M/s. Viswas Construction, Haldwani v. ITO, Haldwani

ITA 3088/DEL/2009 | 2006-2007
Pronouncement Date: 26-05-2010 | Result: Allowed

Appeal Details

RSA Number 308820114 RSA 2009
Assessee PAN AAEFV7319M
Bench Delhi
Appeal Number ITA 3088/DEL/2009
Duration Of Justice 10 month(s) 23 day(s)
Appellant M/s. Viswas Construction, Haldwani
Respondent ITO, Haldwani
Appeal Type Income Tax Appeal
Pronouncement Date 26-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 26-05-2010
Date Of Final Hearing 26-05-2010
Next Hearing Date 26-05-2010
Assessment Year 2006-2007
Appeal Filed On 03-07-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI C.L. SETHI JM AND SHRI R.C.SHARMA AM ITA NO. 3088/DEL/2009 ASSESSMENT YEAR : 2006-07 M/S VISHWAS CONSTRUCTIONS 5/501 MALLA GORAKHPUR HALDWANI (PAN: AAEFV7319M) VS. INCOME TAX OFFICER-3 AYAKAR BHAVAN NAINITAL ROAD HALDWANI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. K. SAMPATH ADV. RESPONDENT BY : MS. MONA MOHANTY SR. DR ORDER PER R.C.SHARMA AM : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E EXPARTE ORDER OF THE CIT(A) DATED 23.3.2009 FOR THE AY 2006-07 IN THE MATTER OF ORDER PASSED U/S 144 OF THE IT ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN CIVIL CONSTRUCT ION WORK. ALONGWITH THE RETURN OF INCOME IT FILED AUDITED ACCOUNTS AND AUDIT REPOR T IN PRESCRIBED FORM NO. 3CB AND 3CD DECLARING TAXABLE INCOME OF RS. 4 69 540/-. THE CASE WAS TAKEN UNDER SCRUTINY AND NOTICES WERE RECEIVED U/S 143(2) AND U /S 142(1). THE AO OBSERVED THAT ASSESSEE DID NOT APPEAR AND JUST SOUGHT FOR A DJOURNMENT. ACCORDINGLY THE AO COMPLETED THE ASSESSMENT UNDER SECTION 144 AND A PPLIED NP RATE OF 10% OF THE GROSS CONTRACT OF RECEIPT OF RS. 2.03 CRORES. BY THE IMPUGNED ORDER AND BY 2 PASSING EXPARTE ORDER CIT(A) CONFIRMED THE ACTION O F THE AO AGAINST WHICH THE ASSESSEE IS FURTHER IN APPEAL BEFORE US. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO HAS FRAMED ASSESSMENT U/S 144 WHEREIN HE HAS ESTIMATED INCOME AT 10%. WHILE FRAMING BEST OF ASSESSMENT U/S 144 THE AO HAS SUPPOSED TO CONSIDER THE MATERIAL PLACED BEF ORE HIM. EVEN THOUGH THERE MAY BE SOME GUESS WORK BUT THE AO IS NOT EMPOWERED TO TAKE ARBITRARY FIGURE WHILE FRAMING THE ASSESSMENT U/S 144. FOR APPLYIN G A PARTICULAR NP RATE THE COMPARATIVE RATE APPLIED IN SIMILAR TRADE BY OTHER ASSESSEE IN SIMILAR TRADE AND PLACED UNDER SIMILAR CIRCUMSTANCES ARE ALSO REQUIR ED TO BE BROUGHT ON RECORD OR IF THE ASSESSEE HIMSELF HAS APPLIED A PARTICULAR NP RA TE EARLIER IN PREVIOUS YEAR THAT CAN ALSO BE MADE THE BASIS FOR ESTIMATING THE INCO ME. THE HONBLE SUPREME COURT IN THE CASE OF BRIJ BUSHAN LAL PRAUDAMAN KUMA R 115 ITR 524 OBSERVED THAT EVEN THE BEST JUDGEMENT ASSESSMENT MUST HAVE A R EASONABLE NEXUS TO THE AVAILABLE MATERIALS ON RECORD. IN THE INSTANT CA SE AUDITED ACCOUNTS WERE FILED BY THE ASSESSEE WHEREIN ABOUT 5% NP RATE WAS DECLARED THE AO HAS ESTIMATED 10% NP RATE. HOWEVER NO BASIS HAS BEEN GIVEN FOR APP LYING THE ESTIMATED RATE OF 10%. IN THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTORE THE APPEAL BACK TO THE FILES OF THE AO FOR DECIDING AFRESH AND THE ASSESSEE IS D IRECTED TO PRODUCE FULL DETAILS ALONGWITH THE BOOKS OF ACCOUNTS BEFORE THE AO FOR V ERIFICATION. KEEPING IN VIEW PAST BEHAVIOR OF ASSESSEE WE DIRECT THE ASSESSEE T O APPEAR BEFORE THE AO WITHIN TWO MONTHS FROM THE DATE OF THE SERVICE OF THIS ORD ER AND TO FULFILL THE 3 REQUIREMENTS BY SUBMITTING NECESSARY DETAILS BILLS /VOUCHERS ETC. FOR COMPLETION OF ASSESSMENT. IN CASE OF ANY FAILURE ON THE PART OF THE ASSESSEE THE AO WILL BE AT LIBERTY TO FRAME THE ASSESSMENT AFRESH AS PER LAW. WE DIRECT ACCORDINGLY. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES IN TERMS INDICATED HEREINABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON 26 TH MAY 2010 UPON CONCLUSION OF THE HEARING. SD/- SD/- (C.L. SETHI) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26.05.2010. SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR 4