Tarun Malhotra, Rohtak v. ITO, Rohtak

ITA NO. 4737/DEL/2010 1 IN THE INCOME TAX APPELATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER & SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO. 4737/DEL/2010 A.Y. : 2007-08 SH. TARUN MALHOTRA INCOME TAX OFFICER S/O SHRI YOGENDRA NATH WARD 1 H.NO. 310 MODEL TOWN ROHTAK (HARYANA) ROHTAK (HARYANA) VS. [PAN : AJAPM7483N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K.L. GUGLANI ADV. DEPARTMENT BY : SH. AMRENDRA KUMAR SR. D.R. O R D E R PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 27.8.201 0 AND PERTAINS TO ASSESSMENT YEAR 2007-08. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOM E TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF ` 1 2 3 246/- MADE BY THE ASSESSING OFFICER AS ESTIMATED PROFIT. 3. IN THIS CASE DURING THE UNDER CONSIDERATION TH E ASSESSEE HAS DONE WORK ON BEHALF OF MR. CHIRAG AND THE NATURE OF WORK WAS FILLING ITA NO. 4737/DEL/2010 2 DIESEL AND PETROL IN THE MOBILE TOWERS OF AIRTEL COMPA NY. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE WAS MAIN TAINING TWO BANK ACCOUNTS WITH HDFC BANK WHEREIN THE TOTAL CREDIT ENT RIES AMOUNTED TO ` 54 90 581/- AND SOUGHT THE EXPLANATION OF THE ASS ESSEE FOR THE SAID CREDIT ENTRIES. THE ASSESSEE EXPLAINED THAT ` 39 5 0 000/- OUT OF THE ABOVE MENTIONED CREDIT ENTRIES IS ON ACCOUNT OF RE CEIPTS FROM MR. CHIRAG FROM WHOM HE HAS BEEN EXECUTING THE CONTRACT. FOR THE REMAINING ENTRIES THE ASSESSEE COULD NOT OFFER EXPLA NATION. ON PERUSAL OF THE BANK ACCOUNT ASSESSING OFFICER OBSERVED TH AT THE AMOUNTS HAVE BEEN DEPOSITED AND WITHDRAWN AT REGULAR INTERV ALS SUGGESTING THAT THE ASSESSEE WAS ALSO INVOLVED IN SOME OTHER BU SINESS / PROFESSION AND HAD A TURNOVER OF ` 15 40 581/- (` 5 4 90 581 39 50 000). AS THE ASSESSEE HAS FAILED TO DISCLOS E THE NATURE OF THESE TRANSACTIONS AND OTHER RELATED DETAILS THE ASSESS ING OFFICER ESTIMATES NET PROFIT FROM THIS UNDISCLOSED BUSINESS / PROFESS ION AT 20% OF THE TURNOVER OF ` 15 40 581/- BEING ` 3 08 116/- AND AD DED THE SAME AS INCOME FROM UNDISCLOSED SOURCES. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CONSIDERED THE ORDER OF THE ASSESSING OFFIC ER AND THE SUBMISSIONS MADE BY THE A.R. ADMITTEDLY THE ASSES SEE COULD ITA NO. 4737/DEL/2010 3 NOT EXPLAIN THE NATURE OF TRANSACTIONS PERTAINING T O THE TRANSACTIONS OF ` 15 40 581/- APPEARING IN THE BANK ACCOUNTS. CONSIDERING THE FACTS OF THE CASE THE ASSESSING OF FICER HAS COME TO THE CONCLUSION THAT THESE TRANSACTIONS REVEAL TH AT THE ASSESSEE WAS ENGAGED IN SOME OTHER BUSINESS/ PROFESSION AND THEREFORE ESTIMATED THE PROFIT. THE ACTION OF THE ASSESSING OFFICER IN COMING TO SUCH A CONCLUSION IS FAIR AND LOGICAL AS THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF EXPLAINING THE NATURE OF THE TRANSACTIONS. NOW THE ISSUE THAT REMAINS TO BE AD JUDICATED IS WHETHER THE PROFIT ESTIMATE AT 20% BY THE ASSESSING OFFICER IS REASONABLE OR NOT. FROM THE RETURN OF INCOME IT A PPEARS THAT THE ASSESSEE ADMITTED AN INCOME OF ` 1 78 420/- ON A TURNOVER OF ` 39 81 148/- WHICH IS AROUND 4.5%. IN THIS BACKGRO UND ESTIMATION AT 20% OF THE TURNOVER OF ` 15 40 581/- OF THE ASSESSING OFFICER SEEMS TO BE ON THE HIGHER SIDE. I FEEL THAT THE ENDS OF JUSTICE WOULD BE MET IF THE PROFIT IS ESTIMAT ED AT 8% AS INDICATED IN SECTION 44AD OF THE IT ACT AND THEREFOR E AN AMOUNT OF ` 1 23 246/- IS SUSTAINED OUT OF THE ADDITION MAD E OF ` 3 08 116/-. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. ADMITTEDLY ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN TH E NATURE OF ITA NO. 4737/DEL/2010 4 TRANSACTION PERTAINING TO ` 15 40 581/- APPEARING IN THE BANK ACCOUNTS. UNDER THE CIRCUMSTANCES A REASONABLE ES TIMATE OF INCOME HAS TO BE MADE. ASSESSING OFFICER HAS DONE THE ES TIMATE @ 20%. HOWEVER THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NOTED THAT IN ANOTHER INCOME RETURNED BY THE ASSESSEE THE RATIO OF PROFIT WAS @ 4.5%. IN THESE CIRCUMSTANCES LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD MADE THE ESTIMATE AT 8%. 7. UPON CAREFUL CONSIDERATION OF THE MATTER WE ARE OF THE OPINION THAT INSTEAD OF 8% 7% WOULD SERVE THE END OF JUSTI CE. ACCORDINGLY WE DIRECT THAT THE PROFIT BE ESTIMATED @ 7% IN THIS CA SE INSTEAD OF 8% AS DIRECTED BY THE LD. COMMISSIONER OF INCOME TAX (APPE ALS). 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/2/2011 UPON CONCLUSION OF THE HEARING. SD/ SD/ SD/ SD/- -- - SD/ SD/ SD/ SD/- -- - [RAJPAL YADAV) [RAJPAL YADAV) [RAJPAL YADAV) [RAJPAL YADAV) [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE: 28/2/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES