Ucon, Paschim Medinipur vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri P. K. Bansal, AM & Shri Mahavir Singh, JM]

I.T.A No. 1885/Kol/2012 Assessment Year: 2006-07 Assistant Commissioner of Income-tax, Vs. M/s. Ucon Circle-2, Midnapore (PAN:AAAFU6874G) (Appellant) (Respondent)

Date of hearing: 27.05.2015 Date of pronouncement: 11.06.2015

For the Appellant: Shri K. L. Kanak, Sr. DR For the Respondent: Shri Indranil Banerjee, FCA

ORDER Per Shri Mahavir Singh, JM:

This appeal by revenue is arising out of order of CIT(A)-XXXVI, Kolkata, in appeal No. 525/CIT(A)-XXXVI/Kol/Cir-2,Mid/11-12 dated 29.10.2012. Assessment was framed by DCIT, Cir-2, Midnapore, u/s. 147/144 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for Assessment Year 2006-07 vide his order dated 27.12.2011.

2. The only issue in this appeal of revenue is against the order of CIT(A) deleting the addition of Rs.44,33,130/- made by AO in assessment by adopting profit from the business of civil construction @ 8% of gross receipts. For this, revenue has raised following grounds:

"That on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in holding that the provisions of section 44AD was not applicable to assessee's case.

That on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in deleting the addition of Rs.44,33,130/- made in assessment by adopting profit from the business of civil construction @ 8% of gross receipts.

That on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in ignoring the fact that assessment in this case was completed u/s. 144 due to repeated non- compliance of various statutory notices on assessee's part and that the AO had no other option than applying the provisions of section 44AD."

2 ITA No.1885/K/2012 M/s. Ucon AY 2006-07

3. At the outset, Ld. Counsel for the assessee Shri Indranil Banerjee made a mention and has taken us to para 5 of CIT(A)'s order wherein the reopening is quashed. The relevant portion of para 5 reads as under:

"5. .....

Under the present facts and circumstances, it is my considered opinion that the very basis of reopening proceedings suffers from illegality. Moreover, provisions of section 44AD was not applicable to the case of the appellant as the total turnover exceeded Rs.40.00 lacs and books of account are maintained and audited. So, on the basis of misconstrued interpretation of a provisions of the law, the very basis of reopening proceedings was made without authority and beyond jurisdiction by the AO for being made at the instance of the revenue audit, the assessment thereafter is bound to be void...."

When a query was put to ld. Counsel Shri Banerjee, whether the reopening was the issue before CIT(A), he drew our attention to the additional ground raised before CIT(A) at page 1, which reads as under:

"Additional Ground:

The proceeding initiated u/s. 147 of the I. T. Act, 1961 and order passed in consequence thereto are bad in law and on the facts and circumstances of the case."

Ld. Counsel for the assessee stated that the revenue has not challenged the quashing of reopening/reassessment proceedings by CIT(A). On this, we turned to Ld. Sr. DR and asked him whether the revenue has challenged the reopening? He categorically stated that from the ground it is clear that it is not challenged.

4. We have heard rival submissions and gone through the facts and circumstances of the case. We find that the revenue has not challenged the quashing of reassessment proceedings by CIT(A) and once quashing of reassessment proceeding is accepted by CIT(A) nothing survives. Accordingly, appeal of revenue is dismissed.

5. In the result, appeal of Revenue is dismissed.

6. Order is pronounced in the open court on 11.06.2015 Sd/- Sd/-

(P. K. Bansal) (Mahavir Singh) Accountant Member Judicial Member

Dated : 11th June, 2015

Jd.(Sr.P.S.) 3 ITA No.1885/K/2012 M/s. Ucon AY 2006-07

Copy of the order forwarded to:

1. APPELLANT - ACIT, Cir-2, Midnapore.

2 Respondent - M/s. Ucon, Partners: Abdul rouff & Tauseef Rouff, Vill -

Panchberia, P.O. Inda, Kharagpur, Dist Paschim Medinipur, WB., Pin- 721305

3. The CIT(A), Kolkata

4. CIT , Kolkata

5. DR, Kolkata Benches, Kolkata /True Copy, By order, Asstt. Registrar.