ITO, Ward-7(2), Hyderabad V. M/s Srilakshmi Agencies, Hyderabad

MA 28/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2073 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KIRAN KATTA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A ', HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO. 28 /HYD/2014 (IN ITA NO. 240 /HYD/1 3 ) : ASSESSMENT YEAR 200 8 - 0 9 INCOME TAX OFFICER , WARD 7(2) HYDERABAD V/S. M/S. SRI LAKSHMI AGENCIES, HYDERABAD ( PAN - AAGFS 7415 K) (APPLICANT) (RESPONDENT) APPLICANT BY : S HRI KIRAN KATTA DR RESPONDENT BY : NONE DATE OF HEARING 20 .0 6 .2014 DATE OF PRONOUNCEMENT 2 0.0 6 .2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS MISCELLANEOUS APPLICATION, REVENUE SEEKS RECTIFICATION/RECALL O F THE ORDER OF THIS TRIBUNAL DATED 7.6.2013 IN ITA NO.2 4 0 / HYD/2013 FOR THE ASSESSMENT YEAR 2008 - 09, ON THE GROUND THAT CERTAIN MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE SAME. 2. DESPITE NOTICE, NONE APPEARED ON BEHALF OF THE RESPONDENT - ASSESSEE. THERE IS NOT EVEN AN ADJOURNMENT PETITION FROM THE ASSE SSEE. HENCE, WE PROCEED TO DISPOSE OF THIS APPLICATION EX - PARTE QUA THE ASSESSEE. 3. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL AVAILABLE ON RECORD IN THE LIGHT OF THE AVERMENTS OF THE REVENUE IN THE PRESENT APPLI C A T ION. IT IS THE CASE OF THE REVENUE IN THE PRESENT APPLICATION, THAT THE INCOME O F THE ASSESSEE, ENGAGED IN THE MA NO. 28 /HYD.2014(IN ITA NO .240 /HYD/201 3 ) M/S. SRI LAKSHMI AGENCIES, HYDERABAD 2 BUSIN ES S OF WHOLE SALE DISTRIBUTION OF RC 7 SIM CAR D S (PREPAID ) OF BSNL, DECLARED AN INCOME OF R S .3,59,100, VIDE RE T UR N OF INCOME FILED ON 15 .10.2008. CO N SI D ERING THE FACT THAT THE ASSESSEE HAS SHOWN A TOTAL TURNOVER OF RS.12,20,78,095, ON WHI C H IT RECEIVED TOTAL COMMISSION OF R S .74,57,430, AND DURING THE ASSESSMENT P R OCEEDIN G S, ASSESSEE HAS NO T FURNISHED ANY BOOKS O F ACCOUNT, THE ASSESSING OFFICER TR E ATED THE ENTIRE COMMISSION RECEIVED AS IN C OM E O F THE ASSESSEE. ON APPEAL, THE CIT(A), THE CIT(A) CON S I D ERING THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE BEFORE HIM, IN THE LIGHT OF THE REMAND REPORT THEREON FURNISHED BY THE ASSESSING OFF ICER, AND THE COMMENTS OF THE ASSESSEE ON SUCH A REMAND REPORT OF THE ASSESSING OFFICER, DIRECTED THE ASSESSING OFFICER TO WORK OUT THE TAXABLE PROFIT AT 15% OF THE COMMISSION RECEIVED BY THE ASSESSEE AND ALLOW THEREFROM THE INTEREST AND REMUNERATION TO PARTNERS. ON THAT BASIS THE TAXABLE PROFIT WORKED OUT TO RS.4,15,732, AND ADDING THERETO THE OTHER INCOME AS DECLARED BY THE ASSESSEE, THE TAXABLE INCOME WORKED OUT TO RS.6,25,098. ON APPEAL BY THE DEPARTMENT AGAINST THE SAID ORDER OF THE CIT(A), THE TR IBUNAL VIDE ITS ORDER DATED 7.6.2013, FINDING THE ESTIMATE BASED ON THE PROFITS FOR EARLIER YEARS TO B E REASONABLE, DIRECTED THE ASSESSING OFFICER TO COMPUTE THE INCOME IN ACCORDANC E W ITH THE PROFITS ESTIMATED FOR IN EARLIER YEARS, VIZ. 10% ON TH E GROSS I NCOME, AND THEREAFTER THE ASSESSING OFFICER SHALL V E RIFY THE EXPENSES AND ALSO GRANT DEDUCTION OF IN T ER E ST AND REMUNERATION PAID TO TH E PARTNERS. IT IS POINTED OUT IN THE PRESENT AP P LI C ATION THAT ESTIMATION OF INCOME FROM BUSINESS AT 10% OF THE COMMISSION OF RS.74,57,429 WHICH WORKS OUT TO RS.7,45,743 AND THE SAME TOGETHER WITH THE INCOME FROM OTHER SOURCES DECLARED BY THE ASSESSEE, WOULD RESULT IN DETERMINATION OF INCOME BELOW THE AMOUNT DECLARED IN THE RETURN BY THE ASSESSEE ITSELF. T HIS BEING A MISTAKE APPARENT FROM RECO R D, REVENUE PRAYED FOR RECTIFICATION/RECALL OF TH E ORDER OF THE TRIBUNAL DATED 7.6.2013. W E FIND MERIT IN THE PLEA OF THE REVENUE IN THIS APPLICATION. SINCE THE INCOME, DETERMINED IN THE MANNER, DIRECTED BY THE TRIBUNAL, LEADS TO ASSES SMENT ON AN INCOME BELOW THE ON E DECLARED BY THE ASSESSEE ITSELF IN THE RETURN, THERE IS A MISTAKE APPARENT FROM MA NO. 28 /HYD.2014(IN ITA NO .240 /HYD/201 3 ) M/S. SRI LAKSHMI AGENCIES, HYDERABAD 3 RECORD. CONSIDERIN G TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE THEREFORE, WE RECALL THE EARLIER ORDER OF THIS TRIBUNAL DATED 7.6.2013 AND RESTORE THE APPEAL FOR FRESH HEARING AND DISPOSAL. REGISTRY IS DIRECT ED TO POST THE APPEAL OF THE REVENUE, BEING ITA NO.240/HYD/2013, FOR FRESH HEARING AND DISPOSAL , DULY ISSUING NOTICES TO THE PARTIES IN THAT BEHALF . WE DIRECT ACCORDINGLY. 4. IN THE RESULT, REVENUES MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON THE CONCLUSION OF HEARING ON THE MISCELLANEOUS APPLICATION ON 2 0 .0 6 .201 4 SD/ - SD/ - ( B.RAMAKOTAIAH ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 2 0 TH JUNE, 2014 COPY FORWARDED TO: 1. M/S. SRI LAKSHMI AGENCIES, 13 - 6 - 439/A/11/A, SRI KRISHNA BALAJI COMPLEX, GUDIMALKAPUR, HYDERABAD. HYDERABAD 2 . INCOME TAX OFFICER WARD 7(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) V I HYDERABAD 4. COMMISSIONER OF INCOME - TAX V , HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S