income
• Section: 143(3); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI N.V VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER ITA NO.905 & 947/BANG/2016 (ASST. YEAR 2010-11 & 2011-12) M/S DELUXE ROADLINES PVT. LTD., NO.79, 4 TH CROSS, N.R ROAD, KUMBALGUNDI, KALASIPALAYAM, BENGALURE. . APPELLANT PAN AAACD5875F VS. THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE 11(1), BENGALURU. . RESPONDENT APPELLANT BY : SHRI V SRINIVASAN, C.A RESPONDENT BY : SMT. PADMAMEENAKSHI, JCIT DATE OF HEARING : 10-10-2017 DATE OF PRONOUNCEMENT : -10-2017 O R D E R PER SHRI JASON P BOAZ, ACCOUNTANT MEMBER : THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS) - 2, BANGALORE DATED 11/3/2016 AND 29/2/2016 FOR ASST. YEARS 2010-11 AND 2011-12 RESPECTIVELY. ITA NOS.905 & 94 7/B/16 2 2. BRIEFLY STATED, THE FACTS RELEVANT FOR DISPOSAL OF THESE APPEALS ARE AS UNDER:- 2.1 THE ASSESSEE IS A COMPANY CARRYING ON THE BUSI NESS OF FLEET OWNER, TRANSPORT CONTRACTOR AND PETROL PUMP. A SURV EY U/S133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDU CTED AT THE ASSESSEES BUSINESS PREMISES ON 14/7/2011. THE ASSE SSING OFFICER (AO) NOTICED THAT THE ASSESSEE HAD NOT FILED ITS RETURNS OF INCOME WITHIN THE DUE DATE AS SPECIFIED U/S 139 OF THE ACT AND THEREFORE INITIATED PROCEEDINGS U/S 147 OF THE ACT FOR AYS 2 010-11 AND 2011- 12 AND CONSEQUENTLY ISSUED NOTICES U/S 148 OF THE A CT TO THE ASSESSEE ON 17/10/2013. IN RESPONSE THERETO, THE ASSESSEE VI DE LETTER DATED 1/9/2014 REQUESTED THE AO TO TREAT THE RETURNS OF I NCOME FILED ON 16/1/2013 FOR A.Y. 2010-11 AND 4/9/2013 FOR A.Y. 20 11-12 AS RETURNS OF INCOME FILED IN RESPONSE TO THE AFORESAI D NOTICES ISSUED U/S 148 OF THE ACT. THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENTS FOR AYS 2010-11 AND 2011-12 WERE COMPL ETED BY WAY OF SEPARATE ORDERS PASSED U/S 143(3) R.W.S 144 R.W. S 147 OF THE ACT DATED 31/10/2014. IN THE AFORESAID ORDERS OF ASSE SSMENT, THE AO, IN THE ABSENCE OF BOOKS OF ACCOUNT AND VOUCHERS ESTIMA TED THE ASSESSEES INCOME FOR THESE TWO ASST YEARS AT 3% OF THE GROSS RECEIPTS. 2.2 AGGRIEVED BY THE ORDERS OF ASSESSMENT BOTH DATE D 31/10/2014 FOR AYS 2010-11 AND 2011-12, THE ASSESSEE FILED AP PEALS BEFORE THE CIT(A)-2, BANGALORE, WHO DISMISSED THESE APPEALS VI DE ORDERS DATED 29/2/2016; OBSERVING THAT IN SPITE OF THREE OPPORT UNITIES AFFORDED TO ITA NOS.905 & 94 7/B/16 3 THE ASSESSEE, NONE APPEARED ON BEHALF OF THE ASSESS EE AND THEREFORE IT WAS PRESUMED THAT THE ASSESSEE HAD NO EXPLANATION T O OFFER IN THE MATTER. 3 BEING AGGRIEVED BY THE ORDER OF THE CIT(A)-2, BAN GALORE DATED 11/3/2016 FOR THE AY 2010-11 AND DATED 29/2/2016 FO R ASST. YEAR 2011-12, THE ASSESSEE HAS FILED THESE APPEALS BEFOR E THE TRIBUNAL, WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS:- ASST. YEAR 2010-11 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR A S THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN DISPOSING OFF THE APPEAL WITHOUT ALLOWING SUFFICIENT AND REAL OPPORTUNITY TO THE APPELLANT IN COURSE OF THE APPEL LATE PROCEEDINGS UNDER THE FACTS AND IN THE CIRCUMSTANCE S OF THE APPELLANT'S CASE. 3. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WI TH AND CONSEQUENTLY, THE RE-ASSESSMENT REQUIRES TO BE CANC ELLED. 4. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE DETERMINATION OF BUSINESS INCOME ON ESTIMATE BA SIS AT 3% OF THE TURNOVER AND THEREBY ASSESSING A SUM OF R S. ITA NOS.905 & 94 7/B/16 4 1,27,69,007/- AS BUSINESS INCOME UNDER THE FACTS AN D IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE SEPARATE ASSESSMENT OF RS.75,85,890/- AS INCOME FROM OTHER SOURCES UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 6. THE LEARNED CIT[A] OUGHT TO HAVE DISPOSED OFF TH E GROUND RAISED RELATING TO THE ASSESSMENT OF LONG TE RM CAPITAL GAINS AT RS.72,56,354/- WITHOUT ALLOWING TH E EXEMPTION CLAIMED U/S. 54D OF THE ACT UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES ITSELF LI ABLE TO BE CHARGED TO INTEREST U/S 234-A, 234-B AND 234-C O F THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. 8. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR AP PELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUS TICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUN D OF THE INSTITUTION FEES AS PART OF THE COSTS. ITA NOS.905 & 94 7/B/16 5 ASST. YEAR 2011-12 1.THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, W EIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WI TH AND CONSEQUENTLY, THE RE-ASSESSMENT REQUIRES TO BE CANC ELLED. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ESTIMATE OF THE BUSINESS INCOME AT 3% OF THE TURNOV ER THEREBY MAKING A FURTHER ADDITION OF RS. 97.08.474/ - TO THE REPORTED BUSINESS INCOME UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDIN G THE SEPARATE ASSESSMENT OF RS.36,60,457/- AS INCOME FRO M OTHER SOURCES UNDER THE FACTS AND IN THE CIRCUMSTAN CES OF THE APPELLANT'S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES ITSELF LI ABLE TO BE CHARGED TO INTEREST U/S 234-A, 234-B AND 234-C O F THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. ITA NOS.905 & 94 7/B/16 6 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLAN T HUMBLY PRAYS THAT THE APPEAL MAY BE LOWED AND JUSTICE REND ERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTI NG THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITU TION FEES AS OF THE COSTS. 4,1 THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN THESE APPEALS FOR AYS 2010-11 & 2011-12 (SUPRA), IN OUR VIEW, TH E ISSUES TO BE DECIDED BY US BASICALLY RELATES TO THE ESTIMATION O F INCOME BY THE AO AND THE DISPOSAL OF THE APPEALS EXPARTE BY THE LD CIT(A). 4.2 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD AND FIN D THAT THE LD CIT(A) HAS DISPOSED OFF THE APPEALS FOR BOTH AYS 2010-11 AND 2011-12 AFTER OBSERVING THAT NONE APPEARED FOR THE ASSESSEE ON 12 /2/2016. BEFORE THIS, THERE WERE TWO OTHER HEARINGS ON 14/8/2015 A ND 18/12/2015 IN WHICH ALSO NONE APPEARED AND ADJOURNMENT WAS SOUGHT RESPECTIVELY. ACCORDING TO THE SUBMISSIONS OF THE LD AR BEFORE US , NONE APPEARED BEFORE THE LD CIT(A) ON 12/2/2016 SINCE THE ASSESSE ES AR WAS NOT KEEPING WELL. WE ALSO FIND THAT A COORDINATE BENCH OF THIS TRIBUNAL IN ITS ORDER IN ITA NO. 16/BANG/2013 DATED 10/7/2015 I N THE ASSESSEES OWN CASE FOR ASST. YEAR 2009-10 HAS RESTORED THE M ATTER BACK O THE FILE OF THE AO FOR FRESH CONSIDERATION. IN THE AFOR ESAID ORDER, THE COORDINATE BENCH HAS HELD THAT THE INCOME OF THE AS SESSEE HAS TO BE ITA NOS.905 & 94 7/B/16 7 ESTIMATED BASED ON COMPARATIVE CASES OF SIMILAR ASS ESSEES ENGAGED IN TRANSPORTATION BUSINESS. IT IS SEEN THAT THE AO HA S PASSED THE ORDER GIVING EFFECT TO THE TRIBUNAL ORDERED 10/7/2015 FO R AY 2009-10 U/S 143(3) R.W.S 254 OF THE ACT DATED 31/3/2017 AND ARE INFORMED BY THE PARTIES THAT THE APPEAL AGAINST THE SAID ORDER IS P ENDING BEFORE THE CIT(A). SINCE THE ORDERS OF ASSESSMENT FOR ASST. YE ARS 2010-11 AND 2011-12 IN THE CASE ON HAND WERE PASSED VIDE ORDER S 31/10/2014; I.E., BEFORE THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE ASSESSEES CASE FOR ASST. YEAR 2009-10 ON 31/7/2015 , WE ARE OF THE CONSIDERED OPINION THAT IT IS IN THE FITNESS OF THI NGS FOR ALL THESE ASPECTS TO BE CONSIDERED AFRESH SINCE THE AO HAS E STIMATED THE ASSESSEES INCOME AT 3% OF THE GROSS RECEIPTS WITHO UT HAVING EXAMINED ANY COMPARATIVE CASE FOR THESE TWO ASST. Y EARS BEFORE US. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDERS OF THE LD CIT(A), FOR AYS 2010-11 AND 2011-12 WITH THE DIRE CTIONS TO RE- EXAMINE AND DECIDE ALL THESE ISSUES AFRESH IN THESE YEARS, IN THE LIGHT OF THE DIRECTIONS OF THE CO-ORDINATE BENCH AT PARAS 22 OF ITS ORDER IN ITA NO. 16/BANG/2013 DATED 31/7/2015 IN THE ASSESSE ES OWN CASE FOR ASST. YEAR 2009-10; WHICH SHOULD MEET THE ENDS OF J USTICE. WE HOLD AND DIRECT ACCORDINGLY. 5 IN THE RESULT, THE ASSESSEES APPEALS FOR ASST. Y EARS 2001-11 & 2011-12 ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.905 & 94 7/B/16 8 ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH OCTOBER, 2017 . SD/- SD/- (N.V VASUDEVAN) (JASO N P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEM BER BANGALORE DATED : 20/10/2017 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SR. PRIVATE SECRETARY, ITAT, BANG ALORE