Ahir Manish Valjibhai,, GANDHIDHAM v. The Income Tax Officer, Ward-1,, GANDHIDHAM

ITA 228/RJT/2011 | 2005-2006
Pronouncement Date: 30-11-2011 | Result: Allowed

Appeal Details

RSA Number 22824914 RSA 2011
Assessee PAN AAKMI6859K
Bench Rajkot
Appeal Number ITA 228/RJT/2011
Duration Of Justice 6 month(s) 12 day(s)
Appellant Ahir Manish Valjibhai,, GANDHIDHAM
Respondent The Income Tax Officer, Ward-1,, GANDHIDHAM
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2011
Date Of Final Hearing 04-11-2011
Next Hearing Date 04-11-2011
Assessment Year 2005-2006
Appeal Filed On 18-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) I.T.A. NO.228/RJT/2011 (ASSESSMENT YEAR 2005-06) AHIR MANISH VALJIBHAI VS THE ITO WD.1 PROP OF SOMNATH ROAD LINES GANDHIDHAM SHOP NO.8 TANKER ASSOCIATE BLDG SECTOR 9C NATIONAL HIGHWAY-8A GANDHIDHAM PAN : AAKMI6859K (APPELLANT) (RESPONDENT) DATE OF HEARING : 29-11-2011 DATE OF PRONOUNCEMENT : 30-11-2011 APPELLANT BY : SHRI DM RINDANI RESPONDENT BY: SHRI KRISHNA PRABHAKAR O R D E R PER T.K. SHARMA (JM) THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D ATED 21-01-2011 PASSED BY THE CIT(A)-XX RAJKOT FOR THE ASSESSMENT YEAR 2005- 06. 2. VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UND ER: 1. THE LEARNED C.I.T.(APPEALS)-XX AHMEDABAD HAS E RRED IN CONFIRMING THE A.OS ACTION IN REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE U/S 145(3) OF THE ACT. 2. THE LEARNED C.I.T.(APPEALS)-XX AHMEDABAD HAS FU RTHER ERRED IN CONFIRMING THE A.OS ACTION IN ESTIMATING THE INCOM E FROM THE BUSINESS OF TRANSPORTATION AT 5% OF THE GROSS RECEI PTS AND THEREBY ESTIMATING THE INCOME AT RS.9 81 205/- AS A GAINST RETURNED INCOME OF RS.2 03 700/-. 3. THE LEARNED C.I.T.(APPEALS)-XX AHMEDABAD HAS ER RED IN UPHOLDING THE A.OS ACTION IN TREATING CAPITAL INTR ODUCTION OF RS.1 42 631/- AS ASSESSEES INCOME FROM UNDISCLOSED SOURCE. 4. THE LEARNED C.I.T.(APPEALS)-XX AHMEDABAD HAS ER RED IN UPHOLDING THE A.OS ACTION IN TREATING THE UNSECURE D LOANS AGGREGATING TO RS.10 50 000/- AS UNEXPLAINED U/S 68 OF THE ACT. ITA NO.228/RJT/2011 2 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN I NDIVIDUAL DOING BUSINESS OF TRANSPORTATION ON COMMISSION BASIS IN THE PROPRIETO RY CONCERN VIZ. M/S SOMNATH ROADWAYS. THE MODUS OPERANDI OF THE BUSINESS OF TH E ASSESSEE IS TO ARRANGE TANKER FOR HIS PRINCIPAL FOR TRANSPORTATION OF LIQUID CARG O. PRINCIPAL USED TO PAY FREIGHT DIRECTLY TO THE TANKER DRIVER ON RECEIPT OF LIQUID CARGO. THIS IS CALLED TO PAY FREIGHT SYSTEM IN TRANSPORT BUSINESS. THE ASSESSEE RECEIVED COMMISSI ON FROM PRINCIPAL WHICH IS ABOUT 2% TO 2.5%. FOR THE ASSESSMENT YEAR UNDER APPEAL T HE ASSESSEE FILED THE RETURN OF INCOME DECLARING INCOME OF RS.2 03 700. HE MAINTAI NED BOOKS OF ACCOUNT WHICH ARE GOT AUDITED AS PER PROVISIONS CONTAINED IN SECTION 44AB OF THE I.T. ACT 1961. THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 ON 23-10-2007 AT TOTAL INCOME OF RS.21 73 836 AS UNDER: (I) INCOME @5% OF THE GROSS RECEIPT FOR THE YEAR UNDER CONSIDERATION I.E. 5% OF RS. 1 96 24 092/- RS. 9 81 205 (II) INTRODUCTION OF CAPITAL REMAINS UNEXPLAINED R S. 1 42 631 (III) ALLEGED UNSECURED LOAN / CASH CREDITS REMAINS UNEXPLAINED RS.10 50 000 ASSESSED INCOME RS.21 73 836 4. ON APPEAL BEFORE LD.CIT(A) ONLY WRITTEN SUBMISSI ONS WERE FURNISHED. AFTER CONSIDERING THE WRITTEN SUBMISSIONS THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF LD.CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE US ON BEHALF OF T HE ASSESSEE SHRI DM RINDANI APPEARED AND FILED A PAPER BOOK CONTAINING 37 PAGES WHICH INTER-ALIA INCLUDE THE FOLLOWING: 1. COPY OF AUDITED ACCOUNTS 1-21 2. COPY OF AFFIDAVIT AND TRUCK REGISTRATION BOOK O F ITA NO.228/RJT/2011 3 - HASMUKH AHIR 22-26 - VALABHAI AHIR 27-28 - RAMESH MAHADEV 29-33 - SHAMJI AHIR 34-37 THE COUNSEL OF THE ASSESSEE EXPLAINED THAT THE ASSE SSEE HAS MAINTAINED THE COMPLETE BOOKS OF ACCOUNT AND THIS CAN BE PRODUCED FOR VERIF ICATION. THE COUNSEL OF THE ASSESSEE POINTED OUT THAT BEFORE THE LD.CIT(A) THE WRITTEN SUBMISSIONS WERE FILED WITH THE IMPRESSION THAT THE LD. CIT(A) WILL ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT AND TO EXPLAIN ITS CASE. THIS WAS NOT DONE BY THE LD.CIT(A). HE ACCORDINGLY SUGGESTED THAT SINCE THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDER APPEAL WAS FRAMED U/S 144 LOOKING TO THE FACTS THAT THE A SSESSEES BOOKS OF ACCOUNT ARE AUDITED AND IT HAS MAINTAINED ALL THE RECORDS WHIC H CAN BE PRODUCED BEFORE THE ASSESSING OFFICER THE IMPUGNED ORDER OF LD.CIT(A) BE SET ASIDE AND IN THE INTEREST OF JUSTICE ONE MORE OPPORTUNITY BE ALLOWED TO THE ASS ESSEE TO EXPLAIN ITS CASE BEFORE THE ASSESSING OFFICER. 6. SHRI KRISHNA PRABHAKAR THE LD.DR APPEARED FOR T HE ASSESSEE STRONGLY OBJECTED TO THE AFORESAID PRAYER OF THE LD.COUNSEL OF THE AS SESSEE. HE POINTED OUT THAT ENOUGH OPPORTUNITY WAS ALLOWED BY BOTH THE DEPARTMENTAL AU THORITIES BELOW. THEREFORE THE VIEW TAKEN BY THE LD.CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER BE UPHELD. 6. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDER OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT TH E ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 144 OF THE ACT. ON APPEAL BEFORE TH E LD.CIT(A) THE ASSESSEE FILED THE DETAILED WRITTEN SUBMISSIONS AND IT APPEARS THAT HE WAS UNDER THE IMPRESSION THAT AFTER CONSIDERING THE WRITTEN SUBMISSIONS THE LD.CIT(A) WILL ALLOW ONE MORE OPPORTUNITY TO THE ITA NO.228/RJT/2011 4 ASSESSING OFFICER. BE THAT IT MAY BE NOW THE COUN SEL OF THE ASSESSEE HAS STATED THAT THE ASSESSEE CAN PRODUCE THE COMPLETE BOOKS OF ACCO UNT AND VOUCHER AND EXPLANATION TO VARIOUS POINTS. THEREFORE ONE MORE OPPORTUNITY BE ALLOWED TO THE ASSESSING OFFICER. LOOKING TO THE TOTALITY OF THE FACTS AND CIRCUMSTAN CES OF THE CASE WE ARE OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE THAT IN CASE ONE M ORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF TH E LD.CIT(A) WITH THE DIRECTION THAT (1) THE ASSESSEE SHALL PRODUCE THE COMPLETE BOOKS O F ACCOUNT AND VOUCHERS; (2) THE ASSESSEE SHALL REPLY TO VARIOUS QUERIES RAISED BY T HE ASSESSING OFFICER. THE ASSESSING OFFICER WILL EXAMINE THE SAME AND READJUDICATE VARI OUS ADDITIONS / DISALLOWANCES MADE IN THE ASSESSMENT ORDER AFRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT FOR STATISTICAL PURPOSE THE APPE AL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED ON THE DATE AS MENTI ONED ABOVE. SD/- SD/- (A.L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 30 TH NOVEMBER 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-XX RAJKOT 4. THE CIT-I RAJKOT 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT