Yeses Infrastructure Pvt.Ltd., Hyd, Hyderabad V. DCIT, Circle-3(3), Hyd, Hyderabad

ITA 926/HYD/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4397 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 22-04-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Additional evidence; Set aside; FORM 26AS
• Section: 22; 131; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 926/HYD/2016 ASSESSMENT YEAR: 2010-11 YESES INFRASTRUCTURE PRIVATE LIMITED, HYDERABAD [PAN: AAACY0786A] VS DCIT, CIRCLE-3(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SAMUEL NAGADESI, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 22-04-2021 DATE OF PRONOUNCEMENT : 21-05-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2010-11 ARISES FROM TH E CIT(A)-5, HYDERABADS ORDER DATED 29-02-2016 PASSED IN CASE NO.0480/2014-15/CIT(A)-5, IN PROCEEDINGS U/S.144 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THIS ASSESSEES INSTANT APPEAL SUFFERS FROM 22 DAYS DELAY STATED TO BE ATTRIBUTAB LE TO THE REASON(S) BEYOND ITS CONTROL AS PER CONDONATION PETITION/AFFIDAVIT DT.16-08-2016. NO REBUTTAL HAS COME FROM ITA NO. 926/HYD/2016 :- 2 -: THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THEREFORE. 3. THE ASSESSEE HAS PLEADED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE IMPUGNED ORDER OF THE CONFIRMING THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS IN LAW AND FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED COMMISSIONER IS ERRED IN CONFIRMING THE ORDER OF AS SESSING OFFICER ESTIMATING THE PROFITS AT 8% OF THE GROSS RECEIPTS AND MAKI NG AN ESTIMATION OF INCOME AT RS.1,79,42,900/-. ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEAMED COMMISSIONER O UGHT TO HAVE ACCEPTED THE INCOME AS RETURNED BY THE APPELLANT AN D OUGHT NOT TO HAVE CONFIRMED ASSESSMENT ON ESTIMATION. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED COMMISSIONER ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS.3,25,72,532/- UNDER SECTION 68 OF TH E INCOME-TAX ACT, 1961. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OUGHT NOT TO HAVE CONFIRMED THE SAME A S ASSESSING OFFICER HAVING RESORTED TO ASSESSMENT UNDER SECTION 144 AT THE BEST OF HIS JUDGMENT OUGHT TO HAVE HELD THAT NO OTHER AD DITION CAN BE MADE PURELY ON SURMISE AND CAPRICE AGAINST THE PRIN CIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED COMMISSIONER ERRED IN LAW AND FACTS OF THE CASE IN MAKING CONFIRMING THE ADDITION OF RS.1,43,573/- ADDITION MADE BY THE ASSESSING OFFICER TREATING THE SAME AS INCOME UNDER THE HEAD INCOME F ROM OTHER SOURCES IGNORING THE FACT THAT THE SAME IS TO BE PA RT OF THE INCOME UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PRO FESSION AND INCLUDED IN THE INCOME RETURNED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LEARNED COMMISSIONER ERRED IN LAW AND FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS. 2,86,324/- AS THE TOTAL INCOME IS R ECOGNIZED BY THE APPELLANT AS PER THE METHOD OF ACCOUNTING REGULARLY EMPLOYED AND THE DIFFERENCE AS PER FORM 26AS IS DUE TO THE DIFFE RENCE IN THE SAME BETWEEN PERSON DEDUCTING THE TAX IN RESPECT OF INCO ME ACCRUED BUT NOT DUE AT THE END OF EACH FINANCIAL YEAR. 6. THE APPELLANT CRAVES LEAVE TO ADD TO/ ALTER! MOD IFY/ CHANGE/ SUBSTITUTE/ AMEND ALL OR ANY OF THE ABOVE GROUNDS. ITA NO. 926/HYD/2016 :- 3 -: 4. LEARNED COUNSEL VEHEMENTLY CONTENDED DURING THE COURSE OF HEARING THAT THE ASSESSEE COULD NOT FILE THE N ECESSARY DETAILS NEITHER DURING ASSESSMENT OR BEFORE THE CIT(A) REGARDING THE TWIN MAIN ISSUES OF ESTIMATION OF 8% OF GROSS PROFIT QUA THE ALLEGED SUB-CONTRACTUAL RECEIPTS RESULTING IN ADDITION OF RS.1,79,42,900/- IN BOTH THE LOWER PROCEED INGS. AND ALSO THAT HE COULD NOT GET CONFIRMATIONS OF THE INVES TOR PARTIES REGARDING SECTION 68 ADDITION OF RS.3,25,72,5 32/-. LEARNED COUNSEL FURTHER UNDERTOOK TO FILE ALL THE RELEV ANT DETAILS AT LEAST QUA THE INSTANT TWIN MAIN ISSUES AS WELL AS THE THIRD AND FOURTH GRIEVANCES RAISED AT ASSESSEES BEHES T; IF AFFORDED YET ANOTHER INNINGS BEFORE THE ASSESSING OFFI CER. 5. MR.PANDEY ON THE OTHER HAND, TOOK US TO THE CIT(A) S DETAILED DISCUSSION MAINLY IN PARA 10.6 THAT HE HAD DU LY FORWARDED THE ASSESSEES ADDITIONAL EVIDENCE TO THE AS SESSING OFFICER; WHO IN TURN ISSUED NOTICES AS WELL, BUT NOBOD Y TURNED UP. THE SAID FINDINGS RELIED UPON AT THE REVENUES B EHEST READ AS UNDER: 10.6 IT IS SIGNIFICANT TO MENTION HERE THAT THESE CLARIFICATIONS AND DETAILS WERE FURNISHED FOR THE FIRST TIME DURING TH E APPEAL PROCEEDINGS. THUS, THESE EVIDENCES WERE TREATED AS ADDITIONAL EVIDENCES UNDER RULE 46A AND ACCORDINGLY THE ASSESS ING OFFICER WAS ASKED TO EXAMINE THE GENUINENESS AND AUTHENTICITY O F THE CLAIM OF THE ASSESSEE WITH REGARD TO SHARE APPLICATION AND UNSEC URED LOAN. THE ASSESSING OFFICER ISSUED SUMMONS UNDER SECTION 131 TO THE INVESTORS / CREDITORS WHICH WERE QUOTED BY THE ASSESSEE. NONE OF THESE INVESTORS APPEARED BEFORE THE ASSESSING OFFICER. SU BSEQUENTLY, THE ASSESSEE COMPANY WAS ASKED TO PRODUCE THESE SHARE A PPLICANTS VIDE HIS SUMMONS DATED 11 JANUARY 2006. THE ASSESSING OF FICER NOTED THAT THE ASSESSEE COMPANY NEITHER PRODUCED THE INVE STORS NOR PRODUCED REQUISITE INFORMATION AS WAS ASKED. HENCE THE ASSESSING OFFICER REQUESTED THAT THE APPEAL MAY BE DECIDED ON MERITS. REMARKABLY, THE. APPELLANT EARLIER ARGUED THAT UNDE R SECTION 68 THE ITA NO. 926/HYD/2016 :- 4 -: ASSESSEE SHALL BE ASKED TO DISCHARGE THE INITIAL BU RDEN OF PROOF CAST UPON HIM AS TO: I) IDENTITY OF THE PERSON; II) CREDITWORTHINESS OF THE PERSON; AND III) GENUINENESS OF THE TRANSACTION. 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ASSESSEES ARGUMENTS SEEKING YET ANOTHER INNINGS BEFOR E THE ASSESSING OFFICER AND FIND NO MERIT FOR THE SOLE REAS ON THAT THE CIT(A) HAD INDEED SOUGHT A REMAND REPORT FROM THE ASSE SSING OFFICER WHEREIN NEITHER THE ASSESSEE NOR ITS SO CALLED INVESTOR PARTIES APPEARED. THIS IS THEREFORE NOT AN INSTANCE WH EREIN ANY AFRESH INNINGS BEFORE THE ASSESSING OFFICER WOUL D SERVE ANY USEFUL PURPOSE ANYMORE. WE THUS DECLINE THE ASSES SEES INSTANT SET ASIDE PLEA AND AFFIRM THE LEARNED LOWER A UTHORITIES ACTION ON ALL ISSUES RAISED AT ITS BEHEST. 7. THIS ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MAY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 21-05-2021 TNMM ITA NO. 926/HYD/2016 :- 5 -: COPY TO : 1.YESES INFRASTRUCTURE PRIVATE LIMITED, C/O. SHRI S AMUEL NAGADESI, CHARTERED ACCOUNTANT, 408, SRI RAMAKRISHN A TOWERS, BESIDE IMAGE HOSPITALS, AMEER PET, HYDERABA D. 2.THE DCIT, CIRCLE-3(3), HYDERABAD. 3.CIT(APPEALS)-5, HYDERABAD. 4.PR.CIT-5, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.