M/s Dinesh Road Carriers, Hyderabad V. Addl.CIT., Nizamabad, Nizamabad

ITA 974/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53684 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MAYA MAHESWARI
• Assessee Lawyers: TEJ PRAKASH TOSHNIWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.974/HYD/2011 (ASSESSMENT YEAR 200 6-07) M/S. DINESH ROAD CARRIERS, BHAINSA, ADILABAD DIST. ( PAN AAEFD 4948 G) V/S. ADDL. COMMISSIONER OF INCOME- TAX NIZAMABAD. (APP E L L ANT) (RESPONDENT) APPELLANT BY : SHRI TEJ PRAKASH TOSHNIWAL RESPONDENT BY : SMT. MAYA MAHESWARI DATE OF HEARING 6.9.2011 DATE OF PRONOUNCEMENT 4.10.2011 O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2006-07 IS DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME- TAX(APPEALS). 2. GROUNDS OF APPEAL NO. 2 AND 5 OF THE ASSESSEE A RE AS UNDER- .. 2) THE REMAND REPORT CALLED FOR BY THE COMMISSIONER OF INCOME- TAX(APPEALS) TO WHICH COUNTER WAS FILED AND STATED ABOUT THE PRODUCTION OF BOOKS OF ACCOUNTS, WHICH THE COMMISSI ONER OF INCOME-TAX(APPEALS) IGNORED NOR VERIFIED THE DOCKET SHEETS OF THE ADDL. COMMISSIONER OF INCOME TAX, NIZAMABAD BEF ORE WHOM THE PETITIONER HAVE APPEARED AND PRODUCED THE BOOKS OF ACCOUNTS ALONGWITH THE DOCUMENTS TO SUBSTANTIATE ITS CLAIM OF INCOME AT 2.48%. THUS THE ORDER OF THE COMMISSIO NER OF INCOME-TAX(APPEALS) IN IGNORING THE DOCKET PROCEEDI NGS OF THE ADDL. COMMISSIONER OF INCOME-TAX IS QUITE CONTR ARY TO LAW. 5) HAVING PRODUCED ALL THE DOCUMENTS INCLUDING THE TERMS OF TRANSPORTATION ISSUED BY M/S. ADANI LIMITED DIRECTI NG US TO ITA NO.974/H/2011 M/S.DINESH CARRIERS, BHAINSA 2 MAKE LOADING AND UNLOADING PLATFORM AT THE RAILWAY STATION FOR THE PURPOSE OF LOADING RAILWAY RAKE TO TRANSPOR T THE IRON ORE, COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO H AVE CONSIDERED THE HARDSHIP FACED BY THE PETITIONER. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS IN POSSESSION OF THE BOOKS OF ACCOUNT AND OTHER SUPPORTING DOCUMENTS, WHICH WERE NOT VERIFIED BY TH E ASSESSING OFFICER OR THE CIT(A). HE SUBMITTED THAT THE ACCOU NT BOOKS WERE WITH ONE OF THE PARTNERS OF THE ASSESSEE FIRM, AND BY TH E TIME, HE WAS ABLE TO BRING AND PRODUCE THE SAME, THE ASSESSMENT OF THE ASSESSEE WAS GETTING TIME-BARRED AND THEREFORE, THE ASSESSIN G OFFICER WITHOUT VERIFYING THE SAME HAS APPLIED A FLAT RATE OF PROFI T ON THE GROSS BILL AMOUNTS OF THE ASSESSEE. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OP POSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSE SSEE. SHE SUBMITTED THAT AMPLE OPPORTUNITY WAS ALLOWED BY THE ASSESSING OFFICER AS WELL AS THE CIT(A) TO PRODUCE THE BOOKS OF ACCOUNT AND OTHER RELEVANT DOCUMENTS BEFORE THE REVENUE AUTHORI TIES, WHICH ASSESSEE FAILED TO AVAIL FOR NO VALID REASON. SHE R EFERRED TO THE RELEVANT PORTIONS OF THE ORDER OF THE CIT(A) AND IN PARTICULAR PAGE-8 OF THE APPELLATE ORDER OF THE CIT(A) WHEREIN RELEVA NT PORTION OF THE REMAND REPORT OF THE ASSESSING OFFICER HAS BEEN EXT RACTED. SHE SUBMITTED THAT THE ASSESSEE WAS NON-COOPERATIVE WIT H THE DEPARTMENT, AND THEREFORE, IT DOES NOT DESERVE A FR ESH OPPORTUNITY TO PROVE ITS CASE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND THAT THE CIT(A) HAS REPRODUCED THE REMAND REPORT SUBMITTED B Y THE ASSESSING ITA NO.974/H/2011 M/S.DINESH CARRIERS, BHAINSA 3 OFFICER, WHEREIN IT HAS BEEN NOTED THAT ON 23.3.20 10, THE ASSESSEE HAS PRODUCED COMPUTERISED LEDGER AND DAY BOOK, SOME VOUCHERS FOR LORRY RENT, COPY OF THE AGREEMENT WITH M/S. ADANI E XPORTED LTD. THEREAFTER, THERE WERE NUMBER OF ADJOURNMENTS GIVEN TO THE ASSESSEE TO PRODUCE DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CASE. WE FIND THAT THE ASSESSEE FIRM WAS IN EXISTENCE FOR P ART OF THE YEAR ONLY AND THIS WAS THE FIRST YEAR OF BUSINESS OF THE ASSE SSEE, WHICH WAS CLOSED DURING THE YEAR ITSELF. THE LEARNED COUNSEL FOR THE ASSESSEE HAS EXPLAINED THE DIFFICULTY DUE TO WHICH IT COULD NOT PRODUCE THE ENTIRE BOOKS OF ACCOUNT AND RELEVANT DOCUMENTS BEFO RE THE REVENUE AUTHORITIES. IN THE FACTS OF THE CASE, WE ARE OF T HE VIEW THAT IT SHALL BE IN THE INTERESTS OF JUSTICE TO SET ASIDE THE ORD ER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO PASS A DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW, AFTER ALLOW ING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. ASSE SSEE IS DIRECTED TO PRODUCE THE RELEVANT BOOKS OF ACCOUNT AND OTHER SUP PORTING DOCUMENTS BEFORE THE CIT(A) AT THE FIRST AVAILABLE OPPORTUNITY AND SHALL COOPERATE IN THE MATTER OF DISPOSAL OF ITS FI RST APPEAL BEFORE THE CIT(A). SINCE WE HAVE SET ASIDE THE ORDER OF THE CIT(A) FOR PASSING A DE NOVO ORDER, WE ARE NOT ADJUDICATING THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE COURT ON 4.1 0.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 4 TH OCTOBER, 2011 ITA NO.974/H/2011 M/S.DINESH CARRIERS, BHAINSA 4 COPY FORWARDED TO: 1. M/S. DINESH ROAD CARRIERS, (BHAINSA, ADILABAD D IST.) C/O. M/S. TEJPRAKASH TOSHNIWAL, ADVOCATE, 4-1-6/B/4,RAMKOTE, HYDERABAD 500 095. 2. ADDL. COMMISSIONER OF INCOME-TAX NIZAMABAD. 3. COMMISSIONER OF INCOME - TAX(APPEALS) VI, HYDERABAD 4. COMMISSIONER OF INCOME - TAX V HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S