The ACIT, 1 (2), v. M/s Bhopal Transmission Pvt.Ltd,

ITA 76/IND/2009 | 2004-2005
Pronouncement Date: 03-05-2010 | Result: Dismissed

Appeal Details

RSA Number 7622714 RSA 2009
Bench Indore
Appeal Number ITA 76/IND/2009
Duration Of Justice 1 year(s) 2 month(s) 12 day(s)
Appellant The ACIT, 1 (2),
Respondent M/s Bhopal Transmission Pvt.Ltd,
Appeal Type Income Tax Appeal
Pronouncement Date 03-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 03-05-2010
Assessment Year 2004-2005
Appeal Filed On 20-02-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.76/IND/2009 A.YS. 2004-05 ASSTT. COMMISSIONER OF INCOME TAX 1(2) BHOPAL APPELLANT VS M/S BHOPAL TRANSMISSION PRIVATE LIMITED BHOPAL PAN AABCB-2785M RESPONDENT APPELLANT BY : SHRI RAJIV VASHNEY RESPONDENT BY : NONE O R D E R PER JOGINDER SINGH JM THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 1.12.2008 ON THE GROUND THAT ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO ASSESS THE TOTAL INCOME AFTER ADOPTING THE NET PROFIT FIGURE FROM TH E AUDITED PROFITS AND LOSS ACCOUNT AS THE BASIS AND TO CONSIDER THE DISAL LOWANCES IN LINE WITH 2 THE PAST ASSESSMENTS AND FURTHER ERRED IN ALLOWING THE EXPENSES ON SALESTAX INTEREST ON WORKING CAPITAL TERM LOAN EN TRY TAX EXPORT TAX BANK CHARGES AND COMMISSION AMOUNTING TO RS.2 60 20 9/- RS.7 99 095/- RS. 41 417/- RS. 3 045/- AND RS.16 761/- RESPECTIVELY. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD THE LEARNED CIT DR WHO HAS RELIED UPON THE ASSESSMENT ORDER WHEREAS NO BODY WAS PRESENT FOR THE ASSESSEE. A REGISTERED NOTICE OF HEARING W AS SENT TO THE ASSESSEE WHICH HAS BEEN RETURNED BY THE POSTAL DEPA RTMENT WITH THE REMARK THAT NOBODY IS RESIDING AT THE GIVEN ADDRESS AND THE ADDRESSEE COMPANY HAS BEEN CLOSED DOWN THEREFORE RETURNED T O THE SENDER. IN VIEW OF THESE FACTS WE HAVE NO OPTION BUT TO PROCE ED EX PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON THE FILE. BRIEF FACTS ARE THAT THE ASSESSEE A PRIVATE LIMITED COMPANY DERIV ES INCOME FROM MANUFACTURE OF POWER AND DISTRIBUTION TRANSFORMERS ISOLATERS AB SWITCHES ETC. THE ASSESSEE DECLARED LOSS OF RS.1 8 5 05 630/- IN ITS RETURN FILED ON 27.10.2004 ENCLOSING THEREWITH THE REPORT OF THE AUDITOR WHICH WAS PROCESSED UNDER SECTION 143(1)(A) ON 17 TH FEBRUARY 2005. IN PURSUANCE TO THE NOTICES ISSUED TO THE ASSESSEE TH E ASSESSMENT PROCEEDINGS WERE ATTENDED BY THE ASSESSEE FROM TIME TO TIME AND THE ASSESSEE PREFERRED WRITTEN SUBMISSIONS SUPPORTED BY DOCUMENTS BOOKS OF ACCOUNTS WHICH WERE TEST CHECKED BY THE ASSESSIN G OFFICER. IN ITS SUBMISSIONS BEFORE THE ASSESSING OFFICER IT WAS CL AIMED THAT THE BOOKS 3 OF ACCOUNTS AND OTHER RELEVANT DOCUMENTS WERE LYING IN THE PREMISES OF THE ASSESSEE COMPANY WHICH WAS LOCKED BY NAGAR PALI KA NIGAM BHOPAL BY AFFIXTURE NOTICE DATED 11.2.2006 OF TAKI NG POSSESSION AND RESTRAINED ANYONE ELSE TO DISTURB THE POSSESSION TH EREIN. THE UCO BANK ALSO TOOK POSSESSION OF THE COMPANYS PREMISES BY A FFIXTURE OF NOTICE DATED 8.2.2006. IN THE ABSENCE OF DOCUMENTS AND VO UCHERS THE INCOME OF THE ASSESSEE WAS ASSESSED AT NIL. 3. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) OBSERVED AS UNDER :- 6. I HAVE CONSIDERED THE SUBMISSIONS ADVANCED ON BEHALF OF THE APPELLANT AND AM CONSIDERABLY IMPRESSED BY THE ARGUMENTS MADE IN SUPPORT THEREOF. OBVIOUSLY WITH THE KIND OF OVERWHELMING EVIDENCE BROUGHT ON RECORD BY THE LEARNED AR BOTH AT THE ASSESSMENT AND APPELLATE STAGES THE EXISTENCE OF THE PROPER BOOKS OF ACCOUNTS AND VOUCHERS CANNOT BE DENIED. HOWEVER IN THE UNFORTUNATE CIRCUMSTANCES THE APPELLANT HAS BEEN PLACED IN THE BOOKS OF ACCOUNTS AND OTHER RECORDS ARE NOT IN ITS POSSESSION OR UNDER ITS CONTROL AND HENCE THESE COULD NOT BE PRODUCED DURING THE ASSESSMENT PROCEEDINGS. I AM MORE THAN SATISFIED THAT THERE W AS NO WILLFUL DEFAULT BY THE APPELLANT IN THIS REGARD. I AM IN COMPLETE AGREEMENT WITH THE LEARNED AR THAT THOUGH THE APPELLANT WAS UNABLE TO PRODUCE THE REQUIRED DOCUMENTS/RECORDS DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT BY ITSELF DOES NOT MEAN THAT THESE DOCUMENTS/RECORDS DO NOT EXIST OR THAT THE UNIT WAS NOT FUNCTIONING IN THE RELEVANT ASSESSMENT YEAR. NO SUCH FINDING HAS BEEN PUT ON RECORD BY TH E ASSESSING OFFICER. ON THE CONTRARY AUDITED STATEMENT OF ACCOUNTS CERTIFYING EXISTENCE OF PROPE R RECORD HAS BEEN FILED ALONG WITH THE RETURN OF INCO ME. THUS THERE ACTUALLY EXISTED NO GROUND FOR ASSESSING 4 THE APPELLANTS INCOME ATG NIL. THE A.O. HAS CLEARL Y FAILED TO MAKE WHAT HE HONESTLY BELIEVES TO BE A FA IR ESTIMATE OF THE PROPER FIGURE OF ASSESSMENT BY CONSIDERING LOCAL KNOWLEDGE AND REPUTE IN REGARD TO THE APPELLANTS CIRCUMSTANCES AND HIS KNOWLEDGE OF PREVIOUS RETURNS FILED BY IT AND ASSESSMENTS MADE THEREON ALL OTHER MATTERS WHICH WOULD HAVE ASSISTED HIM IN ARRIVING AT A FAIR AND PROPER ESTIMATE OF IT S TOTAL INCOME. PROBABLY FOR THE FIRST TIME IN THE HISTOR Y OF THE APPELLANT NO RELIANCE HAS BEEN PLACED BY THE ASSESSING OFFICER ON THE AUDITED STATEMENT OF ACCOUNTS FILED WITH THE RETURN OF INCOME. HE HAS ALSO NOT CONSIDERED PASTG ASSESSMENTS OF YOUR APPELLANT. HE HAS SIMPLY ASSESSED YOUR APPELLANT INCOME ARBITRARY AT NIL. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DI RECTED THE ASSESSING OFFICER TO ASSESS THE TOTAL INCOME AFTER ADOPTING THE NET PROFIT FIGURE FROM THE AUDITED PROFIT AND LOSS ACCOUNT AS THE BASIS AND CONSIDER THE DISALLOWANCE IN LINE WITH THE PAST ASSESSMENT. HE WAS FURTHER ADVISED TO ALLOW THE EXPENSES WHICH CONTAINED IN PA RA 4 OF THE IMPUGNED ORDER THE DETAILS OF WHICH WERE AVAILABLE AS GIVEN IN THE TABLE AT PAGE 4 OF THE IMPUGNED ORDER. THE REVENUE IS AG GRIEVED AND IS IN APPEAL BEFORE THE TRIBUNAL. IF THE TOTALITY OF FACT S IS ANALYSED ADMITTEDLY THE RELEVANT RECORD COULD NOT BE PRODUCED BEING THE ASSESSEE COMPANY WAS LOCKED BY THE MUNICIPAL CORPORATION AS WELL AS BY THE BANK. HOWEVER THE FACTS REMAIN THAT THE BOOKS OF ACCOUNT S WERE AUDITED AND IT IS THE CASE OF A LOSS. THERE IS A FINDING IN THE IMPUGNED ORDER THAT AUDITED BOOKS OF ACCOUNTS CERTIFYING EXISTENCE OF P ROPER RECORD WERE FILED BY THE ASSESSEE ALONG WITH THE RETURN OF INCO ME. EVEN THE PAST 5 ASSESSMENTS WERE NOT CONSIDERED BY THE ASSESSING OF FICER AND THE INCOME WAS ARBITRARILY ASSESSED AT NIL. IN VIEW OF THESE FACTS THERE IS NO INFIRMITY IN THE STAND OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE IT IS UPHELD. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 27 TH APRIL 2010 IN THE PRESENCE OF THE LEARNED CIT DR AT THE CONCLUSION OF THE HEARING. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MAY 3 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/