U.P Projects Corporation Limited, Lucknow V. Dy. Commissioner of Income Tax, Lucknow

MA 17/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3307 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR SENIOR
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 17 /LKW/20 1 5 (ARISING OUT OF I.T.A.NO. 547 / LKW/201 2 ) A.YRS.: 200 9 1 0 M/S U. P. PROJECTS CORPORATION LIMITED , LEFT BANK, GOMTI BARRAGE , GOMTI NAGAR, LUCKNOW . PAN: AA ACU3393F VS. D CIT RANGE VI , LUCKNOW . (A PPLICANT ) (RESPONDENT) A SSESSEE BY SHRI RAKESH GARG, ADVOCATE DEPARTMENT BY SRI PUNEET KUMAR , SENIOR DR DATE OF HEARING 01 / 05 /201 5 DATE OF PRONOUNCEMENT 1 7 /0 6 /201 5 O R D E R PER A. K. GARODIA, A.M. THIS MISC. APPLICATIONS IS FILED BY THE ASSESSEE CLAIMING THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE TRIBUNAL ORDER . 2. IN THE M.A., IT IS SUBMITTED THAT ADMITTEDLY, THE ASSESEE IS ENTITLED TO A FIXED AMOUNT I.E. CENTAGE ONLY WHICH RANGES FROM 5 % TO 12.5% DEPENDING UPON THE NATURE AND AREA OF THE WORK TO BE DONE AND IF THE ADDITION MADE BY THE A.O. IS SUSTAINED, THE GROS S PROFIT WOULD COME TO 29.03% AS AGAINST THE MAXIMUM GROSS PROFIT OF 12.5% (CENTAGE) AND THIS IS IMPOSSIBLE. IT IS SUBMITTED IN THE M.A. THAT THERE IS NO FINDING OF THE TRIBUNAL ON THIS ASPECT. IT IS ALSO SUBMITTED IN THE M.A. THAT IN THE COURSE OF HEARING , IT WAS COMMUNICATED BY THE BENCH THAT THE MATTER ON THIS ASPECT SHALL BE RESTORED BACK TO THE AO TO ADJUDICATE THE ISSUE AFRESH. [ 2 ] 3. LEARNED AR OF THE ASSESSEE REITERATED THE SAME CONTENTIONS AS RAISED IN THE M.A. HE ALSO SUBMITTED THAT THE ASSESSEE HAS S UBMITTED A CHART OF WIP RS. 890,29,14,500 FOR ALL 31 UNITS AND THE WORKING IN RESPECT OF ONE UNIT I.E. AGRA 4 AT SERIAL NO. 4 IS AVAILABLE ON PAGES 134 135 OF T H E PAPER BOOK AS STATED IN THE CHART ALSO AND REFERENCE MADE IN COURS E OF HEARING OF APPEAL. HE ALSO SUBMITTED THAT AS PER THESE TWO PAGES OF PAPER BOOK ALSO ENCLOSED WITH M.A., VALUE OF WIP STOCK HAS BEEN CONSIDERED AFTER ADDING APPROPRIATE CENTAGE AS RECEIVABLE IN THE COST OF PROJECT . HE SUBMITTED THAT IT WAS ARGUED IN COURSE OF HEARING OF THE APPEAL THAT ALTHOUGH THE ASSESSEE HAS FURNISHED DETAILS OF ONE UNIT FOR EXAMPLE, THE MATTER MAY BE RESTORED TO A.O. IF IT IS CONSIDERED NECESSARY THAT THE WORKING FOR ALL UNITS SHOULD BE EXAMINED BY THE A.O. AND THEREUPON, IT WAS INDICATED BY THE BENCH IN COURSE OF HEARING OF THE APPEAL THAT THE MATTER WILL BE RESTORED TO A.O. IF CONSI DERED NECESSARY. LEARNED DR SUBMITTED THAT THE RE IS NO MISTAKE IN THE TRIBUNAL ORDER . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND FORCE IN THE SUBMISSIONS OF LEARNED AR OF THE ASSESSEE THAT WHEN THE ADDITION MADE BY THE A.O. IS RESULTING INTO ABN ORMAL RATE OF G.P. AT 29.03% IN THE FACTS OF PRESENT CASE WHERE ADMITTEDLY, THE ASSESSEES ONLY SOURCE OF INCOME IS CENTAGE WITH MAXIMUM RATE OF 12.5%, THE G.P. RATE CANNOT EXCEED 12.5% EVEN IF ALL WORKS ARE HAVING CENTAGE OF 12.5 % AND THERE IS NO OTHER E XPENSE TO BE BORNE BY THE ASSESSEE , THE MATTER REQUIRES RECONSIDERATION AT A.O. LEVEL BUT THERE IS NO FINDING OF THE TRIBUNAL ON THIS ASPECT IN THE T RIBUNAL ORDER. 5. WE FIND THAT THERE IS NO FINDING OF THE TRIBUNAL ON THIS ASPECT AND IT IS THE CLAIM OF TH E ASSESSEE THAT IT WAS INDICATED BY THE BENCH IN COURSE OF HEARING OF APPEAL THAT THE MATTER WILL BE RESTORED TO A.O. FOR FRESH DECISION. ALTHOUGH WE DOT FIND ANY SUCH NOTING IN OUR LOG BOOK BUT CONSIDERING THESE FACTS THAT THERE IS NO FINDING OF TRIBUNAL ABOUT IMPOSSIBILITY OF G.P. RATE OF 29.03% AND REGARDING THE WORKING OF WIP STOCK ON PAGES 134 135 OF PAPER BOOK SHOWING INCLUSION OF PROFIT IN VALUE OF WIP STOCK FOR ONE UNIT OUT OF 31 [ 3 ] UNITS, WE HOLD THAT THERE IS APPARENT MISTAKE IN THE TRIBUNAL ORDER FOR NOT DECIDING THESE CONTENTIONS. WE, THEREFORE, RECTIFY THE IMPUGNED TRIBUNAL ORDER AND DECIDE THESE ASPECTS. WHEN WE DO SO, WE FIND IT FIT AND PROPER THAT THE MATTER SHOULD GO BACK TO THE A.O. FOR A FRESH DECISION ON TWO ASPECTS THAT WHETHER THE VALUE OF WIP STOCK DECLARED BY THE ASSESSEE AT RS. 890,29,14,500 FOR ALL 31 UNITS IS INCLUSIVE OF CORRECT CENTAGE OR NOT. FOR THIS PURPOSE, THE ASSESSEE SHOULD FURNISH BEFORE THE A.O. THE WORKING OF THE VALUE OF WIP STOCK OF THE WHOLE AMOUNT OF RS. 890,29,14,500 FOR ALL 31 UNITS AND THEREAFTER, THE A.O. SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESEE. AFTER DECIDING THIS ASPECT, THE A.O. WILL COME TO THE CONCLUSION AS TO HOW MUCH ADDITION IS CALLED FOR , IF ANY, ON ACCOUNT OF NON INCLUSION OF CENTAGE IN WIP STOCK VALUE. AT THAT STAGE, THE A.O. SHOULD ALSO ALLOW OPPORTUNITY TO THE ASSESSEE TO BRING ITS OBJECTIONS ON RECORD AS TO HOW MUCH IS THE G.P. RATE AFTER SUCH RECOMPUTED ADDITION , IF ANY, AND HOW SUCH GP RATE IS EXCESSIVE, UNREASONABLE OR IMPROBABLE. THE A.O. SHOULD DECIDE THOSE OBJECTIONS ALSO, IF ANY BROUGHT BEFORE THE A.O. BY THE ASSESSEE. 6 . IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED ABOVE . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 7 /0 6 /201 5 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR