IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "E", NEW DELHI
BEFORE SHRI G.D. AGRAWAL, HON'BLE PRESIDENT
AND
SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER
I.T.A. Nos. 4557 & 4558/DEL/2016
A.Yrs. : 2009-10 & 2010-11
NARENDER SINGH, ITO, WARD 35(3),
A-458, SHASTRI VS. NEW DELHI
NAGAR, 809, E-2 BLOCK, CIVIC
DELHI 110 052 CENTRE,
(PAN:- AIIPS1725Q) NEW DELHI
(APPELLANT) (RESPONDENT)
Assessee by : Sh. M.P. Rastogi
Department : Ms. Rashmita Jha, Sr. DR.
by
Date of Hearing : 26.09.2018
Date of Order : 03-10-2018
ORDER
PER BENCH
These appeals filed by the Assessee challenging the
separate Orders both dated 28.6.2016 in Appeal Nos. 15 &
16/13-14 for assessment years 2009-10 & 2010-11
respectively passed by the Ld. Commissioner of Income Tax
(Appeals)-12, New Delhi (in Short "Ld. CIT(A)").
2. The grounds raised in both the appeals are similar,
except the change in figure. Therefore, we are only
1
reproducing the ground of ITA No. 4557/Del/2016 assessment
year 2009-10 as under:-
1.1 That learned CIT [A] has erred in not quashing the
proceedings initiated and the assessment order u/s 144
passed in consequence despite the learned LD. AO
confirming in Remand report confirming that notices
issued were returned un-served and the LD. AO not
establishing service of notices on the assessee
1.2 That learned CIT [A] has erred in not quashing the
proceedings initiated and the assessment order u/s 144
despite fact that the learned LD. AO has not made any
efforts to serve the notices on the assessee as provided
by Law
2 That learned CIT [A] has erred in determining the
taxable income at Rs3,12,223 taken at 10% of gross
receipts, (including capital receipts like sale proceeds of
old trucks and LIC Maturity) instead of the applicable
presumptive rate of income in terms of section 44AE of
the Act as the assessee is engaged in carriage of
goods, (truck operator) having less than 10 trucks.
3. That learned CIT [A] has erred in not giving
directions for grant of deductions of Chapter VIA of the
Act
4. The above grounds are independent and without
prejudice to each other.
5. The appellant seeks leave to add, amend, alter or
abandon any of the above grounds at the time of
hearing of the appeal.
3. Since the issue involved in these appeals are common
and therefore, the appeal were heard together and disposed
of by this common order for the sake of convenience and
brevity, by dealing with ITA No. 4557/Del/2016 (AY 2009-10).
4. Brief facts of the case are that basing on the AIR
information the LD. AO issued notice u/s. 148 of the Act on
6.1.2012 and subsequently notice u/s. 142(1) of the Act on
2
several occasions. Since the assessee never responded to
such notices, LD. AO recorded that he was left with no
alternative, but to complete the assessment ex parte u/s. 144
of the Act on the basis of the material available on record.
Ld. AO perused the bank statement of the assessee and
found that there was cash deposits to the tune of Rs.
17,86,885/- and since there was no explanation from the
assessee in respect of these deposits, Ld. AO treated it as
unexplained cash deposits and added it to the income of the
assessee. So also basing on the AIR information and Form
26AS, Ld. AO found that there were 59 entries relating to
TDS, but none of the entry could be found in the bank
statement as such he added a sum of Rs. 14,38,936/-
relatable to TDS of Rs. 28,276/-.
5. Ld.. CIT(A) confirmed the action of the Ld. AO in
considering the bank deposits and also the receipts in respect
of which TDS of Rs. 28,276/- was shown in the Form No. 26S,
but however, treating this amount as the total turnover of the
assessee, Ld.. CIT(A) estimated the net profit of the assessee
at 10% and confirmed the addition to the tune of Rs.
3,12,223/- and deleted the balance of Rs. 2913598/-. So also
in respect of the TDS, Ld.. CIT(A) directed the Ld. AO to give
credit of Rs. 28,276/-, after verification of the claim of the
assessee. Challenging the action of the Ld.. CIT(A) in
sustaining the addition of Rs. 3,12,223/-, the assessee is in
appeal before us.
6. On a careful perusal of the record, we find that there is
no denial of the fact that assessee do not appear before the
3
Ld. AO thereby forcing the Ld. AO to complete the assessment
ex parte u/s. 144 of the Act basing on the material available
on record, and more specifically the assessee never thought it
necessary to file the return of income when the TDS was
made and did not respond to the notices issued by the Ld. AO.
Though the Ld. AO treated the entire cash deposits in the
bank and also the amount relatable to the TDS to be treated
as income, Ld. CIT(A) had treated it as the total turnover of
the assessee and estimated the income of the assessee only
10% thereof and sustained the addition only to the extent of
Rs. 3,12,223/- to be brought to tax. We do not find any
illegality or irregularity in the findings recorded by the Ld.
CIT(A) in para no. 9.8 of his order. The impugned order does
not suffer any illegality or irregularity. Further, Ld. CIT(A)
directed the Ld. AO to give credit to the TDS amount on
verification. We are, therefore, of the considered opinion that
there is not much to interfere with the order of the Ld. CIT(A).
7. However, it is submitted on behalf of the assessee that
in determining the taxable income at 10% of the gross
receipt, Ld. CIT(A) failed to take into consideration the capital
receipt in the nature of LIC maturity and it is prayed that Ld.
AO may be directed to consider the LIC maturity amount to
be excluded from the gross receipts. We find reasons in this
submissions advanced on behalf of the Assessee and
therefore, directed the Ld. AO to exclude the LIC maturity
amount while considering the gross receipts on which 10% is
determined as income of the assessee. Subject to this
observation, we do not find any reasons to interfere with the
impugned order, hence, we uphold the same.
4
8. As regard the ITA No. 4558/Del/2016 (AY 2010-11), for
the reasons given in the preceding paragraphs for the
assessment year 2009-10, while confirming the impugned
order, we direct the Ld. AO to consider the LIC maturity
amount while determining the gross receipts 10% of which
are treated as income of the assessee.
9. In the result, both the Appeals filed by the Assessee
stand allowed in part.
Order pronounced in the Open Court on 03/10/2018.
Sd/- Sd/-
[G.D. AGRAWAL] [K.NARASIMHA CHARY]
PRESIDENT JUDICIAL MEMBER
Date 03/10/2018
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
5
6
|
