Shri Om Prakash Kukreja, New Delhi V. ACIT, New Delhi

ITA 922/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3390 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Non compliance

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NOS.:- 921, 922/DEL /2016 ASSESSMENT YEARS: 2007-08, 2008-09 OM PRAKASH KUKREJA A-37, EAST OF KAILASH NEW DELHI 110 065 PAN AAKPK8092Q VS. ACIT CIRCLE-18, ARA CENTRE, E-2, JHANDEWALAN NEW DELHI. (APPELLANT) (RESPONDENT) O R D E R PER SUDHANSHU SRIVASTAVA, J.M. BOTH THESE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AND THE RELEVANT ASSESSMENT YEARS ARE 2007-08 AND 2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSES SEE IS ENGAGED IN TRADING OF PAINTS AND HARDWARE IN A PROPRIETARY-SHIP CONCER N UNDER THE NAME ASSESSEE BY: SHRI RAJESHWAR PRASAD PAINULY, CA DEPARTMENT BY : SMT. APARNA KARAN, CIT(DR) DATE OF HEARING 06 /11 /2017 DATE OF PRONOUNCEMENT 20/11/ 2017 ITA NOS. 921,922/DEL/2016 OM PRAKASH KUKREJA VS. ACIT 2 AND STYLE OF M/S. SURYA PAINTS & HARDWARE STORE. TH E SALES IN BOTH THE ASSESSMENT YEARS WERE ABOVE THE LIMITS PRESCRIBED U /S 44AB OF THE INCOME TAX ACT, 1961(HEREIN AFTER CALLED THE ACT) . THE AO, HOWEVER, PROCEEDED TO ESTIMATE THE SALES FOR ASSESSMENT YEAR 2007-08 BY APPLYING THE NET PROFIT RATE OF 5% AND ESTIMATED TH E BUSINESS INCOME AT RS. 6,50,000/-. FOR ASSESSMENT YEAR 2008-09, THE IN COME WAS ESTIMATED BY APPLYING THE NET PROFIT RATE OF 5% AND ESTIMATIN G THE BUSINESS INCOME AT RS. 6,00,000/-. 2.1 AGGRIEVED, THE ASSESSEE PREFERRED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY BY RAISING THE PRELIMINARY GROU ND THAT THE SALES HAD BEEN ESTIMATED WITHOUT ANY BASIS AND WITHOUT CONSID ERING THE DULY AUDITED ACCOUNTS AND THAT TREATMENT OF THE CASE AS NO ACCOUNTS CASE WAS ARBITRARY AND UNLAWFUL. HOWEVER, THE LD. CIT (A ) DISMISSED THE APPEALS OF THE ASSESSEE FOR BOTH THE YEARS BY NOTIN G THAT THE ASSESSEE HAD NOT MADE ANY COMPLIANCE EITHER BEFORE THE AO OR BEFORE HIM DURING THE APPELLATE PROCEEDINGS AND ONLY ADJOURNMENTS WER E SOUGHT FROM TIME TO TIME. THE LD. CIT (A) WAS OF THE OPINION THAT TH E ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APPEALS AND THAT THE APPEALS DESERVED TO BE DISMISSED AT THE VERY OUTSET. ON MERITS ALSO, TH E LD. CIT (A) UPHELD THE OBSERVATIONS OF THE AO THAT THE ASSESSEE HAD NO T PRODUCED THE ITA NOS. 921,922/DEL/2016 OM PRAKASH KUKREJA VS. ACIT 3 BOOKS OF ACCOUNTS AND, THEREFORE, THE AO HAD NO OPT ION BUT TO ESTIMATE THE INCOME OF THE ASSESSEE. 2.2 NOW, AGGRIEVED, THE ASSESSEE HAS APPROACH ED THE ITAT AND HAS CHALLENGED THE DISMISSAL OF THE APPEALS BY THE LD. CIT (A). 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE LD. CIT (A) HAD NOT GIVEN PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE AND, THEREFORE, THE ASSESSEE SHOULD BE PROVIDED WITH ANO THER OPPORTUNITY TO EXPLAIN THE FACTS AND PRODUCE THE RELEVANT DOCUMENT S. 4. LD. CIT DR OPPOSED THE PRAYER OF THE LD. AUT HORISED REPRESENTATIVE AND SUBMITTED THAT THE ASSESSEE HAD NOT AVAILED THE VARIOUS OPPORTUNITIES GIVEN BY THE AO AS WELL AS THE LD. CI T (A) AND IT WAS VERY MUCH POSSIBLE THAT THE ASSESSEE WOULD NOT AGAIN DO SO, GIVEN HIS TRACK RECORD, IF THE MATTER IS RESTORED TO THE FILE OF TH E LOWER AUTHORITIES. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE ORDER OF THE LD. CIT(A) FOR ASSESSMENT YEAR 2007-08 SHOWS THAT THE LD. CIT(A) HAS RECORDED THAT THE ASSESSEE WAS GIVEN SEVERAL OPPORTUNITIES DURING THE COURSE OF AP PELLATE PROCEEDINGS BUT NO COMPLIANCE WAS MADE AND ONLY ADJOURNMENTS WER E SOUGHT. THE LD. CIT (A) HAS MENTIONED THE PROCEEDINGS OF THE OR DER SHEET WHEREIN ITA NOS. 921,922/DEL/2016 OM PRAKASH KUKREJA VS. ACIT 4 THE ASSESSEE WAS REQUIRED TO FURNISH VARIOUS DOCUME NTS IN CONNECTION WITH THE APPELLATE PROCEEDINGS. AS PER THE ORDER OF THE LD. CIT (A) FOR ASSESSMENT YEAR 2007-08, IT IS SEEN THAT THE ASSESS EE KEPT ON SEEKING ADJOURNMENTS ON ONE PRETEXT OR THE OTHER EVEN AFTER 19 MONTHS OF HAVING FILED THE APPEAL. SIMILAR OBSERVATIONS HAVE BEEN MADE BY THE LD. CIT (A) IN THE IMPUGNED ORDER FOR ASSESSMENT YEAR 2 008-09. 5.1 WE FIND THAT THE CONDUCT OF THE ASSESSEE I N PURSUING THE MATTERS BOTH BEFORE THE AO AS WELL AS THE LD. CIT (A) HAS B EEN OF UTMOST RECKLESSNESS AND CARELESSNESS. EVEN DURING THE PROC EEDINGS BEFORE US, THE LD. AUTHORISED REPRESENTATIVE COULD NOT STATE, WITH AMPLE EVIDENCE, THE REASON FOR NON COMPLIANCE BEFORE BOTH THE LOWER AUTHORITIES. WE EXPRESS OUR DISPLEASURE AT THE CONDUCT OF THE ASSES SEE AS IT SHOWS LACK OF SERIOUSNESS ON THE PART OF THE ASSESSEE. HOWEVER , CONSIDERING THE TOTALITY OF THE FACTS AND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE BOTH THE APPEALS TO THE FILE OF THE LD. CIT (A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBS TANTIATE HIS CASE AND ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. C IT (A) WITHOUT SEEKING ANY ADJOURNMENT FAILING WHICH THE LD. CIT (A) WILL B E AT LIBERTY TO PROCEED WITH THE ADJUDICATION AS PER LAW. ITA NOS. 921,922/DEL/2016 OM PRAKASH KUKREJA VS. ACIT 5 6. IN THE FINAL RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.11.2017 . SD/- SD/- (B.P. JAIN) (S UDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20.11.2017 VEENA COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI