ACIT, Rajahmundry V. Arun Kumar Mishra, Rajahmundry

MA 1/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7525 (ITAT-VISAKHAPATNAM)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-01-2018
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M. A.NO. 01 /VIZ/201 8 (ARISING OUT OF I.T.A.NO.384/VIZ/2014 ( / ASSESSMENT YEAR: 20 09 - 1 0 ) ASST.COMMISSIONER OF INCOME TAX CIRCLE - 1(1) RAJAHMUNDRY VS. SRI ARUN KUMAR MISHRA PROP : S.V.CONSTRUCTIONS D.NO.5 - 45, NEAR SBI KOTHAPETA ROAD DOWLAISWARAM EAST GODAVARI DIST. [PAN : AFXPM1890E] ( / APPELLANT) ( / RESPONDENT) ./ I.T.A. NO.239/VIZ/2014 ( / ASSESSMENT YEAR: 2010 - 11) ASST.COMMISSIONER OF INCOME TAX CIRCLE - 1 RAJAHMUNDRY VS. SRI ARUN KUMAR MISHRA PROP : S.V.CONSTRUCTIONS D.NO.5 - 45, NEAR SBI KOTHAPETA ROAD DOWLAISWARAM EAST GODAVARI DIST. [PAN : AFXPM1890E] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SMT. SUMAN MALIK, D R / RESPONDENT BY : NONE / DATE OF HEARING : 26 . 04. 201 9 / DATE OF PRONOUNCEMENT : 30 .04. 201 9 2 M .A. NO . 01 /VIZ/201 8 AND I.T.A. 239/VIZ/2014 SRI ARUN KUMAR MISHRA, RAJAHMUNDRY / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 11, MUMBAI VIDE APPEAL NO.CIT(A) - 11/ITA - 457/2011 - 12 DATED 27.02.2014 FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. THE ASSESSEE IS ENGAGED IN THE CIVIL CONTRACT WORKS . F OR THE A.Y.2009 - 10 THE ASSESSMENT WAS COMPLETED U/S 144A OF THE INCOME TAX A CT BY AN ORDER DATED 29 . 12 . 2011 ON THE TOTAL INCOME OF RS.1,32,37,042/ - AGAINST THE RETURNED INCOME OF RS.16,48,160/ - . IN THE ASSE SSMENT THE ASSESSING O FFICER(AO) MADE THE FOLLOWING ADDITIONS TO THE RETURNED INCOME. (I) 50% DISALLOWANCE OF SUNDRY CREDITORS U/S 68 - RS.47,33,240/ - (II) 50% DISALLOWANCE OF WAGES - RS.85,03,802/ - THE AO MADE THE ABOVE ADDITIONS FOR NON - RESPONSE AND NON - PRODUCTION OF THE REQUIRED INFORMATION AND THE BOOKS OF ACCOUNTS. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DIRECTED THE AO TO ESTIMATE THE INCOME @12.5% ON THE TOTAL CONTR ACT RECEIPTS AND ACCORDINGLY ALLOWED THE APPEAL 3 M .A. NO . 01 /VIZ/201 8 AND I.T.A. 239/VIZ/2014 SRI ARUN KUMAR MISHRA, RAJAHMUNDRY PARTLY. AGAINST THE ORDER OF THE L D .CIT(A) , BOTH THE ASSESSEE AND THE REVENUE HAVE FILED CROSS APPEALS. THE ASSESSEE HAS CHALLENGED THE ESTIMATION OF INCOME @12.5% A S UNREASONABLE AND THE REVENUE CHALLENGED T HE ORDER OF THE CIT(A) STATING THAT THE LD.CIT(A) HAD ADMITTED THE ADDITIONAL EVIDENCE AGAINST THE RULE 46A AND ERRED IN DIRECTING TO ESTIMATE THE INCOME @ 12.5% INSTEAD OF CONFIRMING THE ADDITIONS. 4. THE DEPARTMENT HAS FILED APPEAL MENTIONING THE ASSESS MENT YEAR AS 2010 - 11 IN FORM NO.36 INSTEAD OF 2009 - 10. MEANWHILE THE ASSESSEES APPEAL WAS TAKEN UP FOR HEARING ON 15 . 09 . 2015 AND DISPOSED OF BY AN ORDER DATED 24 . 09 . 2015 AND SCALED DOWN THE ESTIMATION OF INCOME FROM 12.5% TO 6%. THOUGH THE D.R WAS PRESENT AT THE TIME OF HEARING, THE FACT THAT THE DEPARTMENT HAS FILED THE CROSS APPEAL WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL . T HE DEPARTMENTAL APPEAL HAS COME UP FOR HEARING FINALLY ON THIS 26 TH DAY OF APRIL 2019. 5. DURING THE APPEAL HEARING, THE LD.DR BROUGHT TO OUR NOTICE THAT THE DEPARTMENT HAS THE FILED APPEAL FOR THE A.Y.2009 - 10 WHICH WAS NOT MENTIONED BY MISTAKE AT THE TIME OF HEARING THE ASSESSEES APPEAL. LD.DR FURTHER SUBMITTED THAT THE ASSESSEES APPEAL WAS DISPOSED AND THE DEPARTMENTAL APPEAL IS PENDING FOR THE A.Y. 2009 - 10. THEREFORE, THE LD.DR 4 M .A. NO . 01 /VIZ/201 8 AND I.T.A. 239/VIZ/2014 SRI ARUN KUMAR MISHRA, RAJAHMUNDRY REQUESTED TO RECALL THE ORDER OF ASSESSEES APPEAL AND READJUDICATE BOTH THE APPEALS SIMULTANEOUSLY SINCE THE SAME ISSUE IS INVOLVED IN BOTH THE APPEALS. 6. WE HAVE CAREFULLY GONE THROUGH THE APPEAL PAPERS OF THE DEPARTMENT AND OBSERVED THAT THE DEPARTMENT HAS FILED APPEAL FOR THE A.Y. 2009 - 10 MENTIONING THE A.Y.2010 - 11 IN FORM 36, THUS THERE IS NO VALID APPEAL PENDING BEFORE THE COURT FOR THE A.Y.2009 - 10. TH OUGH THE ASSESSEES APPEAL WAS DISPOSED OFF ON 24.09.2015 AND BOTH THE PARTIES WERE PRESENT AT THE TIME OF APPEAL HEARING , NEITHER OF THEM HAVE BROUGHT THE PEND ENCY OF DEPARTMENTAL APPEAL BEFORE TH E TRIBUNAL. W E OBSERVE THAT THE APPEAL FILED BY THE DEPART MENT IS DEFECTIVE IN AS MUCH AS MENTIONING THE A.Y. 2010 - 11 IN FORM NO.36 INSTEAD OF 2009 - 10 AND THE DEPARTMENT DID NOT TAKE STEPS TO CORRECT THE DEFECT IN FORM NO.36, INSPITE OF SUFFICIENT TIME ALLOWED TO THEM. THEREFORE, THE DEPARTMENTAL APPEAL IS INADM ISSIBLE AND A CCORDINGLY DISMISSED IN LIMINE. 7 . THE AO HAS ALSO FILED MISCELLANEOUS APPLICATION AGAINST THE ORDER OF THE TRIBUNAL IN I.T.A NO.384/VIZ/2014 DATED 24.09.2015 FOR THE A.Y. 2009 - 10. 5 M .A. NO . 01 /VIZ/201 8 AND I.T.A. 239/VIZ/2014 SRI ARUN KUMAR MISHRA, RAJAHMUNDRY 8 . IN THE MISCELLANEOUS APPLICATION , THE AO CONTENDED THAT THE ITAT HAS COMMITTED AN ERROR IN DIRECTING THE AO TO ESTIMATE THE INCOME @6% INSTEAD OF CONFIRMING THE ADDITIONS MADE BY THE AO AND SUBMITTED THAT THE ITAT HAS NOT CONSIDERED THE FACT THAT THE ASSESSEE WAS NOT DOING GENERAL CIVIL C ONTRACTS AND ENGAGED IN FABRICATION WORKS. FURTHER THE L D.AO SUBMITTED THAT WHILE ADJUDICATING THE ISSUE , THE REMAND REPORTS SUBMITTED BY THE AO WERE NOT CONSIDERED. 9 . WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE APPEAL ORDERS. WHILE ADJUDICATING THE ISSUE , THIS TRIBUNAL HAS CONSIDERED THE ACTIVITIES OF THE ASSESSEE AND ALSO FOUND THAT THE ASSESSEE IS ENGAGED IN CIVIL AND FABRICATION CONTRACTS. THIS TRIBUNAL HAS GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES AND THE INFORMATION AVAILABLE IN THE PAPER BOOK SUBMITTED BY THE ASSESSEE WITH REGARD TO THE PROFIT MARGINS OF THE EARLIER YEARS AND HELD THAT THE ESTIMATION OF INCOME @6% IS REASONABLE. ACCORDINGLY WE HAVE CONSIDERED ALL THE ISSUES AND DO NOT FIND ANY MISTAKE IN THE ORDER. HENCE THERE IS NO CASE FOR MODIFICATION OR RECTIFICATION OF THE ORDER PASSED BY US. ACCORDINGLY THE MISCELLANEOUS A PPLICATION FILED BY THE REVENUE IS DISMISSED. 6 M .A. NO . 01 /VIZ/201 8 AND I.T.A. 239/VIZ/2014 SRI ARUN KUMAR MISHRA, RAJAHMUNDRY 10 . IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE MISCELLANEOUS APPLICATION OF THE REVENUE ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL 2019. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 30 .04.2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1 . / THE REVENUE ASST.COMMISSIONER OF INCOME TAX, CIRCLE - 1(1) RAJAHMUNDRY 2 . / THE ASSESSEE - SRI ARUN KUMAR MISHRA, PROP : S.V.CONSTRUCTIONS D.NO.5 - 45, NEAR SBI, KOTHAPETA ROAD, DOWLAISWARAM, EAST GODAVARI DIST. 3. / THE COMMISSIONER OF INCOME TAX , RAJAHMUNDRY 4. ( ) / THE COMMISSIONER OF INCOME - TAX (APPEALS) - 11, MUMBAI 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM