ACIT, CUTTACK vs. GANGADHAR JENA, PARADEEP

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER

ITA No.357/CTK/2015 Assessment Year: 2011-2012

ACIT, Circle 1(1), Cuttack Vs. Sri Gangadhar Jena, HIG-23, Gourav Vihar, Madhuban, Paradeep PAN/GIR No.ABOPJ 8514 D (Appellant) .. ( Respondent)

Assessee by : Shri Sheshadev Das, AR Revenue by : Shri Subhendu Dutta, DR

Date of Hearing : 18 /07/ 2019 Date of Pronouncement : 18 /07/ 2019

O R D E R Per C.M.Gar, JM This is an appeal filed by the revenue against the order of the

Commissioner of Income Tax(Appeals), Cuttack dated 29.5.2015 for the

assessment year 2011-12.

“1. Whether, on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in giving direction to the AO to estimate profit @8% of the gross contract receipts after deducting depreciation from the gross receipts as claimed by the assessee, as against the profit estimated by the AO @10% and allowing depreciation there after which is contradictory to the earlier decision in the assessee's own case for the A/Y:2009-10 passed by the same Id.CIT(A) in ITA No.495/2013-14 dated 27.02.2015 wherein the estimation of profit made by the AO @8% of gross contract receipts without any depreciation was confirmed. 2. Whether on the facts and in circumstances of the case, the Ld.CU(A) was justified in giving direction to the AO to estimate profit @5% on the subcontract

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work as against the profit estimated from sub contract work by the AO @8%, which is contradictory to the earlier decision passed in the assessee's own case for the A/Y:2009-10 passed by the same Ld.CIT(A) in ITA No.495/2013-14 dated 27.02.2015 wherein the estimation of profit made by the AO @6% from sub- contract work was confirmed. 3. In the facts and circumstances of the case, Id.CIT(A) erred in not enhancing the estimation of profit from the transport contract receipts from 4% to 5% as upheld in the earlier decision passed by the ld.CIT(A) for the same assessee for A/Y:2009-10 reported in ITA No.495/2013-14 dated 27.2.2015.”

the CIT(A), Cuttack dated 29.5.2015 in I.T.Appeal No.47/14-15, the appeal

was filed by the assessee, which was registered as ITA No.440/CTK/2015

and the revenue also filed appeal challenging the relief granted by the

CIT(A) by the said order, which was also registered as ITA

No.357/CTK/2015. It submitted that in appeal filed by the assessee, the

Tribunal vide order dated 23.2.2016 restored the matter to the file of the

Assessing officer for denovo fresh assessment in accordance with the law. It

was also agreed by both the parties to the factual position that in pursuance

to the Tribunal order dated 23.2.2016, the Assessing Officer has passed

assessment order under section 143(3)/254 of the I.T.Act, 1961 on

29.12.2016, wherein, the Assessing Officer has made similar additions

which were made in the original assessment order u/s.143(3) of the Act

dated 21.3.2014.

when the Assessing Officer has passed assessment order u/s.143(3) r.w.s.

254 of the Act on 29.12.2016 in pursuance with the direction of the Tribunal

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by making identical additions, then, this appeal of the revenue has become

infructuous and revenue may kindly be permitted to withdraw the same. Ld

A.R. submitted that the assessee has no objection if revenue wants to

withdraw the appeal.

Order pronounced on 18 /07/2019. Sd/- sd/- (L. P. SAHU) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIALMEMBER Cuttack; Dated 18 /07/209 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : ACIT, Circle 1(1), Cuttack

Sr. Pvt. Secretary, ITAT, Cuttack

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