M/s. Anand Transport Co.,, Bhopal v. The I.T.O., Bhopal

ITA 242/IND/2010 | 2004-2005
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 24222714 RSA 2010
Assessee PAN AAIFA4711A
Bench Indore
Appeal Number ITA 242/IND/2010
Duration Of Justice 11 month(s) 7 day(s)
Appellant M/s. Anand Transport Co.,, Bhopal
Respondent The I.T.O., Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-03-2011
Date Of Final Hearing 16-03-2011
Next Hearing Date 16-03-2011
Assessment Year 2004-2005
Appeal Filed On 23-04-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.242/IND/2010 A.Y. 2004-05 M/S ANAND TRANSPORT COMPANY BHOPAL PAN AAIFA4711A APPELLANT VS INCOME TAX OFFICER 2(2) BHOPAL RESPONDENT APPELLANT BY : SHRI H.P. VERMA AND SHRI ASHISH GOYAL RESPONDENT BY : SHRI P.K. MITRA O R D E R PER R.C. SHARMA ACCOUNTANT MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) DATED 2 .1.2008 IN THE MATTER OF EX-PARTE ORDER OF THE ASSESSING OFFIC ER PASSED U/S 144 OF THE ACT. 2. IN THE GROUNDS OF APPEAL THE ASSESSEE IS BASICA LLY AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER PAS SED U/S 144 WHICH WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS). THE ASSESSEE IS ALSO AGGRIEVED BY THE O RDER OF THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) FOR NOT DECIDING 2 THE APPEAL ON MERIT OF THE ADDITION MADE BY THE ASS ESSING OFFICER. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FIRM IS ENGAGED IN TRANSPORT BUSINESS. DURING THE YEAR THE ASSESSEE HA S FILED RETURN AT NIL INCOME IN RESPECT OF GROSS RECEIPT OF RS.69 35 892/- WHICH WAS ASSESSED BY THE ASSESSING OFFICER AT RS.40 02 7 70/- AFTER MAKING VARIOUS ADDITIONS. THE ASSESSING OFFICER ST ATED THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICE ISSUED U/S 142(1)/131 THEREFORE VARIOUS DISALLOWANCES WERE MADE IN RESPE CT OF EXPENDITURE CLAIMED IN THE PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER OBSERVED THAT THE EXPENDITURE IN RESPECT OF DIESEL AND OIL AS SHOWN IN THE BOOKS OF ACCOUNTS IS EXCESSIVE HE THEREFORE DISALLOWED ON AD HOC BASIS 25% OF SU CH EXPENSES. SIMILARLY EXPENDITURE INCURRED ON CONVEYANCE AND T RAVELING WAS DISALLOWED ON AD HOC BASIS AT 1/3RD. FURTHER DISALL OWANCE OF RS. 11.62 LACS WAS MADE U/S 40(IA). THUS THE RETURN O F INCOME AT NIL INCOME WAS ASSESSED AT RS. 40 02 770/-. BY THE IMP UGNED ORDER THE LEARNED COMMISSIONER OF INCOMETAX (APPEA LS) CONFIRMED THE ACTION OF THE ASSESSING OFFICER FOR P ASSING ORDER U/S 144 OF IT ACT BY OBSERVING THAT THE NOTICE WAS PROPERLY SERVED ON THE ASSESSEE BUT THE ASSESSEE DID NOT APP EAR. ON THE GROUND RAISED WITH REGARD TO FRAMING OF 144 ASS ESSMENT THE 3 SAME WAS HELD TO BE JUSTIFIED BY THE LEARNED COMMIS SIONER OF INCOMETAX (APPEALS). HOWEVER THE LEARNED COMMISSI ONER OF INCOMETAX (APPEALS) DID NOT GIVE ANY OF HIS OBSERVA TION FINDING OR VERDICT ON THE MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. IT WAS CONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE NOTICE U/S 143(2) OF THE ACT WAS NOT SERVE D ON ANY PARTNER OF THE ASSESSEE FIRM. AS PER THE LEARNED C OUNSEL FOR THE ASSESSEE THE ASSESSEE FIRM WAS DISSOLVED ON 1.4.20 05 WHEREAS THE ASSESSING OFFICER HAS STATED THAT THE NOTICE U/ S 143(2) OF THE ACT WAS PERSONALLY SERVED ON THE ASSESSEE ON 30.11. 2005. WE FIND THAT DURING THE APPELLATE PROCEEDINGS THE LEA RNED COMMISSIONER OF INCOMETAX (APPEALS) CALLED FOR THE REMAND REPORT WITH REGARD TO ISSUE OF VARIOUS NOTICES. THE REMAND REPORT SENT BY THE ASSESSING OFFICER READS AS UNDER :- THE ASSESSING OFFICERS REPORT RECEIVED IN THIS REGARD SHOWS VARIOUS DETAILS IN RESPECT OF NOTICES U/S 143(2) 131 AND 156 HAVING BEEN ISSUED BY HIS OFFICE AND SERVED TO THE APPELLANT PERSONALLY AND/OR BY SUFFICING OF THE NOTICE AS GIVEN IN TABLE BELOW : 4 S. NO DATE OF ISSUED OF NOTICE SECTION OF NOTICE MODE OF SERVICE ANNEXURE ENCLOSED 1 29.11.2005 143(2) PERSONALY SERVED ON 30.11.05 ANNEXURE-I 2 09.06.2006 142(1) ALONG WITH THE QUESTIONNAIRE PERSONALY SERVED ON 14.06.06 ANNEXURE II & III 3 13.07.2006 THE NOTICE FOR REQUIREMENT OF INFORMATION PERSONALLY SERVED ON 17.07.06 ANNEXURE IV 4 01.09.2006 131 AFFIX ON 05.09.06 ANNEXURE V 5 29.09.2006 ORDER 7 DEMAND NOTICE AFFIX ON 04.10.06 ANNEXURE VI 5. AFTER GOING THROUGH THE ENTIRE MATERIAL PLACED O N RECORD WE ARE SATISFIED THAT THE NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE WITHIN THE STIPULATED TIME LIMIT. HOWEVER DUE TO THE ASSESSEE FIRM HAVING BEEN DISSOLVED IT APPEARS THAT THE AUDITED BOOKS OF ACCOUNTS COULD NOT BE PRODUCED BEF ORE THE ASSESSING OFFICER. THE LEARNED COUNSEL FOR THE ASS ESSEE ALSO SUBMITTED THAT THE RETURN WAS FILED ALONG WITH AUDI TED REPORT U/S 44AB AND ALL THE DETAILS OF EXPENDITURE SO INCURRED WERE THERE IN THE REPORT ALONG WITH AUDITED PROFIT AND LOSS ACCOU NT AND BALANCE SHEET. IT WAS ALSO THE CONTENTION OF THE LEARNED C OUNSEL FOR THE ASSESSEE THAT BEFORE FRAMING THE ASSESSMENT U/S 144 NO NOTICE WAS ISSUED TO THE ASSESSEE U/S 144(1) OF THE ACT. AS PER OUR CONSIDERED VIEW BEFORE FRAMING THE ASSESSMENT U/S 144 OF THE ACT THE ASSESSING OFFICER IS STATUTORILY REQUIRED T O ISSUE NOTICE U/S 144(1) OF THE ACT. NEITHER THE LEARNED COMMISS IONER OF INCOMETAX (APPEALS) NOR THE ASSESSING OFFICER IN HI S REMAND 5 REPORT GAVE ANY FINDING WITH REGARD TO ISSUE AND SE RVICE OF ANY NOTICE U/S 144(1) OF THE ACT. THE LEARNED COMMISSI ONER OF INCOMETAX (APPEALS) HAS ALSO NOT GIVEN ANY FINDING WITH REGARD TO MERIT OF VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE ASSESSING OFFICER. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE WE RESTORE THE MATTER BA CK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH. HOWE VER KEEPING IN VIEW THE ANTICIDENTS OF THE ASSESSEE IN PAST TH E ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER WIT HIN THE PERIOD OF TWO MONTHS FROM THE DATE OF SERVICE OF THIS ORDE R OF THE TRIBUNAL AND TO COOPERATE WITH THE ASSESSING OFFICE R FOR COMPLETION OF ASSESSMENT. IN CASE OF ANY FAILURE ON THE PART OF THE ASSESSEE THE ASSESSING OFFICER IS FREE TO FRAM E THE ASSESSMENT AS PER MATERIAL PLACED ON RECORD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS POSED OF WITH THE ABOVE DIRECTIONS. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES ON 31 ST MARCH 2011. (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MARCH 2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE 6 DN/-