Siba Shankar Das, Kalahandi v. ACIT, Sambalpur

ITA 337/CTK/2013 | 2008-2009
Pronouncement Date: 23-04-2014 | Result: Allowed

Appeal Details

RSA Number 33722114 RSA 2013
Assessee PAN ABRPD7341K
Bench Cuttack
Appeal Number ITA 337/CTK/2013
Duration Of Justice 10 month(s) 17 day(s)
Appellant Siba Shankar Das, Kalahandi
Respondent ACIT, Sambalpur
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 23-04-2014
Assessment Year 2008-2009
Appeal Filed On 06-06-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE S/SHRI P.K.BANSAL (AM) AND D.T.GARASIA (JM) I.T.A. NO.337/CTK/2013 ASSESSMENT YEAR: 2008-2009 C.O.NO.40/CTK/2013 (ARISING OUT OF I.T.A. NO.315/CTK/2013) SIBA SHANKAR DAS KALAHANDI PA NO.ABRPD 7341 K ACIT CIRCLE 2(1) SAMBALPUR APPELLANT RESPONDENT I.T.A. NO.315/CTK/2013 ASSESSMENT YEAR: 2008-2009 ACIT CIRCLE 2(1) SAMBALPUR SIBA SHANKAR DAS KALAHANDI PA NO.ABRPD 7341 K APPELLANT RESPONDENT FOR THE ASSESSEE: SHRI P PARTHASARATHI/B.N.JOS HI FOR THE REVENUE : SHRI N.K.NEB DATE OF HEARING: 23. 4.2014 DATE OF PRONOUNCEMENT: 23 /4/2014 ORDER PER BENCH: BOTH THE CROSS APPEALS FILED BY THE ASSESSEE AND R EVENUE ARE DIRECTED AGAINST ORDER DATED 14.2.2013 OF LD CIT(A) BERHAMPUR FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION AGAINST THE APPEAL F ILED BY THE REVENUE. 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE D ERIVES INCOME FROM EXECUTION OF CONTRACT WORK. HE HAS FILED THE RETURN OF INCOME FO R THE ASSESSMENT YEAR UNDER CONSIDERATION SHOWING TOTAL INCOME OF RS.33 13 640/-. THE ASSESSM ENT WAS REOPENED UNDER SECTION 147 OF THE ACT. DURING THE SCRUTINY PROCEEDINGS THE AO VE RIFIED THE LEDGER COPY OF ACCOUNTS FILED IN RESPECT OF PURCHASE OF CEMENT MS RODS AND BITUMEN AND NOTICED THAT ASSESSEE HAS MADE ALMOST CASH PAYMENT FOR EACH PURCHASE THE DETAILS OF WHICH ARE REFLECTED AT PAGES 2 TO 7 OF THE ASSESSMENT ORDER . ASSESSEE HAS ALSO MADE CASH PAYMENT OF RS.22 933/- TOWARDS VEHICLE REPAIRING RUNNING AND MAINTENANCE EXPENSES. THE AS SESSING OFFICER HAS NOTICED THAT SOME OF THE PAYMENTS WERE MADE IN EXCESS OF RS.20 000/- AND ACCORDINGLY MADE THE ASSESSMENT UNDER SECTION 143(3) R.W.S 147 DETERMINING THE TOTA L INCOME OF RS. 1 49 35 340/-. BEING AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL BE FORE THE CIT(A). AFTER CONSIDERING THE FACT IN DETAIL THE CIT(A) ALLOWED PART RELIEF TO THE AS SESSEE. THE CIT(A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE AND DIRECTED THE AO TO TAKE 9% OF T HE GROSS CONTRACT RECEIPT OF THE ASSESSEE. 3. THE DEPARTMENT IS IN APPEAL AGAINST THE DIRECTION O F THE CIT(A) TO IGNORE THE CLEAR CUT APPLICABILITY OF STATUTORY PROVISION OF SECTION 40A (3) OF THE ACT WHERE THE CONTRAVENTION FOR MAKING CASH PAYMENTS IN EXCESS OF RS.20 000/- TO A PARTICULAR PERSON ON A DAY. THE ASSESSEE IN APPEAL AGAINST THE DECISION OF THE CIT (A) TO AD OPT PROFIT RATE OF 9% INSTEAD OF 8%. THE ASSESSEE IS IN APPEAL HAS FILED CROSS OBJECTION IN SUPPORT OF THE ORDER OF ID CIT(A). 4. AT THE TIME OF HEARING ID A.R. REQUESTED TO WITHDR AWN THE CROSS OBJECTION FILED BY THE ASSESSEE THEREFORE CROSS OBJECTION IS DISMISSED A S WITHDRAWN. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD OF THE CASE. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT T HE ASSESSEE IS A SPECIAL CLASS CONTRACTOR AND HIS BOOKS ARE AUDITED UNDER SECTION 44AB OF THE ACT . THE AO HAS VERIFIED THE AUDITED ACCOUNTS. WE FIND THAT THE ASSESSEE HAS RETURNED HIS INCOME A T RS.33 13 640/- WHEREAS THE AO HAS ASSESSED THE INCOME AT RS. 1 49 35 340/- IN THE A SSESSMENT ORDER UNDER SECTION 143(3) R.WS 3 147 OF THE ACT. THE AO HAS ALSO DISALLOWED SOME OF THE EXPENDITURE UNDER SECTION 40A(3) OF THE ACT. THE AO HAS ALSO MADE THE ADDITION OF RS.34 13 623/- REPRESENTING THE WAGES PAYABLE TO VARIOUS PERSONS. THEREFORE THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) HAS REJECTED THE BOOKS OF ACCOUNT AND TAKEN THE TOTAL T URNOVER AND ESTIMATED THE GROSS PROFIT @ 9%. THE CIT(A) HELD THAT THE ASSESSEE IS A CIVIL CONTRACTOR AND THE WAY THE ASSESSEE HAS MAINTAINED THE ACCOUNTS RELATING TO WAGES THE DISCREPANCIES IN TH E PURCHASE FROM NANDARAM KISHANLAL WHICH HAVE NOT BEEN RECONCILED BY THE ASSESSEE THE AO REJECTED THE BOOKS OF ACCOUNTS AND ESTIMATED THE PROFIT @ 9% OF THE GROSS TURNOVER I.E. RS.6 58 95 924/-. WE FIND THAT THE CIT(A) HAS DELETED ALL OTHER ADDITIONS. THERE ARE VARIOUS DECISIONS THAT WHERE T HE GROSS RECEIPTS OF THE ASSESSEE EXCEEDS RS.1 CROR E AND IF ASSESSEE FAILS TO MAINTAIN BOOKS OF ACCOUNT THE GROSS PROFIT SHOULD BE ESTIMATED AT 8%. IN THE INSTANT CASE THE TURNOVER IS MORE THAN RS.1 CRORE BUT THE CIT(A) HAS ESTIMATED GROSS PROFIT @ 9% WITHOUT ANY VALID BASIS. THEREFORE WE DIRECT THE A O TO TAKE GROSS PROFIT @ 8% INSTEAD OF 9% ADOPTED BY THE CIT(A). 6. IN THE RESULT APPEAL FILED BY THE DEPARTMENT IS DISMISSED AND THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE CROSS OBJECTION FILED BY T HE ASSESEE IS DISMISSED. SD/- SD/- (P.K.BANSAL) (D.T.GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED CUTTACK 23/4/2014 B.K.PARIDA SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SRI SIBA SHANKAR DAS C/O LATE SARAT CHANDRA DAS AT/PO: NUAPSDR BHAWANIPATNA KALAHANDI. 2. THE REVENUE: ACIT CIRCLE 2(1) SAMBALPUR 3. THE CIT SAMBALPUR 4. THE CIT(A) BERHAMPUR 5. DR CUTTACK BENCH 6. GUARD FILE. TRUE COPY// BY ORDER ASST. REGISTRAR ITAT CUTTACK 4 1. DATE OF DICTATION 23.4.2014. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER 23.4.2014OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER .............. .. 9. DATE OF DISPATCH OF THE ORDER ..