Shri Vijay Kishore Singh ,, Gonda vs Department Of Income Tax

Income Tax Officer, Vs Shri Vijay Kishore Singh, Gonda. 33, Azad Nagar, Gonda. PAN:BUKPS1525B (Appellant) (Respondent)

Appellant by Shri Y. P. Srivastava, D. R. Respondent by Shri Shailendra Mishra, Advocate Date of hearing 25/02/2015 Date of pronouncement 23/03/2015

ORDER PER A. K. GARODIA, A.M.

This is Revenue's appeal directed against the order passed by learned CIT(A)-II, Lucknow dated 28/01/2013 for the assessment year 2009-2010.

2. In this appeal the Revenue has raised the following grounds:

"1. That the Ld. CIT(A)-II, Lucknow has erred on facts and circumstances of the case and in law in applying a net profit rate of 1.6% even when the Ld. CIT(A)-II has categorically observed that the AO was justified in rejecting the books of accounts under section 145(3) of the Act.

2. That the order dated 28.01.2013 passed by the Ld. CIT(A)- II, Lucknow in appeal No. 23/113/ ITO/ Gonda/ LKO/11-12 relating to assessment year 2009-10 being erroneous in law and on facts deserves to be cancelled and order of the A.O. deserves to be restored."

2 3. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that the comparative rate of gross profit and net profit for the present year and the preceding year are available on page No. 28 of the paper book.

4. We have considered the rival submissions. We find that after rejecting the book result, the Assessing Officer has estimated the income of the assessee by applying net profit rate of 8%. As against this, learned CIT(A) has adopted the net profit rate at 1.6% as against 1.55% of net profit rate shown by the assessee in assessment year 2008-09 i.e. preceding year and 1.2% in the present year. The assessment for the preceding year was completed u/s 143(1) of the Act. The Assessing Officer has noted on page No. 3 of the assessment order that the expenses debited in the profit & loss account under various heads totaling to Rs.435.78 lacs remained unverifiable for the sole reason that the books of account etc. were not produced by the assessee inspite of ample opportunity provided to him. Since in the preceding year also, the assessment was completed u/s 143(1), the profit shown by the assessee in that year is not sacrosanct. The turnover in the preceding year was Rs.164.43 lac and turnover in the present year is Rs.436.20 lac. In the present year, the assessee is showing net profit of 1.25%. In the absence of any books of account and supporting evidence regarding expenses, the income of the assessee has to be computed on reasonable basis and such basis cannot be the profit shown by the assessee in the preceding year for which the assessment was completed u/s 143(1). Considering the facts of the present case, in our considered opinion, the net profit of 3% will meet 3

the end of justice. We hold accordingly. The Assessing Officer is directed to assess the income of the assessee by applying net profit rate of 3%.

5. In the result, the appeal of the Revenue stands partly allowed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:23/03/2015. *C.L.Singh

Copy of the order forwarded to : 1.The Appellant 2.The Respondent. 3.Concerned CIT 4.The CIT(A) 5.D.R., I.T.A.T., Lucknow Asstt. Registrar