Shri Kesharbhai Ghamarbhai Chaudhary, Palanpur v. The Income tax Officer,Ward-1,, Palanpur

ITA 1402/AHD/2009 | 2006-2007
Pronouncement Date: 28-01-2011 | Result: Allowed

Appeal Details

RSA Number 140220514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 1402/AHD/2009
Duration Of Justice 1 year(s) 8 month(s) 27 day(s)
Appellant Shri Kesharbhai Ghamarbhai Chaudhary, Palanpur
Respondent The Income tax Officer,Ward-1,, Palanpur
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 10-07-2009
Date Of Final Hearing 20-01-2011
Next Hearing Date 20-01-2011
Assessment Year 2006-2007
Appeal Filed On 01-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MUKUL KUMAR SHRAWAT JUDICIAL MEMBER) ITA NO.1402/AHD/2009 [ASSTT. YEAR : 2006-2007] DICTATED ON: 20-01-2011 KESHARBHAI GHAMARBHAI CHAUDHARY 23 GULABNAGAR DAIRY ROAD PALANPUR 385 001. VS. ITO WARD-1 PALANPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANISH J. SHAH REVENUE BY : SHRI K. MADHUSUDAN O R D E R PER G.D. AGARWAL VICE-PRESIDENT : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (A)-XV AHMEDABAD DATED 23.02.2009 ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 143(3) OF THE INCOME T AX ACT 1961. 2. IN THIS APPEAL BY THE ASSESSEE FOLLOWING GROUNDS ARE RAISED: 1. THAT THE LD.CIT(A) ERRED IN NOT ACCEPTING THE R EVISED RETURN OF INCOME FURNISHED BY THE APPELLANT ON 18/12/2007 AND THEREBY NOT ACCEPTING THE CLAIM MADE BY THE APPELLANT U/S.4 4AE OF THE IT ACT. 2. THAT THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADHOC DISALLOWANCE OF RS.2 21 220/- MADE OUT OF DIESEL EXPENSES WITHOUT PROPERLY APPRECIATING THE SUBMISSI ON OF THE APPELLANT. 3. THAT THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING HE ADHOC DISALLOWANCE OF RS.57 395 MADE OUT OF TRUC K REPAIRING EXPENSES WITHOUT PROPERLY APPRECIATING THE SUBMISSI ON OF THE APPELLANT. ITA NO.1402/AHD/2009 -2- 4. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADHOC DISALLOWANCE OF RS.19 170/- MADE OUT OF T HE TYRE EXP. WITHOUT PROPERLY APPRECIATING THE SUBMISSION OF THE APPELLANT. 5. THAT THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.2 40 644.00 IN RESPECT OF SO CAL LED VEHICLE RENT RECEIVED FROM DASHRATHBHAI K. CHAUDHARY WITHOUT PRO PERLY APPRECIATING THE SUBMISSION OF THE APPELLANT. 3. AT THE TIME OF HEARING BEFORE US IT IS STATED B Y THE LEARNED COUNSEL THAT ALL THE GROUNDS ARE INTER-CONNECTED AND CAN BE CONSIDERED TOGETHER. HE SUBMITTED THAT THE ASSESSEE IS DERIVING INCOME F ROM TRANSPORT BUSINESS BY PLYING FOUR TANKERS. THE ASSESSEE HAS MAINTAINE D REGULAR BOOKS OF ACCOUNTS AND SINCE THE RECEIPT OF THE ASSESSEE EXCE EDED RS.40 LAKHS HE GOT HIS ACCOUNT AUDITED AND FURNISHED THE RETURN ON 5-10-2006 DECLARING TOTAL INCOME AT RS.1 16 476/-. THE RETURN WAS DULY ACCOMPANIED BY THE AUDIT REPORT. THEREAFTER THE ASSESSEE FURNISHED R EVISED RETURN ON 18-12- 2007 DECLARING TOTAL INCOME AT RS.1 68 000/-; THAT IN THE REVISED RETURN THE ASSESSEE OFFERED THE INCOME AS PER SECTION 44AE OF THE IT ACT; THAT THE AO DID NOT ACCEPT THE REVISED RETURN ON THE GRO UND THAT THE ORIGINAL RETURN WAS NOT WITHIN THE TIME. HE CLAIMED THAT THE TIME LIMIT FOR FURNISHING THE RETURN WHERE THE ASSESSEE IS REQUIRE D TO GET THE ACCOUNTS AUDITED IS UPTO 31-10-2006 THEREFORE THE RETURN F URNISHED BY THE ASSESSEE ON 5-10-2006 ALONG WITH THE AUDIT REPORT WAS WELL W ITHIN THE TIME. HE FURTHER STATED THAT THE AO REJECTED THE ASSESSEES BOOKS OF ACCOUNTS AND MADE AD HOC DISALLOWANCE OUT OF DIESEL EXPENSES REPAIRING EXP ENSES AND TYRE PURCHASE EXPENSES. THE AO ALSO MADE CERTAIN A DDITIONS WITH REGARD TO THE AMOUNT RECEIVED FROM SHRI DASHRATHBHAI CHAUD HARY TREATING THE SAME AS RECEIPT OF VEHICLE RENT FROM HIM. HE CLAIM ED THAT THE AMOUNT RECEIVED WAS REPAYMENT OF THE AMOUNT ORIGINALLY GIV EN TO HIM; THAT THE CIT(A) ALLOWED PART RELIEF OUT OF VARIOUS DISALLOWA NCES MADE BY THE AO. ITA NO.1402/AHD/2009 -3- IT IS SUBMITTED BY THE LEARNED COUNSEL THAT IN CASE OF TRANSPORTER WHO OWNS LESS THAN TEN GOODS CARRIAGE THE ASSESSEE HAD THE OPTION TO OFFER INCOME AS PER THE INCOME PRESCRIBED IN SECTION 44AE . THEREFORE EVEN IF THE AO DID NOT ACCEPT THE REVISED RETURN HE SHOULD HAVE ESTIMATED THE INCOME AS PER SECTION 44AE. HE THEREFORE SUBMITTED THAT THE AO MAY BE DIRECTED TO DETERMINE THE INCOME OF THE ASSESSEE AS PER SECTION 44AE OF THE IT ACT. THE LEARNED DR ON THE OTHER HAND HEA VILY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND HE STATED THAT BOOKS MAINTAINED BY THE ASSESSEE WERE NOT RELIABLE AND THEREFORE THE AO RIG HTLY MADE CERTAIN DISALLOWANCES OUT OF THE EXPENSES. HE STATED THAT THE ORDER OF THE CIT(A) SHOULD BE SUSTAINED. 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IT IS NOT I N DISPUTE THAT THE ASSESSEE WAS PLYING THE GOODS CARRIAGE WHICH WERE F OUR. THEREFORE THE NUMBER OF GOODS CARRIAGES PLIED BY THE ASSESSEE WAS WELL WITHIN THE AMBIT OF THE SECTION 44AE. THE AO HAS REJECTED THE BOOK RESULT AND HAS ESTIMATED THE INCOME BY MAKING VARIOUS DISALLOWANCE OUT OF THE EXPENSES CLAIMED BY THE ASSESSEE. HE ALSO ENHANCED THE RECE IPT SHOWN BY THE ASSESSEE. THE ESTIMATED DISALLOWANCE MADE BY THE A O WERE PARTLY REDUCED BY THE CIT(A). THEREFORE UNDISPUTEDLY IN THE ASSESSEES CASE THE ACTUAL DISPUTE IS ONLY WITH REGARD TO ESTIMATIO N OF THE INCOME FROM TRUCKS PLYING BUSINESS. IN OUR OPINION WHEN THE L EGISLATURE HAS PROVIDED SOME FORMULA FOR ESTIMATION OF INCOME IN THE CASE O F A TRANSPORTER WHO OWNS LESS THAN TEN GOODS CARRIAGES THERE WOULD NOT BE ANY JUSTIFICATION FOR NOT ESTIMATING THE INCOME OF THE ASSESSEE AS PE R THE FORMULA PRESCRIBED IN SECTION 44AE. IT IS IRRELEVANT WHETH ER THE REVISED RETURN FURNISHED BY THE ASSESSEE IS VALID OR NOT. WHEN TH E QUESTION OF ESTIMATION OF THE INCOME OF A TRANSPORTER COMES SECTION 44AE IS A GOOD GUIDELINE IN ITA NO.1402/AHD/2009 -4- THE CASE OF TRANSPORTER WHO OWNS LESS THAN TEN GOOD S CARRIAGE. IN VIEW OF THE ABOVE WE DIRECT THE AO TO DETERMINE THE INCOME OF THE ASSESSEE AS PER THE SECTION 44AE OF THE IT ACT. 5. IN RESULT THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28H JANUARY 2011 SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 28-01-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD