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2016 (8) TMI 868 - AT - Income TaxReopening 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 assessment year under consideration, 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 (2011 (11) TMI 348 - CALCUTTA HIGH COURT ). 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. 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 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. Loss assessed by the Assessing Officer as positive income - CIT(A) followed the Hon ble ITAT Jaipur Bench decision in assessee s own case for A.Y. 2006-07 where addition has been restricted to ₹ 35,000/- - Held that - 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 preceding year is applied, the addition goes much more than made by the Assessing Officer, therefore, we reverse the order of the ld CIT(A) and order of the ld Assessing Officer is confirmed. Hence, revenue s appeal on this ground is allowed.
Issues Involved:
1. Validity of reopening the case under Section 147 of the IT Act, 1961. 2. Deletion of addition made under Section 40(a)(ia) of the IT Act due to late deposit of TDS for A.Y. 2005-06. 3. Restriction of trading addition in construction business for A.Y. 2009-10. 4. Restriction of trading addition in wine business for A.Y. 2009-10. 5. Assessee's objection to the rejection of books of account under Section 145(3) and the resulting trading additions for both construction and wine businesses. Detailed Analysis: 1. Validity of Reopening the Case under Section 147 of the IT Act, 1961: The Revenue challenged the CIT(A)'s decision that reopening the case under Section 147 was "bad in law." The original assessment was completed under Section 143(3) on 13/12/2007. The notice under Section 148 was issued on 25/3/2011, after four years from the end of the assessment year. The assessee had disclosed all particulars of income in the return and audit report, and there was no failure on the part of the assessee in disclosing full and true material facts necessary for assessment. Thus, the Tribunal upheld the CIT(A)'s decision, confirming that the reopening was invalid. 2. Deletion of Addition Made under Section 40(a)(ia) of the IT Act Due to Late Deposit of TDS for A.Y. 2005-06: The CIT(A) deleted the addition made under Section 40(a)(ia) on the grounds that the TDS was deposited before the due date of the return. The CIT(A) relied on the Hon'ble Calcutta High Court decision in CIT Vs. Virgin Creations, which held that the amendment made in Section 40(a)(ia) by the Finance Act, 2010 was clarificatory. The Tribunal upheld the CIT(A)'s decision, confirming that the TDS payment was made on time and the addition was rightly deleted. 3. Restriction of Trading Addition in Construction Business for A.Y. 2009-10: The Assessing Officer (AO) applied a net profit (NP) rate of 8% on the gross contract receipts, leading to an addition of ?42,32,926/-. The CIT(A) restricted this addition to ?6,18,430/-, considering the past history of the assessee and the methodology used in previous assessments. The Tribunal confirmed a lump sum addition of ?5,00,000/- in the interest of justice, acknowledging that the books of accounts were not reliable but also considering the assessee's past performance. 4. Restriction of Trading Addition in Wine Business for A.Y. 2009-10: The AO applied a gross profit (GP) rate of 24%, resulting in an addition of ?2,55,523/-. The CIT(A) restricted this addition to ?35,000/-, following the Hon'ble ITAT Jaipur Bench decision in the assessee's own case for A.Y. 2006-07. The Tribunal reversed the CIT(A)'s order and confirmed the AO's addition, noting that the assessee had shown positive income in previous years and that the GP rate had significantly decreased without justification. 5. Assessee's Objection to the Rejection of Books of Account under Section 145(3) and the Resulting Trading Additions: The assessee objected to the rejection of books of account and the resulting trading additions. The AO pointed out various defects in the books, such as unverifiable sub-contract payments and cash expenses supported by self-made vouchers. The Tribunal noted that the assessee did not challenge the rejection of books before the CIT(A) or the Tribunal, thus accepting the unreliability of the books. The Tribunal confirmed the rejection of books and the resulting trading additions, albeit with some modifications as discussed above. Conclusion: The Tribunal upheld the CIT(A)'s decision on the invalidity of reopening under Section 147 and the deletion of addition under Section 40(a)(ia). However, it modified the trading additions in the construction business to a lump sum of ?5,00,000/- and reversed the CIT(A)'s restriction in the wine business, confirming the AO's addition. The appeals of both the Revenue and the assessee were partly allowed.
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