COMMISSIONER OF INCOME TAX JAI vs. KHOKHAR CONSTRUCTION CO.

ITA-52/08 (1) In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur O R D E R D.B. Income Tax Appeal No.52/2008 Commissioner of Income Tax, Jaipur-III, Jaipur Vs. Khokhar Construction Co. Date :: 20.03.2013 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice Arun Bhansali Mr. Sameer Jain, for appellant. Instant appeal has been filed by the department U/s 260A of the Income Tax Act,1961 (“the Act”) assailing order of Income Tax Appellate Tribunal (“Tribunal”) dt.24.03.2006 as regards assessment years-1997-98. The respondent assessee as alleged in the appeal is a civil contractor and declared gross profit of Rs.16,51,035/- and net profit of Rs.2,45,047/- against contract receipts for the assessment year 1997-98. The assessing officer rejected the books of accounts of the assessee U/s 145(3) of the Act and applied net profit rate of 10% on the contract receipts for the relevant assessment year and allowed deduction in respect of depreciation, salary to partners and interest to partners therefrom to arrive at the figure of income from business. An appeal came to be preferred by the assessee to the Commissioner of Income Tax (Appeals)-III, Jaipur ['CIT(A)'] and rate of profit was reduced to 8% and also the interest

ITA-52/08 (2) from FDRs was directed to be taxed under the head “Income from Business and Profession”. Against the order of the CIT(A) dt.31.03.2003 appeal came to be preferred by the department before the Tribunal. However, the learned Tribunal while dismissing the appeal preferred by the appellant affirmed rate of profit at 8% instead of 10% and assigned cogent reasons. Against the order of the Tribunal, the department has preferred instant appeal before this Court after a delay of 79 days and the ground appears to be that the cogent reason has not been assigned by the learned Tribunal while passing order impugned. As is revealed from the record that against the order of Tribunal dt. 24.03.2006 the appeal was preferred on 09.10.2006 but no- one has taken care to remove the defects pointed out by the office and the appeal came to be registered in July,2008 and that too after intervention by the Court. However, application has been filed U/s 5 of Limitation Act and it has been averred that order impugned dt.24.03.2006 was received by the appellant on 12.06.2006 and the appeal was filed on 09.10.2006 which according to the appellant is within the period of limitation of 120 days and there was no delay in filing the appeal but it has not been supported by any documentary evidence on record and the

ITA-52/08 (3) certified copy of order impugned dt.24.03.2006 does not indicate as to when it was made available/supplied to the appellant, in absence whereof the delay could be computed from the date of order impugned dt.24.03.2006 but without going into merits of the matter any further, we condoned the delay and heard the matter on merits. Counsel for appellant submits that no cogent reasons were assigned by the learned Tribunal while dismissing the appeal under order impugned and there was no reason assigned while affirming rate of profit at 8% instead of 10% as recorded by the Assessing Officer regarding net profit rate of 8% against 10% while passing assessment order dt.24.03.2000. The submission made is wholly without substance for the reason that when there was order of affirmance no detailed reasons were otherwise required to be assigned and it was observed by the learned Tribunal that as regards assessment years 1992-93 to 1994-95 the departmental appeals were dismissed and application of 8% profit rate was held to be reasonable and the present appeal is in respect of assessment year-1997-98 and the question decided by the learned Tribunal is one and the same. After hearing counsel for appellant and

ITA-52/08 (4) going through the material on record, what is being decided by the learned Tribunal under order impugned is a question of fact and there is no substantial question of law at all emerges for consideration which may require consideration in the instant appeal. Consequently, the appeal is devoid of merit and accordingly stands dismissed. (Arun Bhansali), J. (Ajay Rastogi),J. VS Shekhawat/-p.4 52ita08Mar20FnlDsps(D1).doc Certificate - All corrections have been incorporated in the judgment/order being emailed/Vijay Singh Shekhawat/PAJW