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2022 (11) TMI 274 - AT - Income TaxEstimation of income - percentage of the net profit as determined by the ld CIT(A) at 10% - HELD THAT - A perusal of the order of the ld CIT(A) clearly shows that the highest percentage assessed by the AO is 6% for the assessment year 2004-05. For the assessment year 2006-07, AO has determined the income at 4.9% in the assessment u/s.143(3) of the Act. This being so, we are of the view that the interest of justice would be served if the estimation of the percentage of net profit is taken at 8% as against 10% directed by CIT(A) and we do so. The findings of CIT(A) in regard to adoption of estimation of income of the assessee stands upheld and the estimation of income by the CIT(A) at 10% stands reduced to 8%. Addition of the protective addition - We are of the view that no interference is called for insofar as the addition made in the hands of the assessee was only protective and same CIT(A) has held the addition to be substantive in the hands of M/s. Serajuddin Co. The addition, if at all, is on substantive basis in the hands of M/s. Serajuddin Co. same can be challenged in the case of M/s. Serajuddin Co. No other arguments in regard to legal ground which has been raised by the assessee, Ld AR submitted that he is not pressing the ground and has endorsed in the file to that effect. Consequently, the legal issue raised by the assessee stands rejected. Levy of penalty u/s 271F - HELD THAT - As it is noticed that the facts in assessee s case are similar to the facts in the case of Gobardhan Matia 2022 (11) TMI 214 - ITAT CUTTACK in respect of levy of penalty under section 271F - Respectfully following the decision in the case of Gobardhan Matia 2022 (11) TMI 214 - ITAT CUTTACK the penalty as levied u/s.271F by the AO and confirmed by the ld CIT(A) stands deleted.
Issues:
1. Assessment of income based on non-cooperation of the assessee and reliance on statements without providing them for cross-examination. 2. Estimation of income by the Assessing Officer and the Commissioner of Income Tax (Appeals). 3. Percentage of net profit determination and adjustment. 4. Deletion of protective addition in revenue's appeals. 5. Penalty levy under section 271F of the Act. Analysis: Issue 1: Assessment of income based on non-cooperation and reliance on statements The case involved appeals filed by the assessee and the revenue regarding assessment years 2004-05 to 2008-09. The revenue alleged non-cooperation by the assessee during assessment proceedings and relied on statements without providing them for cross-examination. The Assessing Officer (AO) based the assessment on statements from the Director and Chartered Accountant of the assessee company. The Commissioner of Income Tax (Appeals) upheld the estimation of income at 10% of total receipts. The Tribunal found that non-cooperation and lack of evidence were key issues, leading to reliance on statements. Despite objections raised by the assessee, the Tribunal upheld the Commissioner's estimation of income due to insufficient evidence to dislodge the findings. Issue 2: Estimation of income The AO estimated the income of the assessee based on turnover and alleged excessive billing practices. The Commissioner upheld the estimation at 10% of total receipts, considering the lack of cooperation from the assessee. The Tribunal, however, reduced the estimation to 8% considering the AO's previous assessments. The Tribunal found the Commissioner's approach reasonable, given the absence of maintained books of accounts and vouchers, supporting the estimation method to determine the income. Issue 3: Percentage of net profit determination and adjustment The Tribunal reviewed the percentage of net profit determined by the Commissioner at 10% and adjusted it to 8% based on the AO's previous assessments for fairness and consistency. The Tribunal upheld the Commissioner's overall approach to estimating income while making a minor adjustment to the percentage of net profit for the benefit of the assessee. Issue 4: Deletion of protective addition in revenue's appeals Regarding the revenue's appeals on deletion of protective addition, the Tribunal found no interference necessary as the addition was considered substantive in the hands of another entity. The Tribunal upheld the Commissioner's decision on the protective addition, emphasizing that any challenge should be directed at the other entity rather than the assessee. Issue 5: Penalty levy under section 271F of the Act The Tribunal addressed penalty levied under section 271F of the Act for the assessment years 2008-09 and 2009-10. Citing a precedent case, the Tribunal ruled in favor of the assessee, following a Co-ordinate Bench decision that highlighted valid grounds for non-filing of returns within the specified time frame. Consequently, the penalty levied by the AO and confirmed by the Commissioner was deleted in alignment with the precedent case. In conclusion, the Tribunal dismissed the revenue's appeals and partly allowed the assessee's appeals, providing detailed reasoning for each issue raised and offering adjustments where deemed necessary for fairness and consistency in the assessment process.
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