M/s. Mehmoodbhai Pritamsingh Jamdar, Bharuch v. The ACIT.,Circle-2,, Baroda

ITSSA 295/AHD/2010 | 2003-2004
Pronouncement Date: 02-07-2010 | Result: Partly Allowed

Appeal Details

RSA Number 29520516 RSA 2010
Assessee PAN ACAPJ5829N
Bench Ahmedabad
Appeal Number ITSSA 295/AHD/2010
Duration Of Justice 2 month(s) 25 day(s)
Appellant M/s. Mehmoodbhai Pritamsingh Jamdar, Bharuch
Respondent The ACIT.,Circle-2,, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 02-07-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 02-07-2010
Date Of Final Hearing 02-07-2010
Next Hearing Date 02-07-2010
Assessment Year 2003-2004
Appeal Filed On 07-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' [BEFORE SHRI MAHAVIR SINGH JM & SHRI A N PAHUJA AM ] IT(SS)A NOS.283 TO287/AHD/2010 [ASST. YEARS:-2001-02 TO 2005-06] SHRI BABUBHAI PRITAMSINGH JAMADAR DANDIA BAZAR BHARUCH [PAN: ACAPJ 5829N] V/S ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 BARODA [APPELLANT] [RESPONDENT] IT(SS)A NOS.288 TO 292 & 1067/AHD/2010 [ASST. YEARS:-2001-02 2002-03 & 2004-05 TO 2007-08 ] M/S JAMADAR TRANSPORT DANDIA BAZAR BHARUCH [PAN: AABFJ 8811F] V/S ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 BARODA [APPELLANT] [RESPONDENT] IT(SS)A NOS.293 TO 297/AHD/2010 [ASST. YEARS:-2001-02 TO 2005-06] SHRI MEHMOODBHAI PRITAMSINGH JAMADAR DANDIA BAZAR BHARUCH [PAN: ACAPJ 5828 D] V/S ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 BARODA [APPELLANT] [RESPONDENT] ASSESSEES BY :- SHRI MEHUL K PATEL AR REVENUE BY:- SHRI K MADHUSUDAN DR O R D E R PER BENCH: THESE 16 APPEALS FILED BY THE AFORESAID THREE DIFF ERENT ASSESSEES AGAINST THREE SEPARATE ORDERS DATED 25.1. 2010 OF THE LD. CIT(APPEALS)-IV AHMEDABAD RAISE THE FOLLOWING GRO UNDS:- IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 2 IT(SS)A NO.283 TO 287/AHD/10: 1 THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) HAS GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX. PARTE A ND NOT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESEN T THE APPEAL. 2 THAT ON THE FACTS AND IN LAW THE LEARNED CIT(A) H AS GRIEVOUSLY ERRED IN CONFIRMING THE ADDITION OF RS.50 500/- IN THE AY 01 -02 RS.40 400/- IN THE AY 02-03 RS.52 300/- IN THE AY 03-04 RS.30 00 0/- IN THE AY 04-05 AND RS.36 000/- IN THE AY 05-06 MADE TOWARDS LOW HO USE HOLD WITHDRAWALS. 3 THAT ON FACTS AND EVIDENCE ON RECORD IT OUGHT TO HAVE BEEN HELD THAT THE HOUSE HOLD WITHDRAWALS SHOWN ARE ADEQUATE AND N O ADDITION IS WARRANTED ON ESTIMATE BASIS. 4 THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND A NY GROUND OF APPEAL. IT(SS)A NO.288 &289/AHD/10: 1 THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) HAS GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX. PARTE A ND NOT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESEN T THE APPEAL. 2 THAT ON FACTS AND IN LAW THE LEARNED CIT(A) HAS G RIEVOUSLY ERRED IN HOLDING THAT THE AO WAS JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNTS AND ESTIMATING THE INCOME BY APPLYING GROSS PROFIT RATE . 3 THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN L AW AND ON FACTS IN CONFIRMING THE REJECTION OF BOOKS OF ACCOUNTS AND D ETERMINING THE INCOME OF THE APPELLANT BY APPLYING THE PROVISIONS OF SECTION 44AE OF THE INCOME-TAX ACT 1961. 4 THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND A NY GROUND OF APPEAL. IT(SS)A NO.290 TO 292 & 1067/AHD/10: 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX. PARTE A ND NOT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESEN T THE APPEAL. 2. THAT ON FACTS AND IN LAW THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN HOLDING THAT THE AO WAS JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNTS AND ESTIMATING THE INCOME BY APPLYING GROSS PROFIT RATE . IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 3 3. THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE REJECTION OF BOOKS OF ACCOUNTS AND D ETERMINING THE INCOME OF THE APPELLANT BY APPLYING THE PROVISIONS OF SECTION 44AE OF THE INCOME-TAX ACT 1961. 4 THAT ON FACTS AND EVIDENCE ON RECORD IT OUGH T TO HAVE HELD THAT THERE WAS NO BASIS FOR APPLYING SECTION 44AE O F THE ACT TO 10 VEHICLES INSTEAD OF 8 VEHICLES AS SHOWN BY TH E APPELLANT. 5 THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND A NY GROUND OF APPEAL. IT(SS)A NO.293 TO 297/AHD/10: 1 THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) HAS GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX. PARTE A ND NOT AFFORDING REASONABLE OPPORTUNITY TO THE APPELLANT TO REPRESEN T THE APPEAL. 2 THAT ON THE FACTS AND IN LAW THE LEARNED CIT(A) H AS GRIEVOUSLY ERRED IN CONFIRMING THE ADDITION OF RS.36 930/-IN THE AY 01- 02 RS.50 200/- IN THE AY 02-03 RS.52 300/- IN THE AY 03-04 RS.30 00 0/- IN THE AY 04- 05] AND RS.36 000/- IN THE AY 05-06 MADE TOWARDS LO W HOUSE HOLD WITHDRAWALS. 3 THAT ON FACTS AND EVIDENCE ON RECORD IT OUGHT TO HAVE BEEN HELD THAT THE HOUSE HOLD WITHDRAWALS SHOWN ARE ADEQUATE AND N O ADDITION IS WARRANTED ON ESTIMATE BASIS. 4 THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND ANY GROUND OF APPEAL. SINCE SIMILAR ISSUES ARE INVOLVED THESE APPE ALS WERE HEARD SIMULTANEOUSLY FOR THE SAKE OF CONVENIENCE AND ARE BEING DISPOSED OF THROUGH THIS COMMON ORDER. 2. FACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT A SEARCH U/S 132 OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERRED T O AS THE ACT] WAS CONDUCTED IN THE PREMISES OF M/S JAMADAR GROUP OF C ASES ON 17-01- 2007 WHEN A NUMBER OF DOCUMENTS WERE SEIZED. CONSE QUENTLY ASSESSMENT PROCEEDINGS WERE INITIATED IN TERMS OF P ROVISIONS OF SEC. 153A OF THE ACT WITH THE SERVICE OF NOTICE ON THESE THREE ASSESSEES ON 5-11-2007. IN RESPONSE THE ASSESSEES SHRI BABUB HAI IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 4 PRITAMSINGH JAMADAR & SHRI MEHMOODBHAI PRITAMSINGH JAMADAR FILED THEIR RETURNS OF INCOME FOR THE AY 2001-02 T O 2005-06 ON 13- 03-2008 WHILE THE FIRM M/S JAMADAR TRANSPORT FILED ITS RETURN FOR THE AYS.2001-02 2002-03 & AY2004-05 TO 2006-07 ON 27.1 2.2007. EVEN THE RGULAR RETURN FOR THE AY 2007-08 WAS ALSO FILED BY THE FIRM ON 27.12.2007. A SURVEY U/S 133A OF THE ACT WAS ALSO C ONDUCTED IN THE OFFICE PREMISES THE GROUP SITUATED AT DANDLA BAZAA R BHARUCH WHEN A NUMBER OF BOOKS AND OTHER RELEVANT DOCUMENTS PERT AINING TO M/S JAMADAR TRAVELS M/S JAMADAR TRANSPORT M/S JAMADAR BRICKS MFG. CO. & M/S DI MAMLATDAR & CO. WERE IMPOUNDED. INTER ALIA DETAILS OF 70 VEHICLES IN THE GROUP WERE INVENTORISED. ON THE BASIS OF VARIOUS SEIZED AND IMPOUNDED DOCUMENTS DURING THE COURSE O F ASSESSMENT PROCEEDINGS IN THE CASE OF AFORESAID TWO INDIVIDUA L ASSESSEES THE ASSESSING OFFICER[AO IN SHORT] COLLECTED DETAILS OF WITHDRAWALS FOR MEETING PERSONAL/HOUSEHOLD EXPENSES. THE ASSESSEE S HRI BABUBHAI PRITAMSINGH JAMADAR DISCLOSED FOLLOWING AMOUNT OF W ITHDRAWALS FOR MEETING THE HOUSEHOLD EXPENDITURE :- FINANCIAL YEAR JAMADAR TRAVELS JAMADAR BRICKS JAMADAR TRANSPORT CO. TOTAL 2000-01 21500 - - 21500 2001-02 37600 - - 37600 2002-03 31200 500 - 31700 2003-04 60000 - - 60000 2004-05 60000 - - 60000 2005-06 91742 72000 - 163742 2006-07 465788 1000 - 466788 2.1. SINCE THE ASSESSEE ALONG WITH HIS WIFE HAD THREE SCHOOL GOING CHILDREN CONSIDERING THE STATUS AND STANDARD OF LI VING OF THE ASSESSEE THE AO ESTIMATED FOLLOWING AMOUNTS TOWARDS HOUSEHOLD EXPE NDITURE:- ASSTT. YEAR HOUSEHOLD WITHDRAWALS TOTAL WITHDRAWAL ADDITION 2001-02 72000 21500 50500 IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 5 2002-03 78000 37600 40400 2003-04 84000 31700 52300 2004-05 90000 60000 30000 2005-06 96000 60000 36000 ACCORDINGLY ADDITION WAS MADE FOR THE DIFFERENCE I N EACH OF THE AFORESAID FIVE ASSESSMENT YEARS. 3. ON APPEAL NONE APPEARED ON BEHALF OF THE AS SESSEE SHRI BABUBHAI PRITAMSINGH JAMADAR DESPITE SUFFICIENT OPP ORTUNITY ALLOWED BY THE LD. CIT(A) AS MENTIONED IN PARA 2 OF HIS ORDER AND INSTEAD ADJOURNMENTS WERE REQUESTED CONTINUALLY ON THE GROUND THAT THE DETAILS WERE UNDER PREPARATION. ACCORDINGLY TH E LD. CIT(A) CONCLUDED THAT THE ASSESSEE WAS NOT INTERESTED IN P URSUING THE APPEALS AND UPHELD THE AFORESAID ADDITION MADE BY T HE AO IN THE FOLLOWING TERMS: 3.1 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS THE FINDING OF THE ASSESSING OFFICER. THE APPELLANT IN THE STATEMENT OF FACTS HAD STATED THAT ASSESSEE'S FAMILY IS STAYING UNDER ONE ROOF AND ALL THE BROTHERS ARE IN JOINT FAMILY. THEIR LIVING STANDARD IS ALSO NORMAL AND AVERAGE. HE WAS ALSO STATED TO BE DERIVING AGRICULT URAL INCOME. THE ESTIMATED HOUSEHOLD EXPENSES ARE RANGING FROM RS.5 000/- TO RS.8 000/- PER MONTH. THESE ESTIMATED EXPENSES ARE NOT SUFFICI ENT ENOUGH TO MEET BOTH THE END FOR A FAMILY OF FIVE MEMBERS WHERE THR EE OF THE CHILDREN ARE SCHOOL GOING. THE ASSESSING OFFICER THUS WAS MORE T HAN REASONABLE IN ESTIMATING THE HOUSEHOLD EXPENSES. THE APPELLANT HA D SHOWN AGRICULTURAL INCOME BUT WHETHER THE INCOME IS CREDITED TO THE CA PITAL ACCOUNT OR ANY PART OF IT IS UTILIZED FOR HOUSEHOLD EXPENSES IS NO T COMING OUT FROM THE STATEMENT OF FACTS. NO BENEFIT THEREFORE GIVEN OUT OF THE AGRICULTURAL INCOME CONSIDERING THAT THE AGRICULTURAL INCOME IS CREDITED TO THE CAPITAL ACCOUNT. THE ASSESSING OFFICER WAS THUS JUSTIFIED I N MAKING THE ADDITION ON ACCOUNT OF LOW WITHDRAWALS FOR HOUSEHOLD EXPENSES F OR ALL THE FIVE YEARS UNDER CONSIDERATION. THE ONLY GROUND OF ALL THE FIV E APPEALS IS ACCORDINGLY DISMISSED. 4. LIKEWISE THE ASSESSEE SHRI MEHMOODBHAI PRITAMS INGH JAMADAR DISCLOSED FOLLOWING AMOUNT OF WITHDRAWALS FOR MEETI NG THE HOUSEHOLD EXPENDITURE :- IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 6 FINANCIAL YEAR JAMADAR TRAVELS JAMADAR BRICKS JAMADAR TRANSPORT CO. TOTAL 2000-01 21500 - 13570 35070 2001-02 27800 - - 27800 2002-03 28000 3700 - 31700 2003-04 60000 - - 60000 2004-05 60000 - - 60000 2005-06 95914 72000 - 167914 2006-07 465788 1000 - 466788 SINCE THE ASSESSEE ALONG WITH HIS WIFE HAD THREE SCHOOL GOING CHILDREN CONSIDERING THE STATUS AND STANDARD OF LIVING OF TH E ASSESSEE THE AO ESTIMATED FOLLOWING AMOUNTS TOWARDS HOUSEHOLD EXPENDITURE:- ASSTT. YEAR HOUSEHOLD WITHDRAWALS TOTAL WITHDRAWAL ADDITION 2001-02 72000 35070 36930 2002-03 78000 27800 50200 2003-04 84000 31700 52300 2004-05 90000 60000 30000 2005-06 96000 60000 36000 ACCORDINGLY ADDITION WAS MADE FOR THE DIFFERENCE I N EACH OF THE AFORESAID FIVE ASSESSMENT YEARS. 5. ON APPEAL NONE APPEARED ON BEHALF OF THE AS SESSEE DESPITE SUFFICIENT OPPORTUNITY ALLOWED BY THE LD. CIT(A) AS MENTIONED IN PARA 2 OF HIS ORDER AND INSTEAD ADJOURNMENTS WERE REQUES TED CONTINUALLY ON THE GROUND THAT THE DETAILS WERE UNDER PREPARATI ON. ACCORDINGLY THE LD. CIT(A) CONCLUDED THAT THE ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEALS AND UPHELD THE AFORESAID ADDIT ION MADE BY THE AO IN THE FOLLOWING TERMS: 3.1 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE AS WELL AS THE FINDING OF THE ASSESSING OFFICER THE APPELLANT IN THE STATEMENT OF FACTS HAD STATED THAT ASSESSEE'S FAMILY IS STAYING UNDER ONE ROOF AND ALL THE BROTHERS ARE IN JOINT FAMILY THEIR LIVING STANDARD IS ALSO NORMAL AND AVERAGE. HE WAS ALSO STATED TO BE DERIVING AGRICULT URAL INCOME. THE ESTIMATED HOUSEHOLD EXPANSES ARE RANGING FROM RS.5 000/- TO RS.8 000/- IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 7 PER MONTH. THESE ESTIMATED EXPENSES ARE NOT SUFFICI ENT ENOUGH TO MEET BOTH THE AND FOR A FAMILY OF FIVE MEMBERS WHERE TH REE OF THE CHILDREN ARE SCHOOL GOING. THE ASSESSING OFFICER THUS WAS MORE T HAN REASONABLE IN ESTIMATING THE HOUSEHOLD EXPENSES. FROM THE ASSESSM ENT ORDERS IT WAS NOTICED THAT NO AGRICULTURAL INCOME SHOWN IN ANY OF THE RETURNS. THUS THE APPELLANT IS NOT ENTITLED TO ANY BENEFIT FROM THE A GRICULTURAL INCOME FOR MEETING HOUSEHOLD EXPENSES. THE ASSESSING OFFICER W AS THUS JUSTIFIED IN MAKING THE ADDITION ON ACCOUNT OF LOW WITHDRAWALS F OR HOUSEHOLD EXPENSES FOR ALL THE FIVE YEARS UNDER CONSIDERATION. THE ONL Y GROUND OF ALL THE FIVE APPEALS IS ACCORDINGLY DISMISSED. 6 IN THE CASE OF M/S JAMADAR TRANSPORT IN THE AYS 2001-02 & 2002-03 THE AO NOTICED THAT OUT OF 70 VEHICLES I NVENTORISED AS PER ANNEXURE Q DURING THE SURVEY THE ASSESSEE REFLEC TED IN THE RETURN FOR THESE TWO ASSESSMENT YEARS ONLY 4 VEHICLES IN T HE BALANCE SHEET AND DECLARED NET PROFIT OF RS.2 543/- IN THE AY 200 1-02 AND RS.8 020/- IN THE AY 2002-03 ON THE BASIS OF THEI R BOOKS OF ACCOUNT. DURING THE COURSE OF ASSESSMENT PROCEEDING S THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF EXPEND ITURE CLAIMED. HOWEVER THE ASSESSEE DID NOT FURNISH THE DETAILS S OUGHT BY THE AO. ACCORDING TO THE AO A NUMBER OF IRREGULARITIES WER E NOTICED IN THE BOOKS OF ACCOUNT WHILE THE VOUCHERS FOR EXPENDITURE WERE ALSO NOT MAINTAINED. ACCORDINGLY THE AO WHILE REJECTING THE BOOK RESULTS IN TERMS OF PROVISIONS OF SECTION 145(3) OF THE ACT E STIMATED THE INCOME @ RS. 2000 PM FOR EACH OF THE FOUR VEHICLES AS PER PROV ISIONS OF SECTION 44AE OF THE ACT AND AFTER ALLOWING DEDUCTION U/S 40(B)(V) OF TH E ACT AND DETERMINED INCOME OF RS. 46 000/- IN THE AY 2001-02 & RS. 65 768/- IN TH E AY 2002-03. 6.1 IN THE AYS. 2004-05 TO 2007-08 THE AO N OTICED THAT OUT OF 70 VEHICLES INVENTORISED AS PER ANNEXURE Q DURING THE SURVEY THE ASSESSEE REFLECTED IN THE RETURN FOR THESE ASSESS MENT YEARS ONLY 8 VEHICLES IN THE BALANCE SHEET AND ACCORDINGLY DECL ARED INCOME IN TERMS OF PROVISIONS OF SEC. 44AE OF THE ACT . ON TH E BASIS OF DETAILS GATHERED DURING THE SEARCH/SURVEY THE AO NOTICED T HAT THE INVENTORY OF 70 VEHICLES INCLUDED VEHICLES LIKE SCO OTER TRACTORS ETC. IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 8 AND AS PER THE RTO RECORDS CERTAIN VEHICLES WER E NOT REGISTERED IN THE NAMES OF THE BUSINESS CONCERNS OF THE ASSES SEE GROUP OR THE FAMILY MEMBERS. SOME OF THE VEHICLES WERE REGIS TERED IN THE NAME OF ONE SHRI DOLATSINH K. JAMDAR. THE SON OF LA TE SHRI DOLATSINH K. JAMDAR I.E. AJAY ALIAS ANWAR ADMITTED TO BE SERVING WITH SHRI VIJESH JAMDAR AND DRAWING SALARY OF RS.30 00/- PER MONTH. HE REVEALED THAT HIS FATHER LATE SHRI DAULATSINGH J AMADAR EXPIRED IN JUNE 2005 AND EXPRESSED IGNORANCE REGARDING HIS SH ARE IN THE FIRM M/S JAMADAR TRANSPORT . BESIDES HE CONFIRMED THAT NO VEHICLE WAS OWNED BY HIM OR HIS DECEASED FATHER. SINCE CERTAIN VEHICLES WERE FOUND REGISTERED IN THE NAME OF LATE SHRI DOLATSINH K. JAMDAR WHILE HIS SON DENIED SO THE AO REQUESTED THE ASSESSEE TO FURNISH A COMPLETE LIST OF ALL THE OWNERS OF 70 VEHICLES AS L ISTED IN INVENTORY Q WITH THEIR POSTAL ADDRESSES TELEPHONE NUMBERS AND CONFIRMATIONS REGARDING THEIR OWNERSHIP OF THE VEHICLE VIS-A-VIS THEIR PAN. SIMILAR INFORMATION WAS ASKED FOR IN THE ASSESSMENT OF M/S JAMADAR TRAVELS WHEREIN THE ASSESSEE SUBMITTED DETAILS R EGARDING 70 VEHICLES INVENTORISED AS PER ANNEXURE Q VIDE LETTER DATED 28/11/2008 . THESE DETAILS REVEALED THAT THE ASSESS EE BEFORE US M/S JAMADAR TRANSPORT HAD 10 VEHICLES THOUGH THE NAME OF THE ALLEGED OWNER VARIED. THE RELEVANT PORTION OF THE D ETAILS EXTRACTED IN THE ASSESSMENT ORDERS IS REPRODUCED HEREUNDER;- SR. NO. NAME OF THE OWNER VEHICLE NO. VEHICLE TYPE REMARK 1 MEHMOOD P. JAMADAR GJ-16-C-1892 TATA SUMO JAMADAR TRANSPORT 2 JAMADAR TRANSPORT GJ-16-T-8383 TRUCK JAMADAR TRANSPORT 3 DOLATSINGH K. JAMADAR GRV-6472 TRUCK JAMADAR TRANSPORT 4 VIJESH P. JAMADAR GJ-16-V-3388 TRUCK JAMADAR TRANSPORT IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 9 5 VIJESH P. JAMADAR GJ-16-V-3434 TRUCK JAMADAR TRANSPORT 6 VIJESH P JAMADAR GJ-16-V-4433 TRUCK JAMADAR RANSPORT 7 VIJESH P. JAMADAR GJ-16-AA-8833 MARUTI ZEN JAMADAR TRANSPORT 8 V.P. JAMADAR GJ-5-CG-7892 INNOVA JAMADAR TRANSPORT 9 JAMADAR TRANSPORT .' GTK-3119 BUS JAMADAR TRANSPORT 10 MEHMOOD P. JAMAD; GJ-16-U-6471 TRUCK JAMADAR TRANSPORT 11 DOLATSINGH K. JAMADAR GJ-16-V-4647 TRUCK JAMADAR TRANSPORT 12 DOLATSINGH K. JAMADAR GUD-5869 MARUTI OMNI JAMADAR TRANSPORT 13 VIJESH P. JAMADAR GJ-16-V-3399 DUMPER JAMADAR TRANSPORT 14 VIJESH P JAMADAR GJ-16-X-9944 TRUCK JAMADAR TRANSPORT 15 VIJESH P. JAMADAR GJ-6-BA-7892 TOYOTO QUALIS JAMADAR TRANSPORT 16 V.P. JAMADAR GJ-5-CF-7892 SCORPIO JAMADAR TRANSPORT 17 V.P. JAMADAR GJ-6-BL-7892 TOYOTO INNOVA JAMADAR TRANSPORT 6.2 ON THE BASIS OF AFORESAID DETAILS THE AO FOUND THAT 1 DUMPER 8 TRUCKS & 1 BUS WERE BEING OPERATED BY THE ASSESSEE FOR THEIR BUSINESS PURPOSES. THE AO ALSO NOTICED THAT ONLY T WO VEHICLES WERE REGISTERED IN THE NAME OF M/S JAMADAR TRANSPORT WHILE OTHER 8 VEHICLES WERE REGISTERED IN THE NAME OF S/SHRI VIJESH P JAMADAR DAULATSINGH K JAMADAR AND MEHMOOD P JAMADAR. BESIDES 1 TATA SUMO 1 MARUTI ZEN 1 INNO VA 1 MARUTI OMNI 1 TOYOTA QUALIS AND 1 SCORPIO WERE ALSO UNDER OPERATION OF T HE ASSESSEE. ON THE BASIS OF THESE FACTS THE AO CONCLUDED THAT THE ASSESSEE'S B USINESS IS THAT OF A TRANSPORTER. SINCE IN THE DETAILS GIVEN THERE WERE VERY FEW PERSONAL CARS / IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 10 VEHICLES BEING SHOWN CONSIDERING THE SIZE OF THE F AMILY MEMBERS THE PERSONAL VEHICLES WERE NOT CONSIDERED BY THE AO AS BEING OPE RATED FOR THE BUSINESS PURPOSES OF THE ASSESSEE THE REGISTRATION NUMBER O F THESE VEHICLES REFLECTING NON-COMMERCIAL REGISTRATION. SINCE THE ASSESSEE HA D NOT SHOWN ANY INCOME FROM OPERATION OF TWO VEHICLES IN THE RETURNS WHI LE SEIZED DOCUMENTS PAGE NO.132 & 135 OF ANNEXURE A/16 REFLECTED THE NET P ROFIT OF M/S JAMADAR TRANSPORT CO. FOR THE F.YS.2003-04 & 2004-05 AT RS .2 93 092/- EACH WITH THE OPERATION OF 10 VEHICLES AS AGAINST INCOME OF ONLY RS.92 940/- FROM ONLY 8 VEHICLES DECLARED IN THE RETURN FOR THE AY 2004-05 & A.Y.2005-06 AFTER CLAIMING DEDUCTION U/S 40(B)(V) AS PER PROVISIONS OF SECTION 44AE(3)] OF THE ACT THE AO ESTIMATED THE INCOME OF THE ASSESSEE AS PER SUB-CL AUSE (I) OF SUB-SECTION (2) OF SECTION 44AE FROM THE AFORESAID 10 VEHICLES THE AS SESSEE HAVING NOT EXPLAINED THE DISCREPANCY. ACCORDINGLY INCOME WAS DETERMINED AT RS.1 76 940/- IN THE AY 2004-05 AFTER ALLOWING DEDUCTION U/S 40(B)(V) RESUL TING IN ADDITION OF RS 84 000/- (I.E.RS.1 76 940 - 92940) IN EACH OF THE AYS. 2004 -05 TO 2006-07 & RS. 63 000 IN THE AY 2007-08. AS A RESULT TOTAL INCOME WAS DE TERMINED AT RS. 2 70 540/-RS.2 70 540/- RS.4 20 000/-AND RS.4 20 00 0/- RESPECTIVELY FOR THESE FOUR AYS 2004-05 TO 2007-08. 7. ON APPEAL NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SUFFICIENT OPPORTUNITY ALLOWED BY THE LD. CIT(A) AS MENTIONED IN PARA 2 OF THE IMPUGNED ORDER AND INSTEAD ADJOURNMENTS W ERE REQUESTED CONTINUALLY ON THE GROUND THAT THE DETAILS WERE UND ER PREPARATION. ACCORDINGLY THE LD. CIT(A) CONCLUDED THAT THE ASSE SSEE WAS NOT INTERESTED IN PURSUING THE APPEALS AND UPHELD THE A FORESAID ADDITION MADE BY THE AO IN THE FOLLOWING TERMS: 3.1 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASES AND ALSO THE FINDINGS GIVEN IN THE RESPECTIVE ORDERS. AS FAR AS THE A.Y. 2001 R02 AND A.Y; 2002-03 ARE CONCERNED THE GROSS RECEIPTS WERE BELOW THE LIMIT PRESCRIBED U/S 44AA OF THE ACT AND BOOKS OF ACCOUNT WERE NOT AUDITED THEREFORE THE ASSESSING OFFICER WAS ABSOLUTELY JUS TIFIED IN ASSESSING THE INCOME U/S 44AE OF THE ACT. EVEN THE REJECTION OF B OOKS' OF ACCOUNT IS NOT REQUIRED. THE ISSUE RAISED IN THE APPEALS FOR THE A .Y. 2001-02 AND A.Y. 2002-03 IS THEREBY DISMISSED AND THE FINDING OF THE ASSESSING OFFICER IS SUSTAINED. AS FAR AS THE ISSUE RAISED IN THE OTHER FOUR APPEALS FOR THE AY IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 11 2004-05 TO THE A.Y. 2007-08 THE ASSESSING OFFICER HAD COME TO THE CONCLUSION ON THE BASIS' OF ENTRIES RECORDED IN PAG E-131 AND PAGE-135 OF ANNEXURE- A/16 THAT THE APPELLANT HAD SHOWN THE NOT PROFIT BY OPERATING 10 VEHICLES. THE APPELLANT WAS NOT MAINTAINING BOOKS O F ACCOUNT THEREFORE THERE IS NO QUESTION OF AUDIT OF ACCOUNTS. THE ASSE SSING OFFICER HAD ASSESSED THE INCOME OF THE APPELLANT U/S 44AE OF TH E ACT IN VIEW OF THE PROVISIONS OF SEC. 44AE(7) OF THE ACT. SINCE THE I NCOME SHOWN IN THE AFORESAID SEIZED PAPERS WAS-LESS THEN AS ASSESSABLE U/S 44AE THEREFORE THE INCOME WAS ASSESSED U/S 44AE OF THE ACT. THE AP PELLANT IN THE STATEMENT OF FACTS HAD STATED THAT TWO VEHICLES NUM BERING GRV-6472 AND GJ-16-U 6471 WERE NOT USED FOR THE BUSINESS. THIS C ONTENTION OF THE APPELLANT IS CONTRARY TO THE SEIZED DOCUMENTS AT PA GE-131 AND PAGE-135 OF ANNEXURE- A/16 WHEREIN NET PROFIT HAD BEEN SHOWN BY OPERATING 10 VEHICLES. THE ASSESSING OFFICER AFTER SCRUTINY OF T HE LIST OF VEHICLE CAME TO THE DEFINITE FINDING THAT THE APPELLANT HAD USED 8 TRUCKS 1 DUMPER AND 1 BUS TOTAL 10 VEHICLES FOR ITS BUSINESS AND THE SAME WAS CORROBORATED BY THE ENTRIES RECORDED IN THE AFORESAID SEIZED DOCUME NTS. CONSIDERING THE DETAIL FINDING OF THE ASSESSING OFFICER I AM OF TH E OPINION THAT THE APPELLANT HAD USED 10 VEHICLES IN ITS BUSINESS FOR ALL THE FOUR YEARS AND THEREFORE THE ASSESSING OFFICER WAS JUSTIFIED IN A SSESSING THE INCOME OF 10 VEHICLES U/S 44AE OF THE ACT FOR THE A.Y. 2004-0 5 A.Y. 2005-06 A.Y. 2006-07 AND A.Y 2007-08. THE FINDING OF THE ASSESS ING OFFICER FOR ALL THESE FOUR YEARS IS THEREBY SUSTAINED AND THE ADDIT IONS MADE IN RESPECTIVE YEARS ARE CONFIRMED. THE ISSUE RAISED BY THE APPELL ANT IN THESE FOUR APPEALS IS ALSO DISMISSED. 8. THESE THREE ASSESSEES ARE NOW IN APPEAL AGAINS T THE AFORESAID FINDINGS OF THE LD. CIT(A) MENTIONED IN PARA 3 5 & 7 ABOVE. AT THE OUTSET THE LD. AR ON BEHALF OF THE ASSESSEE CONTEN DED THAT THE LD. CIT(A) HAVE NOT ALLOWED SUFFICIENT OPPORTUNITY TO T HESE ASSESSEES NOR THEY COULD MAKE ANY SUBMISSIONS BEFORE HIM AND THEREFORE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE LD. CIT(A). ON THE OTHER HAND THE LD. DR VEHEMENTLY OPPOSED THESE SUBMISSIO NS ON BEHALF OF THE ASSESSEES WHILE INVITING OUR ATTENTION TO PARA 2 O F EACH OF THE IMPUGNED ORDERS AND SUBMITTED THAT WHEN THESE ASSESSEES THEMSELVES WENT ON SEEKING ADJOURNMENTS ON THE GROUND THAT DETAILS WERE UNDER PREPARATION AND DID NOT ATTEND THE LAST HEARING BEFORE THE LD. CIT(A) NOR M ADE ANY SUBMISSIONS THE LATTER HAD NO ALTERNATIVE BUT TO DECIDE THE APPEALS ON THE BASIS OF FACTS BEFORE HIM. THEREFORE NO FURTHER OPPORTUNITY IS REQUIRED TO BE PROVIDED TO THESE ASSESSEES. IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 12 9. WE HAVE HEARD BOTH THE PARTIES AND GONE TH ROUGH THE FACTS OF THE CASE. THE CONTENTION ON BEHALF OF THESE THREE ASSESSEES THAT SUFFICIENT OPPORTUNITY WAS NOT PROVIDED BY THE LD. CIT(A) IS BASELESS AND DEVOID OF MERIT AS IS EVIDENT FROM THE FOLLOWI NG UNDISPUTED FINDINGS OF THE LD. CIT(A) IN PARA 2 OF EACH OF THE IMPUGNED ORDERS: 2.0 THESE APPEALS WERE FILED ON 27-01-2009. THE AP PEALS WERE FIXED TO BE HEARD BY MY PREDECESSOR ON 28-04-2009 VIDE NOTIC E DATED 27-03-2009. THE APPELLANT HAD SOUGHT ADJOURNMENT VIDE HIS APPLI CATION DATED 24-04- 2009 RECEIVED ON 27-04-2009 ON THE GROUND THAT THE DETAILS ARE UNDER PREPARATION AND THE ACCOUNTANT IS NOT AVAILABLE DUR ING THIS PERIOD. THE APPEALS WERE AGAIN FIXED TO BE HEARD ON 08-10-2009. NO RESPONSE WAS MADE. THE APPEALS WERE AGAIN FIXED TO BE HEARD ON 2 .-12-2009 VIDE ISSUE OF NOTICES DATED 14-12-2009. THE APPELLANT AGAIN SO UGHT ADJOURNMENT VIDE HIS. APPLICATION DATED 19-12-2009 RECEIVED ON 21-12 -2009 ON THE SAME GROUND THAT THE DETAILS ARE UNDER PREPARATION AND T HE ACCOUNTANT IS NOT AVAILABLE DURING THIS PERIOD. A LETTER WAS WRITTEN TO THE ASSESSEE ON 23-12- 2009 INTIMATING THAT THE APPELLANT IS NOT INTEREST IN PROSECUTING ITS APPEALS AND FILING ADJOURNMENT FOR AVOIDING HEARING. HE(THE APPELLANT) WAS INFORMED THAT IT IS NOT POSSIBLE TO BELIEVE THAT TH E PREPARATIONS OF DETAILS STARTED IN THE MONTH OF APRIL 2009 ARE STILL GOING ON AND THE ACCOUNTANT IS STILL NOT AVAILABLE DURING THE PERIOD. HE(THE APPEL LANT) WAS SPECIFICALLY INFORMED THAT THE APPEALS WILL BE DECIDED ON MERITS IF NOT REPRESENTED ON 31-12-2009. AS USUAL THE APPELLANT HAD AGAIN SOUGH T ADJOURNMENT VIDE HIS APPLICATION DATED 30-12-2009 RECEIVED ON 31-12- 2009 ON THE SAME GROUND THAT THE DETAILS ARE UNDER PREPARATION AND T HE ACCOUNTANT IS NOT AVAILABLE DURING THIS PERIOD. THOUGH I HAVE INFORM ED THE APPELLANT TO DECIDE THE APPEAL ON MERITS VIDE LETTER DATED 23-12 -2009 BUT STILL I HAVE DECIDED TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSE E. THUS THE LAST OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLA NT VIDE LETTER DATED 04- 01-2010 AND HE(THE APPELLANT) WAS INFORMED TO REPRE SENT HIS(ITS). APPEALS ON 22-01-2010. NEITHER THE APPELLANT ATTENDED ON 2 2-01-2010 NOR ANY APPLICATION OF ADJOURNMENT WAS FILED. IT IS NOW CON FIRMED THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING ITS APPEALS AND WI LL NOT REPRESENT ITS APPEALS. THESE ARE .VERY SMALL APPEALS HAVING MEAGR E DEMANDS AND THERE IS NO REASON TO KEEP THEM PENDING FOR THE MER CY OF THE APPELLANT I HAVE THEREFORE DECIDED TO DISPOSE OFF ALL THESE FI VE(SIX IN THE CASE OF M/S JAMADAR TRANSPORT) APPEALS ON MERIT. 9.1 IN THE LIGHT OF AFORESAID FINDINGS OF THE LD . CIT(A) IN EACH OF THESE APPEALS ESPECIALLY WHEN EVEN THE DETAILS WHI CH WERE UNDER PREPARATION AS CONTENDED BEFORE THE LD. CIT(A) HAV E NOT BEEN FILED BEFORE US WE DO NOT FIND ANY MERIT IN THE PLEA ON BEHALF OF THESE ASSESSEES THAT SUFFICIENT OPPORTUNITY WAS NOT ALLOW ED BY THE LD. IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 13 CIT(A). THEREFORE GROUND NO.1 IN EACH OF THESE SIX TEEN APPEALS IS DISMISSED. . 10. NOW COMING TO THE FACTS OF THE CASE WE FI ND THAT THE AO MADE THE ADDITION ON ACCOUNT OF HOUSEHOLD EXPENSES IN THE CASE OF INDIVIDUALS ON THE GROUND THAT ANNUAL WITHDRAWALS S HOWN BY THE RESPECTIVE ASSESSEES FROM M/S JAMADAR TRAVELS M/S JAMADAR BRICKS & M/S JAMADAR TRANSPORT CO. WERE NOT SUFFICI ENT FOR MEETING THE HOUSEHOLD EXPENSES. HOWEVER NEITHER THE DATE N OR EVEN THE MONTH OF WITHDRAWAL OR EVEN PURPOSE OF WITHDRAWAL I S EVIDENT FROM THE RESPECTIVE ASSESSMENT ORDERS. IT IS ALSO NOT KN OWN AS TO WHETHER THESE WITHDRAWALS WERE FOR FEES OF EACH OF THE THRE E SCHOOL GOING CHILDREN OR WERE FOR PAYMENT OF ELECTRICITY OR PERS ONAL TELEPHONE BILLS OR FOR CONVEYANCE EXPENSES OR FOR NORMAL FOOD MILK ETC./CLOTHING OR FOR ANY OTHER EXPENDITURE. EVEN THE DETAILS OF M ONTHLY/ANNUAL FEES OF THE CHILDREN ELECTRICITY TELEPHONE/MOBILE OR C ONVEYANCE EXPENSES AND FOOD/MILK/CLOTHING EXPENSES DO NOT FIN D MENTION IN THE IMPUGNED ORDERS. IN THE CASE OF M/S JAMADAR TRANSPO RT THE AO MENTIONED ABOUT CERTAIN IRREGULARITIES IN THE BOOKS OF ACCOUNTS IN THE AYS. 2001-02 & 2002-03 AS A RESULT OF WHICH BOOKS O F ACCOUNTS WERE REJECTED. THE NATURE OF THESE IRREGULARITIES ARE N OT EVIDENT FROM THE IMPUGNED ORDERS NOR THE LD. DR THREW ANY LIGHT ON T HESE ASPECTS. THE DETAILS OF RELEVANT EXPENSES HAS ALSO NOT BEEN BROUGHT TO OUR NOTICE. EVEN THE RELEVANT SEIZED DOCUMENTS PAGE 132 AND 135 OF ANNEXURE A-16 REFERRED TO IN THE IMPUGNED ORDERS FO R THE AY 2004- 05 TO 2007-08 IN THE CASE OF M/S JAMADAR TRANSPORT WERE NOT PLACED BEFORE US EITHER BY THE LD. AR ON BEHALF OF THE ASS ESSEE OR EVEN THE LD. DR NOR IT WAS CLARIFIED AS TO WHO MET THE EXPE NSE ON CERTAIN CARS/VEHICLES NAMELY 1 TATA SUMO 1 MARUTI ZEN 1 I NNOVA 1 MARUTI OMNI 1 TOYOTA QUALIS AND 1 SCORPIO ATTRIBUTED BY THE AO F OR PERSONAL USE OF FAMILY MEMBERS AND NOT FOR THE PURPOSE OF BUSINESS OF THE FIRM. IN NUTSHELL THE COMPLETE FACTS ARE NOT EVIDENT FROM T HE IMPUGNED IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 14 ORDERS IN THESE CASES NOR WERE CLARIFIED BEFORE US . IN THESE CIRCUMSTANCES IN THE INTEREST OF JUSTICE AND FAIR PLAY WE CONSIDER IT FAIR AND APPROPRIATE TO SET ASIDE THE ORDER OF THE LD. C IT(A) AND RESTORE THE MATTER TO HIS FILE FOR DECIDING THE ISSUES RAISED IN GROUND NOS. 2 & 3 IN EACH OF THE FIVE APPEALS IN THE CASE OF TWO INDIVIDUALS AND IN THE APPEALS FOR THE AY 2001-02 & 2002-03 IN THE CASE OF FIRM AS ALSO GROUND NOS. 2 TO 4 IN THE APPEALS OF THE FIRM FOR THE AYS. 2004-05 TO 2006-07 AFRESH IN ACCORDAN CE WITH LAW IN THE LIGHT OF OUR AFORESAID OBSERVATIONS AND OF COURSE AFTER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES. THE LD. CIT(A) IS FREE TO UNDERTAKE AN Y INDEPENDENT ENQUIRES IF FOUND NECESSARY AND THEREAFTER MAY PASS SUCH ORDER S AS HE DEEMS PROPER IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A) SO THAT MATTER I S EXPEDITIOUSLY DISPOSED OF. WITH THESE OBSERVATIONS GROUND NOS. 2 & 3 IN EACH OF THE FIVE APPEALS IN THE CASE OF TWO INDIVIDUALS AND IN THE APPEALS FOR THE AY 2001-02 & 2002-03 IN THE CASE OF FIRM AS ALSO GROUND NOS. 2 TO 4 IN THE APP EAL OF THE FIRM FOR THE AYS. 2004-05 TO 2006-07 ARE DISPOSED OF. 11. NO ADDITIONAL GROUND HAVING BEEN RAISED IN TERMS OF RESIDUARY GROUND NO 4 IN ALL THE APPEALS IN THE CASE OF TWO INDIVIDUALS AND IN THE APPEAL OF THE FIRM FOR THE AY 2001-02 & 2002-03 OR GROUND NO. 5 IN THE APPEALS OF THE FIRM FOR THE AYS. 2004-05 TO 2007-08 THESE GROUNDS ARE DISMISSED. 12. IN THE RESULT THESE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2-07-2010 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 2-07-2010 COPY OF THE ORDER FORWARDED TO: IT(S)A NO.283 TO 297 &1067/AHD/2010 SHRI BABUBHAI PRITAMSINGH JAMADAR AND OTHERS 15 1 I)SHRI BABUBHAI PRITAMSINGH JAMADAR II)SHRI MEHMO ODBHAI PRITAMSINGH JAMADAR &III) M/S JAMADAR TRANSPORT DANDIA BAZAR BHARUCH 2 THE ACIT CENTRAL CIRCLE-2 BARODA 3 CIT CONCERNED 4 CIT(A)-IV AHMEDABAD 5 THE DR BENCH-B ITAT AHMEDABAD 6 GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD