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Assistant Commissioner of Income Tax Versus Ganga Singh, Prop. M/s Vrindavan Construction And Vice-Versa

2016 (8) TMI 868 - ITAT JAIPUR

Reopening of assessment - non deduction of tds - Held that:- The original assessment was completed U/s 143(3) of the Act on 13/12/2007. Notice U/s 148 of the Act was issued on 25/3/2011 for A.Y. 2005-06, which is after four years from the end of the assessment year. As the assessee has disclosed all the particulars of income in the return as well as audit report and there is no failure on the part of the assessee in disclosing full and true all material facts necessary for his assessment in the .....

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venue’s appeals for the A.Y. 2005-06 is dismissed. - Trading addition - Held that:- The assessee has not challenged the rejection of books of account before the ld CIT(A) and also before us, therefore, it is admitted fact that the assessee’s books are not reliable. In past, the assessee in A.Y. 2007-08 has been disclosed NP rate @ 7.17% on turnover of ₹ 5.7 crores. In A.Y. 2008- 09, the assessee has disclosed NP rate @ 6.13% on turnover of ₹ 10.00 crores. Now turnover has gone up .....

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at:- It is undisputed fact that in liquor business, the assessee has shown positive income in A.Y. 2007-08 and 2008-09. However, in A.Y. 2009-10, the assessee had disclosed net loss at ₹ 2,41,520/- and the GP rate compared to A.Y. 2006-07 has gone down whereas sales are more or less same. In A.Y. 2008-09, the assessee had shown total sale of ₹ 82.01 lacs on which the assessee has shown GP rate @ 14.94%. The NP rate also gone in minus compared to preceding year even NP rate of precedi .....

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appeals filed by the revenue and cross objection filed by the assessee arise against the orders dated 21/11/2012 and 22/11/2012 passed by the ld. CIT(A)-II, Jaipur for the assessment year 2005-06 and 2009-10 wherein the Revenue as well as the assessee raised following grounds:- Ground of ITA No. 130/JP/2013 Revenue s appeal (A.Y. 2005-06) On the facts and in the circumstances of the case the ld CIT(A) has erred in: (i) holding the reopening the case U/s 147 of the IT Act, 1961, bad in law. (ii) .....

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o ₹ 35,000/- instead of ₹ 2,55,523/- made by the A.O. in respect of wine business by invoking the provisions of 145(3) and applying G.P. at 24% Ground of Assessee s C.O. No. 24/JP/2013 1. In the facts and circumstances of the case and in law the Id CIT (A) has erred in confirming the action of the Id AO in rejecting the books of account of the assessee by invoking the provision of section 145(3) and thereafter confirming the trading addition of ₹ 6,18,430/- out of the total tra .....

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f section 145(3) and thereafter confirming the trading addition of ₹ 35,000/- out of the total trading addition of ₹ 2,55,523/- of liquor business made by the Id. AO . The action of the Id. CIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the rejection of books and deleting the trading addition of ₹ 35,000/- 2. Both the appeals of the revenue and C.O. of the assessee are heard together and for the sake of con .....

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f ₹ 8,96,223/- by applying NP rate @ 8% and addition of ₹ 50,669/- U/s 50C of the Act. The ld Assessing Officer observed that in form No. 3CD, the assessee had made payment of ₹ 61,97,059/- to sub-contractors during the month of July 2004 to January, 2005 and tax had been deducted at ₹ 63,210/- payable in different months before March, 2005 but deposited on 07/4/2005. Accordingly, the ld Assessing Officer recorded the satisfaction U/s 147 of the Act on the ground that TDS .....

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made by the assessee. He further held that the assessee relied on amendment made U/s 40(a)(ia) by the Finance Act, 2010 w.e.f. 01/4/2010. Finally he held that notice U/s 148 of the Act is valid as the payments made of TDS deduction in the month of April, 2005. Accordingly, he disallowed ₹ 61,97,060/- U/s 40(a)(ia) of the Act. 4. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had allowed the appeal in favour of the assessee o .....

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. 3200/2011. The TDS has been deposited before due date of return. The amendment made in Section 40(a)(ia) by the Finance Act, 2010 is clarificatory. 5. Now the revenue is in appeal before us. The ld DR has vehemently supported the order of the Assessing Officer on both the issues. At the outset, the ld AR of the assessee has supported the order of the ld CIT(A) and prayed to uphold the order passed by him. 6. We have heard the rival contentions of both the parties and perused the material avail .....

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deration, therefore, we uphold the order of the ld. CIT(A) on ground No.1. On merit in ground No. 2 of the appeal, the ld CIT(A) had given details findings by considering the amended provisions of Section 40(a)(ia) and the Hon ble Calcutta High Court decision in the case of CIT Vs. Virgin Creations (supra). The assessee had paid TDS deducted on due date of return, accordingly, we uphold the order of the ld CIT(A). Hence, the revenue s appeals for the A.Y. 2005-06 is dismissed. 7. Now we take ITA .....

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,161/- interest on NSC matured ₹ 78,080/- and sale tax refund ₹ 60,936/-, net profit ₹ 83,87,701/- had been declared by the assessee. The ld Assessing Officer after reducing the interest income and depreciation from the gross income, the net profit rate had been worked out @ 4.63%. The total contract receipts also included sub-contract receipts of ₹ 4,82,75,732/-. There was no agreement between the sub-contractor and the assessee. The assessee had deducted TDS on sub-cont .....

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s. The opening and closing stock were shown by the assessee on estimate basis. The assessee s case has been audited U/s 44AB but the Auditor had not pointed out whether expenses are supported with the vouchers and the balance of creditors and debtors are confirmed. Age wise debtors and creditors limit had not been mentioned in audit report. The assessee had not maintained stock register but the method of valuation and quantification of stock had been mentioned as FIFO. Therefore, the ld Assessin .....

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subject to deduction of financial charges and depreciation. By considering the Hon ble ITAT decision in the case of Ved Prakash Pareek Vs. ITO 39 Tax World 176 and Santosh Kumar Rawat Vs. ITO Ward 5(1), Jaipur in ITA No. 631/JP/2006 wherein net profit rate of 8% and 10% respectively had been upheld. The ld Assessing Officer applied the provisions of Section 145(3) of the Act on the basis of defects pointed out by him and accordingly, net profit rate @ 8% applied on contract receipts subject to b .....

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377; 50,000/- each. Thereafter he adopted the methodology by adding increased net profit rate @ 2.26% and calculated and applied NP rate @ 14.61% for the year under consideration on trading addition of ₹ 42,32,926/-. Thus, he confirmed the addition of ₹ 6,18,430/- and remaining addition of ₹ 36,14,496/- has been deleted. 9. Now the revenue as well the assessee are in appeal and C.O. before us. The ld DR has vehemently supported the order of the Assessing Officer and argued that .....

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by the ld CIT(A) is not acceptable as the Hon ble ITAT has confirmed the addition in assessee s own case in A.Y. 2005-06 and 2006-07 by confirming lump sum addition of ₹ 50,000/- each for both the years. He has further drawn our attention on working of NP rate and argued that the assessee sale during the year has increased by 31% compared to immediate preceding year and 133% compared to A.Y. 2007-08 and on which net profit rate has been declared by the assessee after depreciation and inter .....

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sion in the case of Action Electricals (2002) 258 ITR 188 (Del) wherein it has been held that past history of the assessee would be one of the reliable guideline to make or not to make any addition. He further calculated the average net profit rate disclosed on the basis of A.Y. 2005-06 to 2008-09 i.e. @ 6.17%. The assessee had disclosed NP rate @ 6.31% if the addition confirmed by the ld CIT(A), the net profit rate is worked out @ 6.78%, which is totally unjustified. Therefore, he prayed to all .....

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.Y. 2008- 09, the assessee has disclosed NP rate @ 6.13% on turnover of ₹ 10.00 crores. Now turnover has gone up to ₹ 13.26 crores on which the assessee has disclosed NP rate @ 6.31%, which is better than NP disclosed in immediate preceding year but lower than A.Y. 2007-08. Therefore, under this head, we confirm a lump sum addition of ₹ 5.00 lacs in the interest of justice. 12. Under the liquor business, the assessee had shown loss of ₹ 2,41,519/- which has been assessed .....

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