ACIT, Gwalior v. Sh. Nathuram Yadav, Tikamgarh

ITA 700/AGR/2008 | 2004-2005
Pronouncement Date: 21-04-2010 | Result: Allowed

Appeal Details

RSA Number 70020314 RSA 2008
Bench Agra
Appeal Number ITA 700/AGR/2008
Duration Of Justice 1 year(s) 4 month(s) 3 day(s)
Appellant ACIT, Gwalior
Respondent Sh. Nathuram Yadav, Tikamgarh
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 21-04-2010
Date Of Final Hearing 21-04-2010
Next Hearing Date 21-04-2010
Assessment Year 2004-2005
Appeal Filed On 18-12-2008
Judgment Text
1 ITA 700-08 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH : AGRA. ( BEFORE SHRI R.K. GUPTA AND SHRI P.K. BANSAL ) ITA NO. 700/AG./2008 ASSTT. YEAR : 2004-05. THE ACIT RANGE-1 VS. SHRI NATHURAM YADAV GWALIOR. CIVIL CONTRACTOR VILLAGE. KUNWARPURA POST DHILLA ORCHHA DIST. TIKAMGARM. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. SHARMA JR. D/R RESPONDENT BY : NONE ORDER PER R.K. GUPTA J.M. THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2004-05. 2. THE DEPARTMENT IS OBJECTING IN DELETING THE ADDI TION OF RS. 26 47 573/- ON ACCOUNT OF ESTIMATION OF NET PROFIT @ 8% MADE BY THE ASSESS ING OFFICER IN VIEW OF PROVISIONS OF SECTION 44AD OF THE ACT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF ISSUE OF NOTICE BY REGISTERED POST. THE APPEAL IS DISPOSED OFF AFTER CONSIDERIN G THE ORDER OF THE AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. 4. IN THIS CASE ASSESSMENT WAS COMPLETED UNDER SECT ION 143(3) ON 18.12.2006 DETERMINING TOTAL INCOME AT RS. 66 45 3990 AND AGRI CULTURAL INCOME AT RS. 2 00 000/-. 2 THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY A PPLYING PROVISIONS OF SECTION 44AD AND TAKEN THE NET PROFIT OF 8% OF THE G.P. WHICH RE SULTED IN AN ADDITION OF RS. 27 07 573/- AND FURTHER ADDITION WAS MADE OF RS. 19 97 888/- O N ACCOUNT OF UNEXPLAINED CASH CREDIT. HOWEVER OUT OF ADDITION OF RS. 27 07 573/- THE LD . CIT (A) DELETED ADDITION OF RS. 26 47 573/- BY OBSERVING THAT ASSESSEE HAD MAINTAIN ED REGULAR BOOKS OF ACCOUNT AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSI NG OFFICER IN THE BOOKS OF ACCOUNT. THE LD. CIT (A) ALSO DELETED THE ADDITION OF RS. 19 97 888/- MADE UNDER SECTION 68. NOW THE DEPARTMENT IS CHALLENGING THE DELETION OF ADDIT ION OF RS. 26 47 573/-. 5. THE LD. D/R INVITED ATTENTION OF THE BENCH ON TH E ORDER OF ASSESSING OFFICER WHERE IT HAS BEEN SPECIFICALLY MENTIONED THAT THE A DVOCATE OF THE ASSESSEE SHRI SURAJ TRIPATHI WHO APPEARED ON 14.12.2006 HAS EXPRESSED H IS INABILITY TO PRODUCE THE BOOKS OF ACCOUNT AND VOUCHERS. NO FURTHER OPPORTUNITY COULD BE ALLOWED SINCE THE ASSESSMENT AS GOING TO BE BARRED BY LIMITATION. THE ASSESSEE ALR EADY IGNORED MANY OPPORTUNITIES PROVIDED TO HIM IN A SPAN OF TIME. ACCORDINGLY TH E LD. D/R SUBMITTED THAT IT IS WRONG ON THE PART OF THE LD. CIT (A) IN OBSERVING THAT BOOKS OF ACCOUNT DULY MAINTAINED AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSI NG OFFICER. THEREFORE THE ORDER OF THE ASSESSING OFFICER IS LIABLE TO BE RESTORED ON THIS ISSUE. 6. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D/R AND THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT LD. CIT (A) WAS NOT JUSTIFIED I N OBSERVING THAT ASSESSEE HAS MAINTAINED REGULAR BOOKS OF ACCOUNT AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE BOOKS OF ACCOUNT AS ON THE CONTRARY THE ASSESSING OFFICER HAS SPECIFICALLY MENTIONED THAT INSPITE OF VARIOUS OPPO RTUNITIES PROVIDED TO THE ASSESSEE NO BOOKS OF ACCOUNT AND VOUCHERS WERE PRODUCED. THEREF ORE HE APPLIED THE PROVISIONS OF 3 SECTION 44AD. BOTH THE LOWER AUTHORITIES HAVE OBSE RVED CONTRARY OBSERVATIONS IN THEIR ORDERS. THE ASSESSING OFFICER IS SAYING THAT NO BO OKS OF ACCOUNT WERE PRODUCED WHEREAS LD. CIT (A) HAS STATED THAT BOOKS OF ACCOUNT WERE P RODUCED AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE BO OKS OF ACCOUNT. TO MEET THE ENDS OF JUSTICE WE ARE OF THE CONSIDERED VIEW THAT THE MAT TER SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH IN RE SPECT OF APPLICATION OF G.P. RATE. IF THE BOOKS OF ACCOUNT ARE MAINTAINED BY THE ASSESSEE TH EN THE PROFIT OF THE ASSESSEE HAS TO BE COMPUTED IN VIEW OF PROVISIONS OF SECTIONS 28 TO 43 OF THE IT ACT AS HELD BY HONBLE SUPREME COURT IN THE CASE OF A. SANYASI RAO 219 IT R 330 (SC). ACCORDINGLY WE RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER TO EXAMINE THIS ISSUE AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 7. IN THE RESULT THE APPEAL OF THE DEPARTMENT IS A LLOWED FOR STATISTICAL PURPOSE. 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 04.2010 SD/- SD/- ( P.K. BANSAL ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AGRA DATED : 21/04/2010. D/- COPY FORWARDED TO :- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A) CONCERNED. THE D/R ITAT AGRA. GUARD FILE (ITA 700/AG/2008) BY ORDER AR ITAT AGRA. 4