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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R.S. SYALSHRI S.S. VISWANETHRA RAVI, JM
आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM :
The above said two appeals and C.Os filed by the Revenue and assessee respectively against the same common order dated 30.09.2016 passed by the CIT(A)-II, Thane for A.Ys.2011-12 and 2012-13.
Since the issues raised in both the appeals and cross-objections are
based on similar identical facts and therefore, with the consent of both the
parties, we proceed to hear the appeals and cross-objections together and
dispose of the same by this consolidated order for the sake of convenience.
We shall take the issue and facts and circumstances in appeal
No.2793/PUN/2016 as lead case.
The only effective issue emanates amongst three grounds raised to
be decided is whether the CIT(A) is justified in restricting the rate of net
profit at 8% and 4% as against 9% and 4.5% in the facts and
circumstances of the case.
Heard both sides and perused the material available on record. The
assessee is a firm and for the year under consideration derived income
from Government contracts and transport contracts. The assessee filed
its return of income declaring a total income of Rs.11,04,42,416/-. The
AO rejected the books of accounts u/s 145(3) of the Act and completed the
assessment vide its order dated 28.03.2014 by determining the total
income of Rs.12,81,44,555/- by estimating the net profit at 9% against
self-executed contract receipts and 4.5% on sub-contract receipts. The
CIT(A) restricted the same at 8% and 4% respectively. We find the order of
Co-ordinate Bench of the Tribunal of Mumbai in assessee’s own case for
A.Y. 2010-11 at Page No.68 of the Paper Book wherein we find the
Tribunal confirmed the order of CIT(A) in adopting net profit at 10% on
contract receipts and 5% on sub-contract receipts.
Shri Kushiram Jadhwani, Ld.A.R. submitted the assessee preferred
an appeal before the Hon’ble High Court of Bombay against the order
dated 21.12.2017 of Mumbai Tribunal for A.Y. 2010-11 and it is pending
for adjudication. There is no dispute in the facts and circumstances of the
present appeal with that of appeal for A.Y. 2010-11.
We note that the Co-ordinate Bench of the Tribunal, Mumbai in its
order to come to a conclusion in confirming the order of CIT(A) in
estimating the net profit at 10% and 5% by referring to the order of the
Tribunal in assessee’s own case for A.Y. 2008-09 and no order contrary to
the finding of Mumbai Tribunal nor any order suspending the same from
Hon’ble High Court of Mumbai is on record. Therefore, we are of the view
that the impugned order passed by the order of CIT(A) is not justified and
hence, it is set aside. Thus, the order of AO in adopting net profit at 9%
and 4.5% on contract receipts and sub-contract receipts respectively is
restored. Ground No.1 raised by the Revenue is allowed.
Ground Nos.2 and 3 are general in nature requiring no adjudication
from us. Hence, both are dismissed.
In the result, appeal in ITA No.2793/PUN/2016 is partly allowed.
Now we shall take up ITA No.2794/PUN/2016 as discussed above.
We find the only effective ground raised by the Revenue in this
appeal are similar to the ground No.1 in ITA No.2793/PUN/2016.
Therefore, the view expressed by us in ground No.1 in ITA
No.2793/PUN/2016 is equally applicable to ground No.1 in ITA
No.2794/PUN/2016. Thus, the ground No.1 raised by the Revenue is
allowed.
Ground Nos.2 and 3 are general in nature requiring no adjudication
from us. Hence, both are dismissed.
Now, we shall take up C.O.Nos.7 & 8/PUN/2019 filed by the
assessee.
Shri Kushiram Jadhwani, the Ld.A.R. submits that the assessee has
no interest in prosecuting the only ground raised in Cross-Objections and
prayed to dismiss the same as not pressed. Therefore, grounds raised by
the assessee in both the C.Os are dismissed as not pressed.
In the result, the C.Os of assessee are dismissed.
To sum up, appeals of Revenue are partly allowed and the C.Os of
assessee are dismissed.
Order pronounced on 6th day of November, 2018.
Sd/- Sd/- (R.S. SYAL) (S.S. VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER
पुणे Pune; �दनांक Dated : 6th November, 2019. Yamini
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-II, Thane. 4. Pr. CIT-II, Thane. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “ए” / DR, ITAT, “A” Pune; गाड� फाईल / Guard file. 6.
आदेशानुसार/ BY ORDER
// True Copy // // // True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.