TMI Blog2015 (8) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... OAZ, JJ. For The Appellant : Shri G. Venkatesh, Advocate For The Respondent : Shri P. Dhivahar, Jt. CIT(DR) ORDER Per N.V. Vasudevan, Judicial Member These miscellaneous petitions are filed by the assessee seeking to rectify certain mistakes apparent on the face of the common order dated 14.8.2014 passed in ITA Nos. 829, 830 852/B/2012 as well as CO No.24/Bang/2013. 2. The Tribunal disposed of the group of appeals by the aforesaid common order pertaining to the following appeals against the common order of the CIT(Appeals)-VI, Bangalore dated 16.3.2012:- (a) ITA 849/12 (Revenue s appeal) and CO 23/13 by the assessee for A.Y. 2004-05; (b) ITA Nos. 829 830/12 (assessee s appeals) and 850 851/12 (Revenue s appeals) for A.Ys. 2005-06 2006-07; and (c) ITA Nos.852 to 854/12 (Revenue s appeals) and CO Nos.24 to 26/13 for AYs 2007-08 to 2009-10 by the assessee. 3. The assessee is an individual. He is a contractor carrying out contract work on behalf of others. For the A.Ys. 2004-05 to 2009-10, the assessee filed returns of income u/s. 139(1) of the Income Tax Act, 1961 (Act) declaring the following income:- A.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this effect. So far past two project the materials were also purchased by me and the contract work was completed by me only. Sri.Chowta made the entire payments to me only and I in turn made payments to the material suppliers. This method was followed since Sri.Chowta did not have sales tax registration at that time. However, for the other project cement steel were purchased and supplied by Sri.Ashok Kumar Chowta. These purchases were made in his own name. But purchase of materials like laterite, stone, blue metal, sand etc., were made in my name and cash payments were made for these purchasers. I was doing only the civil works for Sri.Ashok Kumar s projects. For two projects, Royal Park and Concord, I have done wood work for the window shutters. The plumbing, electrical, flooring works etc., were not done by me. Q.No.14: How was Sri.Ashok Kumar Chowta making payments to you, in cheque or any other mode? Ans: For the purchase of materials like cement steel and also towards the labour charges, charges payable to me, Sri.Chowta was making payments in cheque. Sri.Chowta was making cash payments for purchase of materials like laterite stone, blue metal etc., and was posti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f all materials and labour charges, but excluding the cost of steel. As per the oral agreement between me and Sri.Ashok Kumar Chowta, he is required to supply steel and I am required to procure all other materials including cement, laterite stone, blue metal, centering sheet, sand etc., and construct the building. This is the reason for Sri.Chowta booking the payments made to the suppliers of above materials against my name in his books of accounts. 6. The Assessee stated that the suppliers of materials referred to in answer to Q.No.15 did not issue any bills to the Assessee nor has he accounted for such materials nor does he know whether the suppliers issued bills to Sri.Ashok Kumar Chowta. Q.NO.25, 27 to 29 36 and answers thereto are also important and they are reproduced as below: Q.25: What are the cash payments made for by Sri Ashok Kumar Chowta and booked against your name, as stated by you? Ans: As far as I understand the above payments are made for purchase of laterite stone, blue metal, sand and for the charges centering poles and centering sheets. Sometimes when work is required to be completed urgently, Sri Chowta employees, labourers directly and makes paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in the income that you already offered for assessment and that is actually received including the cash receipts from Sri Ashok Kumar Chowta. Please tell me how much cash you had actually received from Sri Ashok Kumar Chowta during the relevant previous years. Ans: I have verified the returns of income filed by me for the earlier Asst. years and compared it with the regular books of accounts I maintained for the relevant accounting periods. I have also scrutinized the relevant portions of the diaries of Sri Ashok Kumar Chowta, which you had seized from his residence during the course of the search in his case. It is seen from the above scrutiny that the following cash receipts have not been included in the gross contract receipts disclosed in my returns of income for the relevant Asst. Years. FINANCIALYEAR PAYMENTS (Rs.) 2003-04 17,80,000 2004-05 1,27,35,005 2005-06 28,05,000 2006-07 60,26,250 2007-08 27,00,000 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the contract amounts due to me. I have not physically paid any cash to Sri. Ashok Kumar Chowta for the acquisition of the assets mentioned above. Considering all the above facts and circumstances and also with the sole intention of purchasing peace with the department and to avoid protracted legal proceedings, I offer taxable income at 8% of the Gross Contract receipts including the contract receipts in cheque and cash mentioned above, as given below: Fin. Year Asst. Year Contract Receipts already offered in R/I Rs. Cash Receipts Rs. Gross Contract Receipts Rs. 8% of the Gross Receipts Rs. 2003-04 2004-05 18,33,579 17,80,000 36,13,579 2,89,086 2004-05 2005-06 3,17,64,494 1,27,35,005 4,44,99,499 35,59,960 2005-06 2006-07 3,08,69,877 28,05,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional contract receipts as income for the various assessment years. As stated in the statement recorded the assessee did not in file return of income offering additional income. 11. The AO therefore issued notice u/s. 148 of the Act on 26.3.2010 for assessment years 2004-05 to 2008-09. For the A.Y. 2009-10, notice u/s. 143(2) was issued because for the said assessment year, assessment was not completed u/s. 143(3) of the Act by then. In response to the said notices u/s.148 of the Act, the Assessee filed returns of income in which the Assessee declared the same income as was declared in the original return of income filed. For AY 2009-10 the Assessee did not declare any additional income on account of entries found in the diary seized in the search of Mr.Ashok Kumar Chowta. 12. In the appeals filed before the Tribunal in concise grounds No.4 to 6 in all the assessment years, the assessee had challenged the estimation of 8% of the contract receipts as disclosed in the books of account of the assessee. The relevant concise grounds in this regard are as under:- 4. The learned Commissioner (Appeals) is not justified in upholding the action of the learned Assessing Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. We have considered this argument of the learned DR. We have also perused the orders of assessment passed in the case of Ashok Kumar Chowta for the A. Ys. 2005-06 to 2007-08, which is placed at pages 145 to 167 of the assessee's paper book. We find that there is no break up of the amounts brought to tax in the case of Ashok Kumar Chowta. It is therefore not possible to ascertain as to whether the entries found in the seized diary pertaining to the assessee were also part of the undisclosed income by Ashok Kumar Chowta. Further it is also not clear as to whether undisclosed income is on account of undisclosed expenditure of Ashok Kumar Chowta. If it is unexplained expenditure offered as income by Ashok Kumar Chowta then that would support the plea of the assessee taken in the assessment proceedings that cash payments recorded in the seized diary were used to procure materials for Ashok Kumar Chowta by the assessee and not for execution of any contract work. Even in this aspect there has been no attempt made by the Assessing Officer to correlate the income offered by Ashok Kumar Chowta with unaccounted contract receipts of the assessee as recorded in the seized diary. 38. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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