TMI Blog2006 (4) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... essee filed the return of income on 15-10-2001 declaring therein income of Rs. 2,26,470. The facts of the case are that assessee was a Union of Truck Operators of Bathinda Town formed with an object of making collective bargaining to divide the transportation work equally amongst the truck owners and to provide a common office and sitting place with facilities like shelter cold water and chairs/tables to the Members/Drivers. The Union does not own any Trucks of its own. The Union entered into agreement with Government agencies like FCI, PUNSUP, N.F.L. etc. for supply of Transport. The freight charges are collected and passed down to Truck Operators. All the Members through common resolutions contributed funds for the Union by way of yearly fixed fees or a percentage per trip or any other method approved by the Members. In the return of income, the assessee had shown gross freight receipts of Rs. 4,45,42,701 Union Fee of Rs. 1,80,800 and collection from Truck owners at Rs. 10,20,380. The payments to Truck owners were shown at Rs. 4,45,42,701 and after claiming various expenses which included mainly of salary at Rs. 6,30,000 printing and stationery at Rs.70,400 income tax at Rs. 60,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are as under:- It is pertinent to note here that the appellant did not produce the books of account before the Assessing Officer. In its written submissions dated 26-5-2003, it mentioned to file list of members, truckers of the society but in reality it gave only the list of truck numbers affiliated to the union and furnished no names and addresses of any particular member. The extent to which it refused to cooperate with in the assessment proceedings is openly visible from the fact that not to speak of books of account and vouchers it did not submit even bank account or the list of members. No detail or evidence with regard to the expenditure as claimed in the profit and loss account was furnished. In view of this, I find that the Assessing Officer was left with no alternative except to estimate the net profit @ 10 per cent particularly when the truck operator union are well known for their monopoly and high handedness. Through these means, the profit earned by them would definitely for more than but a normal business activity would yield. Lest this order should be blamed of showing unnecessary bias against conduct of the truck unions. I do hereby draw support from the famou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 3-10-2001 for the assessment year 1998-99, upheld the net profit rate of 3 per cent and the Department has not filed any appeal against the said order (A copy was placed before us) . Relying on the judgment of Supreme Court in the case of Berger Paints India Ltd. v. Asstt. CIT [2004] 266 ITR 99, the Ld. counsel submitted that if the Department has accepted the decision in one case, it could not challenge the same in another case. He, therefore, submitted that net profit rate of 3 per cent should be applied in this case also because the assessee could not produce the bills and vouchers. 5. The Ld. D.R., on the other hand, heavily relied on the orders of authorities below. He submitted that here was a case where assessee has failed to produce the books of account, bills and vouchers and receipts were to the tune of Rs. 4.45 crores. He, therefore, submitted that the income estimated by the Assessing Officer was fair and reasonable. 6. We have heard both the parties and given our thoughtful consideration to the rival contentions gone through the evidence and material placed on record and the orders of the authorities below. It is not in dispute that assessee had not produced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n refer to the past history of the case which acts as a good guide to the Assessing Officer. If past history of the case is not available, the Assessing Officer can refer to comparative cases engaged in similar trade and estimate the income the basis of GP/NP shown/estimated in those cases. The Assessing Officer can also make independent enquiries and refer to the results of such enquiries after confronting the same to assessee. In the present case, the Assessing Officer has neither referred to past history of the case nor has made any independent enquiries. He has also not referred to any comparable case where income was estimated by applying net profit rate of 10 per cent. Therefore, it could be said that income estimated by the Assessing Officer is without any basis and the CIT(A) too has summarily upheld the same without referring to any other case. 9. Now, it is a fact that assessee is a society formed for the collective benefit of its Members and provides certain facilities to the Members/Drivers. On our directions, the Ld. counsel produced a copy of the balance sheet for the assessment year under reference. A perusal of the same shows, the Society does not own any Trucks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipts for the assessment year under reference were at Rs. 4.45 crores i.e., almost three times than the receipts of the assessment year 2001-02. If we apply the same ratio, income for the assessment year under reference works out to Rs. 13,89,144 (i.e., 4,63,048 x 3) . 10. The Ld. counsel has referred to the decision dated 3-10-2001 of CIT(A) , Bhatinda, in the case of the Truck Union Rampura Phul case (supra) for the assessment year 1998-99 (a copy was placed before us) where assessment was completed under section 144 by applying net profit rate of 4 per cent by Assessing Officer on freight contract receipts of Rs. 2,21,20,827. On appeal, the CIT(A) reduced the net profit rate of 3 per cent of the freight receipts. The contention of the Ld. AR that Department has not filed any appeal against the said order of CIT(A) is not disputed by the Revenue. In the case of Berger Paints India Ltd. (supra) , it has been held if the Department has not challenged the decision of the appellate authority in one case, it is not open to Department to challenge the decision in another case. The principle of consistency and uniformity in approach is required to be followed. These facts show that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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