The ITO,Sabarkantha Ward-3,,, Dist.Sabarkantha v. Shri Pravinbhai Revabhai Patel, Tal.Himatnagar

ITA 2255/AHD/2008 | 2005-2006
Pronouncement Date: 30-03-2012 | Result: Partly Allowed

Appeal Details

RSA Number 225520514 RSA 2008
Assessee PAN AJPPP2749F
Bench Ahmedabad
Appeal Number ITA 2255/AHD/2008
Duration Of Justice 3 year(s) 9 month(s) 18 day(s)
Appellant The ITO,Sabarkantha Ward-3,,, Dist.Sabarkantha
Respondent Shri Pravinbhai Revabhai Patel, Tal.Himatnagar
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 30-03-2012
Date Of Final Hearing 08-02-2012
Next Hearing Date 08-02-2012
Assessment Year 2005-2006
Appeal Filed On 11-06-2008
Judgment Text
-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' BEFORE SHRI D K TYAGI JUDICIAL MEMBER AND SHRI A L GEHLOT- ACCOUNTANT MEMBER ITA NO.2255/AHD/2008 (ASSESSMENT YEAR:-2005-06) THE INCOME-TAX OFFICER WARD-3 HIMATNAGAR 3 RD FLOOR AMBALAL COMPLEX B/H MEHTA PETROL PUMP HIMATNAGAR V/S SHRI PRAVINKUMAR REVABHAI PATEL AT & POST: JAMLA TAL: HIMATNAGAR PAN: AJPPP 2749 F [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI ABHIJEET KUMAR N. SR. DR ASSESSEE BY:- SHRI K C THAKER AR DATE OF HEARING:- 08-02-2012 DATE OF PRONOUNCEMENT:- 30-03-2012 O R D E R PER D K TYAGI (JM) :- THIS IS REVENUES APPEAL AGAINST AN ORDER DATED 24-03-2008 PASSED BY THE LEARNED CIT(A) -X AHMEDABAD FOR ASSESSMENT YEAR 2005-06. THE FOLLOWIN G THREE EFFECTIVE GROUNDS HAVE BEEN RAISED BY THE REVENUE:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN QUASHING THE FINDING OF THE AO THAT THE RETURN OF I NCOME FILED ON 27-11-2007 IN RESPONSE TO THE NOTICE U/S 148 WAS NOT VALID. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE DISALLOWANCE OF RS.7 53 925/- SUO-MOTO MADE BY THE ASSESSEE U/S 40A(3) IN THE RETURN OF INCOME FIL ED ON 6-3- 2007. 2 3 THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRECTING THE AO TO SUBSTITUTE THE TOTAL INCOME ASS ESSED BY HIM BY THE FIGURE OF RS.5 51 308/-. 2 THE FIRST GROUND RAISED BY THE REVENUE RELATES TO QUASHING THE FINDING OF THE AO THAT THE RETURN OF INCOME FIL ED IN RESPONSE TO THE NOTICE U/S 148 WAS NOT VALID. THE FACTS OF T HE CASE ARE THAT THE RETURN OF INCOME WAS FILED ON 29-03-2006 DECLAR ING TOTAL INCOME OF RS.1 06 360/-. THE RETURN WAS PROCESSED U /S 143(1) ON 29-03-2006. DUE TO ENQUIRY IN THE CASE OF PRATAPGAD H MOTOR COMPANY HIMATNAGAR FOR CASH PAYMENT EXCEEDING RS.2 0 000/- BY THE ASSESSEE THE ASSESSEE DISALLOWED 20% U/S 40 A(3) OF RS.7 53 925/- FOR CASH OF RS.37 69 625/- AND FILED REVISED RETURN OF INCOME ON 06-03-2007 SHOWING TOTAL INCOME OF RS. 9 71 100/-. IN THE ORIGINAL RETURN OF INCOME THE ASSESSEE HAD DEBITED DIESEL EXPENSES OF RS.11 01 595/- AS AGAINST EXPENSES OF R S.37 54 369/- THOUGH THERE WERE UNACCOUNTED EXPENSES OF RS.26 52 774/- THEREFORE NOTICE U/S 148 WAS ISSUED ON 21-03-2007 AND SERVED ON THE ASSESSEE ON 21-03-2007. THE ASSESSEE REPLIED V IDE LETTER DATED 22-03-2007 TO TREAT THE RETURN FILED ON 06-03 -2007 IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. NOTIC E U/S 143(2) ISSUED ON 06-07-2007 AS WELL AS NOTICE U/S 142(1) W ITH DETAILS CALLED FOR VIDE LETTER DATED 06-07-2007. THE ASSES SEE HAD NOT GIVEN ANY DETAILS. ONE MORE OPPORTUNITY WAS GIVEN V IDE LETTER DATED 31-08-2007 TO COMPLY THE DETAILS AS WELL AS F OR THE PURPOSES ASSIGNED ON THE BASIS OF REVISED RETURN OF INCOME FILED BY THE ASSESSEE. THE ASSESSEE REPLIED VIDE LETTER D ATED 10-09- 2007 AND ASKED FOR ADJOURNMENT AND ALSO REQUESTED T O GRANT THREE WEEKS TIME FOR ANSWERING TO THE ABOVE NOTICE. THE AO STATED 3 THAT DURING THE ASSESSMENT PROCEEDINGS STATEMENTS S UMMARY WERE ISSUED TO THE FOLLOWING PARTIES FROM WHOM THE ASSES SEE HAD SHOWN RECEIPTS FOR TRANSPORT INCOME:- SR. NO. NAME TOTAL RECEIPTS (RS.) 1 ASHISH CORPORATION AHMEDABAD 10 70 598.00 2 SHARAD ENTERPRISES -DO- 1 59 910.00 3 C T MODI & SONS -DO- 2 74 410.00 4 MANSHI CORP. -DO- UNSERVED 5 ROLLER CONST. DO- 2 51 654.00 6 MR. K J GOHIL KALOL - 7 JALARAM CONST. AHMEDABAD 1 58 637.00 8 RAMANLAL R SHAH & SONS -DO- 2 44 324.00 ALL OF THE ABOVE PARTIES HAD GIVEN COPY OF ACCOUNTS FROM THEIR BOOKS OF ACCOUNTS. INFORMATION WERE COLLECTED FROM THE AHMEDABAD DISTRICT CO-OPERATIVE BANK LTD. SABARMAT I BRANCH AHMEDABAD FROM BANK ACCOUNT NO.1332 FOR THE PERIOD FROM 01- 04-04 TO 31-03-2005. ON VERIFICATION OF BANK ACCOUN T THERE WERE TRANSACTION OF RS.84 28 940/- DEPOSITED BY CHEQUE A ND OUT OF THESE THE ASSESSEE HAD WITHDRAWN BY SELF CHEQUE OF RS.45 45 188/- AS PER BANKS STATEMENT RECEIVED VID E LETTER DATED 12-09-2007. THE ASSESSEE WAS ASKED VIDE THEIR OFFIC E LETTER TO EXPLAIN THE USE OF THEIR CASH WITHDRAWN. THE ASSESS EE HAD NOT GIVEN REPLY. THE AO NOTED THAT FROM THE DETAILS AVA ILABLE ON RECORDS ASSESSMENT IS COMPLETED ON MERITS. THE ASSE SSEE HAD FILED REPLY VIDE LETTER DATED 10-09-2007 THAT HE HA D NOT KEPT THE 4 BOOKS OF ACCOUNTS AS HE HAD ONLY SINGLE TRUCK AND C ARRYING ON TRANSPORT WORK ON A SMALL SCALE. HE HAD MENTIONED I N HIS LETTER THAT HE DID NOT KNOW THAT HOW THE FIRST AND SECOND RETURN WERE FILED. THE AO NOTED THAT THERE WERE VERY WIDE DIFFE RENCE IN BOTH THE RETURNS FILED. THE ASSESSEE WAS ASKED TO GIVE R EPLY AGAINST THE PROPOSED ADDITION. AT THIS STAGE THE ASSESSEE FILE D THIRD RETURN ON 27-11-2007 WITH THE NOTES DECLARING INCOME OF RS .3 42 160/- STATING THAT THIS RETURN OF INCOME BE TREATED AS FI LED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. THIS REQUEST OF THE A SSESSEE WAS NOT ACCEPTED BY THE AO IN VIEW OF THE FACT THAT THE ASS ESSEE HAD ALREADY VIDE HIS LETTER DATED 22-03-2007 STATED THA T THE RETURN FILED ON 6-3-07 MAY BE CONSIDERED AS FILED IN RESPO NSE TO NOTICE U/S 148 OF THE ACT. 3 THIS ACTION OF THE AO WAS CHALLENGED BY THE ASSES SEE BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) HAS G IVEN FOLLOWING FINDINGS ON THIS ISSUE:- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MAD E ON BEHALF OF THE APPELLANT. HAVING GONE THROUGH THE RELEVANT FAC TS OF THE CASE I FIND CONSIDERABLE FORCE IN THE SUBMISSIONS MADE BY THE A PPELLANT'S COUNSEL. THERE IS NO DISPUTE THAT THE APPELLANT HAS NOT MAIN TAINED REGULAR BOOKS OF ACCOUNTS. IN THE CIRCUMSTANCES UNLIKE IN THE FI RST TWO RETURNS OF INCOME FILED BY HIM IN THE RETURN FILED U/S.148 OF THE ACT HE HAS ESTIMATED THE NET INCOME AT 5 % OF RECEIPTS. THE A. O. HAS HOWEVER GONE BY THE RETURN FILED ON 6-3-2007 ON THE GROUND THAT IN REPLY TO NOTICE U/S.148 THE APPELLANT REQUESTED TO CONSIDER THE SAID RETURN AS FILED U/S.148. THE APPELLANT'S CONTENTION IS THAT T HE SAID RETURN WAS NOT VALID AND THOUGH SUCH A REQUEST WAS MADE TO TREAT THE INVALID RETURN AS FILED U/S.148 THE A.O. DID NOT INTIMATE HIS ACCEPT ANCE OF THE REQUEST AND THEREFORE THE APPELLANT FILED THE RETURN IN APP ROPRIATE FORM DULY SIGNED AND VERIFIED IN THE PRESCRIBED MANNER AS REQ UIRED IN TERMS OF THE NOTICE ISSUED U/S.148 OF THE ACT. THE APPELLANT HAS ALSO CONTENDED THAT IN ANY CASE THE RETURN U/S.148 HAD ALREADY COM E ON RECORD AS STATED IN THE ORDER UNDER APPEAL BY THE A.O. BUT T HE A.O. CHOSE TO 5 MAKE ASSESSMENT WITHIN TWO DAYS OF FILING OF THE SA ID RETURN WITHOUT RAISING ANY QUERY WITH REGARD TO THE SAID RETURN TH OUGH HE HAD TIME OF MORE THAN A MONTH AFTER RECEIPT OF THE RETURN U/S. 148 ON 27-11-2007. CONSIDERING THESE FACTS I AM OF THE VIEW THAT THE A .O. WAS NOT JUSTIFIED IN NOT CONSIDERING THE RETURN LAWFULLY FI LED U/S.148 OF THE ACT AND PREFERRING TO GO BY THE LETTER REFERRING TO THE INVALID RETURN FILED ON 6-3-2007. FIRST GROUND OF APPEAL IS THEREFORE ALLOW ED AND THE FINDING OF THE A.O. TO THE EFFECT THAT THE SAID RETURN IS N OT VALID IS QUASHED. 4 THE REVENUE HAS NOW COME IN APPEAL BEFORE US AGAI NST THE AFORESAID FINDING OF THE LEARNED CIT(A). THE LEARNE D DR SUPPORTED THE ORDER OF THE AO. THE LEARNED COUNSEL OF THE ASSESSEE ON THE OTHER HAND SUPPORTED THE ORDER OF THE LEARNED CIT(A). 5 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORD AND FIND THAT THE ASSESSEE FILED ITS ORIGINAL RETURN ON 29-03-2006 DECLARING TOTAL INCOME OF RS.1 06 360/-. WHEN ENQUI RY IN THE CASE OF PRATAP MOTOR COMPANY THE ASSESSEE REVISED ITS RETURN BY DISALLOWING 20% OF THE DIESEL EXPENSES U/S 40A(3) S HOWING INCOME OF RS.9 71 100/- ON 06-03-2007. WHEN NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE HE COMMUNICATED TO THE AO T HAT THE RETURN FILED ON 06-03-2007 MAY BE TAKEN AS FILED AGAINST T HE NOTICE U/S 148 OF THE ACT. THE LEARNED CIT(A) HOWEVER HAS HEL D THAT SUBSEQUENT RETURN FILED BY THE ASSESSEE ON 27-11-20 07 SHOULD BE TREATED AS RETURN FILED U/S 148 OF THE ACT WHICH A CCORDING TO US IS NOT PROPER. ONCE THE ASSESSEE HIMSELF HAS GIVEN IN WRITING TO THE AO THAT THE RETURN FILED ON 06-03-2007 BE CONSI DERED AS RETURN FILED IN RESPONSE TO NOTICE U/S 148 HE CANN OT BE ALLOWED TO FILE ANOTHER RETURN AND CLAIM IT TO BE FILED IN RES PONSE TO NOTICE U/S 148 OF THE ACT AND THAT TOO AFTER 8 MONTHS OF N OTICE U/S 148 6 BEING SERVED ON THE ASSESSEE ON 22-03-2007. THE OBS ERVATION OF THE LEARNED CIT(A) THAT THE REVISED RETURN FILED BY THE ASSESSEE ON 6-3-2007 WAS APPARENTLY INVALID IS OF NO CONSEQU ENCE WHEN THE ASSESSEE HAS OPTED THIS RETURN TO BE TREATED AS FILED IN RESPONSE TO NOTICE U/S 148 AND THE SAME HAS BEEN DO NE BY THE ASSESSEE WITHIN THE PERIOD GIVEN BY THE AO IN HIS N OTICE U/S 148 OF THE ACT TO FILE THE RETURN AND THE THIRD RETURN FILED ON 27-11- 2007 WAS MUCH BEYOND THAT TIME. IN VIEW OF THIS WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE RETURN FILED ON 27-11-2007 SHOULD HAVE BEEN CONSIDERED BY AO AS RETURN FILED IN RESPONSE TO NOT ICE ISSUED U/S 148 OF THE ACT. THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE IS SET ASIDE AND THAT OF THE AO IS RESTORED. THIS GROU ND OF THE REVENUE IS ALLOWED. 6 AS FAR AS GROUND NOS.2 AND 3 OF THE APPEAL ARE CO NCERNED WE FIND THAT THE ISSUES INVOLVED IN THESE TWO GROUN DS HAVE BEEN DECIDED BY THE LEARNED CIT(A) BY RELYING ON THE RET URN FILED ON 27-11-2007 BY THE ASSESSEE AND IGNORING THE SECOND RETURN FILED ON 6-3-2007 BY THE ASSESSEE. SINCE WE HAVE HELD IN GROUND NO.1 THAT THE AO WAS RIGHT IN TREATING THE SECOND RETURN FILED ON 6-3- 2007 AS VALID RETURN FOR PROCEEDINGS U/S 148 THESE TWO GROUNDS REQUIRE FRESH ADJUDICATION ON THE PART OF THE LEARN ED CIT(A). ACCORDINGLY THESE TWO GROUNDS ARE RESTORED BACK TO HIS FILE WITH THE DIRECTION TO DECIDE THE SAID AFRESH IN ACCORDAN CE WITH LAW. . THE LEARNED CIT(A) HOWEVER WILL BE FREE TO TREAT THE THIRD RETURN FILED BY THE ASSESSEE ON 27-11-2007 AS ADDIT IONAL EVIDENCE IN SUPPORT OF ASSESSEES CLAIM. 7 7 IN THE RESULT THE REVENUES APPEAL IS PARTLY ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT TODAY ON 30-03-2012 SD/- SD/- (A L GEHLOT) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 30-03-2012 COPY OF THE ORDER FORWARDED TO: 1. SHRI PRAVINKUMAR REVABHAI PATEL AT & POST: JAML A TAL: HIMATNAGAR 2. THE INCOME-TAX OFFICER WARD-3 HIMATNAGAR 3 RD FLOOR AMBALAL COMPLEX B/H MEHTA PETROL PUMP HIMATNAGAR 3. CIT CONCERNED 4. CIT(A)-X AHMEDABAD 5. DR ITAT AHMEDABAD BENCH-B AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD