Shri Manohar Kumar Bhatia, Indore v. The ITO 4(2), Indore

ITA 583/IND/2010 | 2005-2006
Pronouncement Date: 27-01-2011 | Result: Allowed

Appeal Details

RSA Number 58322714 RSA 2010
Bench Indore
Appeal Number ITA 583/IND/2010
Duration Of Justice 4 month(s) 17 day(s)
Appellant Shri Manohar Kumar Bhatia, Indore
Respondent The ITO 4(2), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 27-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 27-01-2011
Assessment Year 2005-2006
Appeal Filed On 10-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER PAN NO. :ABNPB6831G I.T.A.NO. 583/IND/2010 A.Y. : 2005-06 SHRI MANOHAR KUMAR BHATIA INCOME-TAX OFFICER 4(2) 71A RADHA NAGAR VS INDORE. INDORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHISH GOYAL C. A. RESPONDENT BY : SHRI PRADEEP KUMAR MITRA SR.. DR O R D E R THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 16.6.2010 ON THE FOLLOWING GROUNDS :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE - 1. THE LD. CIT(A) ERRED IN SUSTAINING THE ASSESSMENT WHICH IS BARRED BY LIMITATION PASSED WITHOUT JURISDICTION BAD-IN-LAW CONTRARY TO MATERIAL AND LAW AND WAS ILLEGAL. -: 2: - 2 2. THE LD. CIT(A) HAD NO JURISDICTION IN MAKING ENHANCEMENT. 3. THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT GIVING ANY FINDING ON FOLLOWING DISALLOWANCES MADE BY THE LD. AO :- PARTICULARS AMOUNT DISALLOWED WAGES RS. 1 85 810/- PACKING MATERIAL RS. 16 740/- PACKING EXPENSES RS. 4 495/- 4. THE LD. CIT(A) WAS NOT JUSTIFIED IN MAKING DISALLOWANCES OF FOLLOWING EXPENSES :- PARTICULARS AMOUNT DISALLOWED RENT RS. 36 000/- TELEPHONE RS. 14 177/- ACCOUNT WRITING RS. 6 000/- INTEREST RS. 35 452/- CONSULTAN CY RS. 25 776/- DEPRECIATION RS. 26 600/- RS.1 44 405/- -: 3: - 3 5. THE LD. CIT(A) WAS NOT JUSTIFIED IN :- (A) REJECTING THE BOOKS OF ACCOUNT U/S 145(3). (B) ESTIMATING THE SALES AT RS. 18 00 000/- AGAINST SALES OF RS. 14 82 201/- DECLARED BY APPELLANT. (C) MAKING ADDITION OF RS. 2 35 905/-. (D) THE LD. CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT WAS NOT ENTITLED TO TELESCOPING BENEFIT. 2. AT THE TIME OF HEARING I HAVE HEARD SHRI ASHISH GO YAL LEARNED COUNSEL FOR THE ASSESSEE AND SHRI PRADEEP K UMAR MITRA LD. SENIOR D.R. AT THE OUT-SET THE LEARNED COUNSEL FOR THE ASSESSEE SHRI GOYAL DID NOT PRESS GROUNDS NO.1 & 3. THEREFORE BOTH THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 3. AS FAR AS GROUND NOS. 4 & 5 ARE CONCERNED THE ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS THAT THE FIRST APPELLATE AUTHORITY HAS DULY NOTED THAT THESE EXPEN SES HAVE BEEN CLAIMED ONLY IN THIS YEAR AND THIS FACTUAL FIN DING IS MATTER OF RECORD. AS PER LEARNED COUNSEL THOUGH THE ASSESSEE -: 4: - 4 CLAIMED LESS IN EARLIER YEARS BUT THE CLAIM WAS MA DE IN EARLIER YEARS ALSO FOR WHICH MY ATTENTION WAS INVITED TO PA GE NO. 16 OF PAPER BOOK. THE EXPENSES ON TELEPHONE AND DEPRECIAT ION ETC. WERE CLAIMED TO BE NECESSARY FOR CARRYING OUT BUSI NESS. IT WAS ALSO SUBMITTED THAT THE ASSESSEE SURRENDERED THE AM OUNTS DURING SURVEY ON THE ALLEGED DISCREPANCIES AND THE LD. FIRST APPELLATE AUTHORITY HAS NO WHERE STATED THAT THE EX PENSES ARE NOT VERIFIABLE OR THEY ARE BOGUS. RELIANCE WAS PLAC ED UPON THE DECISION IN THE CASES OF BRIJMOHANDAS DEVI PRASAD 8 ITJ 391 (INDORE) SUNIL KUMAR SONI 8 ITJ 449 (INDORE) AND SAGARMAL TILGOTA 8 ITJ 452 (INDORE). ON GROUND NO. 5 IT WA S CONTENDED THAT THE SURRENDER DURING SURVEY WAS ACCEPTED IN TH E RETURN THEREFORE THE IMPUGNED ADDITION IS COVERED BY THE SAID SURRENDER. THE LEARNED COUNSEL ALSO INVITED MY ATTE NTION TO THE SALES TAX ASSESSMENT ORDER ( COPY OF WHICH WAS PLACED IN PAPER BOOK ). IT WAS CLAIMED THAT THE TURNOVER OF T HE ASSESSEE WAS ACCEPTED BY THE SALES TAX DEPARTMENT. THE CRUX OF THE ARGUMENT IS THAT SINCE THE SURRENDER WAS MADE DURIN G THE YEAR THEREFORE THE TURNOVER OF THE ASSESSEE SHALL BE RS. 18 88 294/- WHICH IS HIGHER THAN THE ESTIMATION MA DE BY THE -: 5: - 5 LD. CIT(A) AND IN ANY CASE INSTEAD OF GROSS PROFIT RATE NET PROFIT RATE IS TO BE CONSIDERED. 4. KEEPING IN VIEW THE TOTALITY OF FACTS AVAILABLE ON RECORD AND THE ARGUMENTS ADVANCES BY THE LEARNED RESPECTIV E COUNSELS THIS APPEAL IS REMANDED BACK TO THE FILE OF THE LD. CIT(A) WHO IS TO EXAMINE THE FACTS BECAUSE EITHER T HE ADDITION HAS TO BE MADE AS PER THE ASSESSMENT ORDER OR AS PE R THE ORDER OF THE LD. CIT(A) AFTER MAKING VERIFICATION/ EXAMINATION OF FACTS AND THEN DECIDE AS PER LAW. THEREFORE THI S APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ON LY. 5. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LEARNED RESPECTIVE COUNSEL FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 27.01.2011. SD/- (JOGINDER SINGH) JUDICIAL MEMBER DATED : 27 TH JANUARY 2011. CPU* 281