Ashimendu Deb, Kolkata v. ITO, Ward - 33(2), Kolkata, Kolkata

ITA 2061/KOL/2010 | 2006-2007
Pronouncement Date: 07-01-2011

Appeal Details

RSA Number 206123514 RSA 2010
Bench Kolkata
Appeal Number ITA 2061/KOL/2010
Duration Of Justice 1 month(s) 22 day(s)
Appellant Ashimendu Deb, Kolkata
Respondent ITO, Ward - 33(2), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 07-01-2011
Assessment Year 2006-2007
Appeal Filed On 15-11-2010
Judgment Text
SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA () BEFORE . . . . . . . . ) [BEFORE HONBLE SRI D. K. TYAGI JM] ! ! ! ! / I.T.A NO. 2061/KOL/2010 '#$ %&' '#$ %&' '#$ %&' '#$ %&'/ // / ASSESSMENT YEAR : 2006-07 ASHIMENDU DEB -VS- INCOME-TAX OFFICER WD-33(2) KOLKATA (PA NO.ADOPD 7133 L) ()* / APPELLANT ) (+)*/ RESPONDENT ) FOR THE APPELLANT: SRI ALOKE SUR FOR THE RESPONDENT : SRI PIJUSH KOLHE / ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 10.08.2010 FOR THE ASSESSMENT YEAR 2 006-07 ON THE FOLLOWING SOLE GROUND : 1. FOR THE FACTS AND CIRCUMSTANCES THE A.O. AND CIT(A) BOTH ARE ERRED IN LAW AND MERIT OF THE CASE. THE A.O. HAVE NO JURISDICTION T O PASS THE ORDER U/S. 145(3)/144 AFTER HEARING. HE ALSO WRONGLY APPLIED SEC. 44AD FOR THE PURPOSE OF MAKING ASSESSMENT IN RESPECT OF AN ASSESSEE WHO COMPULSORILY AUDITED HIS BOOKS OF ACCOUNTS BY A CERTIFIED CHARTERED ACCOUNTANT AS PER PROVISION OF SEC.44AB. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. AT THE TIME OF ASSESSMENT PROCEEDING S THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS SHOWN PURCHASES OF RS.48 09 300/- AND LABOUR CHARGES OF RS.8 60 320/-. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE EX PRESSED HIS INABILITY TO FURNISH THE ADDRESS OF THE PARTIES FROM WHOM PURCHASES WERE MADE AS THE BILLS WERE NOT PRESERVED. THE ASSESSING OFFICER ALSO STATED THAT THE MUSTER ROLL REGARDING LABOUR CHARGES WAS ALSO NOT PRODUCED IN COURSE OF ASSESSMENT PROCEEDINGS. HE ALSO FOUND TH AT AGAINST PURCHASES PAYMENTS OF RS.3 26 916/- WERE MADE BY BEARER CHEQUES. SIMILAR LY LABOUR PAYMENTS OF RS.3 33 320/- WERE MADE IN CASH. IN VIEW OF THIS THE ASSESSING OFFIC ER CONCLUDED THAT THE PROFIT SHOWN BY THE ASSESSEE WAS NOT ACCEPTABLE AS IT WAS BELOW THE PRO FIT SHOWN BY MANY SIMILAR CONCERNS. FOR THIS HE LISTED FIVE COMPARATIVE CASE AND ALLOWED T HE ASSESSEE AN OPPORTUNITY TO SUBMIT AN EXPLANATION WHICH WAS NOT AVAILED. HE THEN APPLIE D THE RATE OF 8% AND DETERMINED THE PROFIT ACCORDINGLY. BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE CONTENDED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN APPLYING THE PROVISION S OF SECTION 44AD AS THE TURNOVER IN THE CASE OF THE ASSESSEE EXCEEDS RS. 40 LAKHS. IT WAS ALSO ARGUED THAT THE ASSESSING OFFICER DID NOT 2 REJECT THE BOOKS OF ACCOUNT. CONSIDERING THE SUBMIS SIONS OF THE ASSESSEE THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. BEI NG FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE WHILE REITERATING HIS SAME SUBMISSIONS AS SUBMITTED BEFORE THE LOWER AUTH ORITIES FURTHER SUBMITTED THAT THE ASSESSEE MAINTAINED PROPER BOOKS OF ACCOUNTS AND HIS INCOME WAS DULY AUDITED BY A CHARTERED ACCOUNTANT AS PER PROVISION OF SECTION 44AB AND THE AUDIT REPORT WAS FILED BEFORE THE ASSESSING OFFICER. HE ALSO CONTENDED THAT THE ASSE SSING OFFICER DID NOT REJECT THE BOOKS OF ACCOUNTS. HE EXPLAINED BEFORE THE ASSESSING OFFICE R THE REASON FOR INABILITY TO PAY CHEQUES IN A CERTAIN AMOUNT. HE ALSO FILED IN DETAILS THE LIS T OF PURCHASE AND LABOUR PAYMENT SEPARATELY BY CASH AND BY CHEQUE. FROM THE ABOVE THE ASSESSING OFFICER FOUND THAT A SUM OF RS.3 26 916/- ONLY PAID BY CASH OUT OF TOTAL PURCHASE OF RS.48 09 300 AND A SUM OF RS.3 33 320/- OUT OF TOTAL LABOUR CHARGES OF RS.8 60 320/- ONLY. HE ALSO CONT ENDED THAT WITHOUT ANY REASON THE ASSESSING OFFICER APPLIED SECTION 44AD AND PASSED THE ASSESSM ENT ORDER WHERE THE GROSS TURNOVER OF THE ASSESSEE WAS RS.50 85 056/-. HE ALSO SUBMITTED THA T SECTION 44AD CLEARLY STATES THAT THIS SCHEME SHALL NOT BE APPLICABLE IF THE GROSS RECEIPT EXCEED AN AMOUNT OF RS.40 LACS. SO THE ASSESSING OFFICER HAS NO JURISDICTION TO APPLY SECT ION 44AD IN RESPECT OF THIS ASSESSEE AND ALSO THE LD. CIT(A) HAS WRONGLY CONFIRMED THIS ACTION OF THE ASSESSING OFFICER. HE LASTLY CONCLUDED THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) MAY B E DELETED IN FULL. 4. ON THE OTHER HAND THE LD. DR VEHEMENTLY SUPPOR TED THE ORDER OF THE LD. CIT(A) AND URGED BEFORE THE BENCH TO CONFIRM THE SAME. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSING THE MATERIAL AVAILABLE ON RECORD I FIND THAT THE ASSESSING OFFICER POINTING OUT SEVERAL DEFECTS IN THE ACCOUNTS OF THE ASSESEE HAS APPLIED THE PROFIT RATE OF 8% AS THE AS SESSEES PROFITS AS RETURNED ARE ADMITTEDLY BELOW THE BENCHMARK RATE OF 8% FOUND IN THIS LINE O F BUSINESS AND MADE THE ADDITION. WHILE SUSTAINING THE ADDITION THE LD. CIT(A) HAS HELD AS UNDER : I HAVE PERUSED THE ASSESSMENT ORDER AND CONSIDERED THE SUBMISSION OF THE APPELLANT. I FIND THAT THE A.O. HAS NOT APPLIED THE PROVISIONS O F SECTION 44AD IN THE CASE OF THE APPELLANT. AFTER POINTING OUT SEVERAL DEFECTS IN T HE ACCOUNTS OF THE APPELLANT THE A.O. HAS APPLIED THE PROFIT RATE OF 8%. I DO NOT FIND S UBSTANCE IN THE ARGUMENT THAT THE A.O. DID NOT REJECT THE BOOKS OF ACCOUNT. ON THE CONTRAR Y THE A.O HAS HIGHLIGHTED SPECIFIC DEFECTS IN THE ACCOUNTS OF THE APPELLANT. THE APPE LLANT FAILED TO PRODUCE THE PURCHASE BILLS AND MUSTER ROLL. THE APPELLANT DID NOT OFFER ANY EXPLANATION ON COMPARATIVE CASES THOUGH OPPORTUNITY WAS ALLOWED BY THE A.O. THE A.O. HAS CLEARLY MENTIONED AS TO WHY THE BOOKS CANNOT BE RELIED UPON FOR CORRECTL Y DETERMINING THE PROFIT OF THE APPELLANT. IN VIEW OF THE ABOVE THE ESTIMATION MA DE BY THE A.O. IS CONFIRMED. GROUND NO. 1 IS DISMISSED. 3 IN VIEW OF THE ABOVE AND ALSO IN ABSENCE OF ANY CON TRARY MATERIAL BROUGHT ON RECORD BY THE ASSESSEES COUNSEL AT THE TIME OF HEARING BEFORE US WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A) AND THE SAME IS HEREBY UPH ELD. THE APPEAL OF THE ASSESSEE IS THEREFORE DISMISSED. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 7.1.2011 SD/- . . (D. K. TYAGI) JUDI CIAL MEMBER ( - - - -) )) ) DATED : 7TH JANUARY 2011 %./ '#01 '2% JD.(SR.P.S.) 3 +''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SRI ASHIMENDU DEB C/43 RAMMOHAN ESTATE MADHYAMGRAM KOLKATA-129. 2 +)* / RESPONDENT : ITO WARD-33(2) KOLKATA. 3 . ' # / THE CIT KOLKATA 4 . ' # ( )/ THE CIT(A) KOLKATA 5 . %=' +'# / DR KOLKATA BENCHES KOLKATA 4 +'/ TRUE COPY #>/ BY ORDER ? 1 /DEPUTY REGISTRAR .