M/S DELUXE ROADLINE PVT. LTD.,,BANGALORE vs. DCIT, BANGALORE

PER SHRI JASON P BOAZ, ACCOUNTANT MEMBER :

2. Briefly stated, the facts relevant for disposal of these appeals are as under:-

2.1 The assessee is a company carrying on the business of fleet owner, transport contractor and petrol pump. A survey u/s133A of the Income Tax Act, 1961 (in short ‘the Act’) was conducted at the assessee’s business premises on 14/7/2011. The Assessing Officer (‘AO’) noticed that the assessee had not filed its returns of income within the due date as specified u/s 139 of the Act and therefore initiated proceedings u/s 147 of the Act for AY’s 2010-11 and 2011- 12 and consequently issued notices u/s 148 of the Act to the assessee on 17/10/2013. In response thereto, the assessee vide letter dated 1/9/2014 requested the AO to treat the returns of income filed on 16/1/2013 for A.Y. 2010-11 and 4/9/2013 for A.Y. 2011-12 as returns of income filed in response to the aforesaid notices issued u/s 148 of the Act. The case was taken up for scrutiny and the assessments for AY’s 2010-11 and 2011-12 were completed by way of separate orders passed u/s 143(3) r.w.s 144 r.w.s 147 of the Act dated 31/10/2014. In the aforesaid orders of assessment, the AO, in the absence of books of account and vouchers estimated the assessee’s income for these two Asst years at 3% of the gross receipts.

2.2 Aggrieved by the orders of assessment both dated 31/10/2014 for AY’s 2010-11 and 2011-12, the assessee filed appeals before the CIT(A)-2, Bangalore, who dismissed these appeals vide orders dated 29/2/2016; observing that in spite of three opportunities afforded to the assessee, none appeared on behalf of the assessee and therefore it was presumed that the assessee had no explanation to offer in the matter. 3 Being aggrieved by the order of the CIT(A)-2, Bangalore dated 11/3/2016 for the AY 2010-11 and dated 29/2/2016 for asst. year 2011-12, the assessee has filed these appeals before the Tribunal, wherein it has raised the following grounds:-

Asst. Year 2010-11 “1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.

2. The learned CIT[A] is not justified in disposing off the appeal without allowing sufficient and real opportunity to the appellant in course of the appellate proceedings under the facts and in the circumstances of the appellant's case.

3. The order of re-assessment is bad in law and void- ab-initio for want of requisite jurisdiction especially, the mandatory requirements to assume jurisdiction u/s 148 of the Act did not exist and have not been complied with and consequently, the re-assessment requires to be cancelled.

4. The learned CIT[A] is not justified in upholding the determination of business income on estimate basis at 3% of the turnover and thereby assessing a sum of Rs.

1,27,69,007/- as business income under the facts and in the circumstances of the appellant's case.

5. The learned CIT[A] is not justified in upholding the separate assessment of Rs.75,85,890/- as Income from Other Sources under the facts and in the circumstances of the appellant's case.

6. The learned CIT[A] ought to have disposed off the ground raised

relating to the assessment of long term capital gains at Rs.72,56,354/- without allowing the exemption claimed u/s. 54D of the Act under the facts and in the circumstances of the appellant's case.

7. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies itself liable to be charged to interest u/s 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled.

8. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.”

Asst. Year 2011-12 “1.The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.

4,1 Though the assessee has raised several grounds in these appeals for AY’s 2010-11 & 2011-12 (Supra), in our view, the issues to be decided by us basically relates to the estimation of income by the AO and the disposal of the appeals exparte by the ld CIT(A).

4.2 We have considered the rival contentions and perused and carefully considered the material on record and find that the ld CIT(A) has disposed off the appeals for both AY’s 2010-11 and 2011-12 after observing that none appeared for the assessee on 12/2/2016. Before this, there were two other hearings on 14/8/2015 and 18/12/2015 in which also none appeared and adjournment was sought respectively. According to the submissions of the ld AR before us, none appeared before the ld CIT(A) on 12/2/2016 since the assessee’s AR was not keeping well. We also find that a coordinate bench of this Tribunal in its order in dated 10/7/2015 in the assessee’s own case for Asst. Year 2009-10 has restored the matter back o the file of the AO for fresh consideration. In the aforesaid order, the coordinate bench has held that the income of the assessee has to be estimated based on comparative cases of similar assessee’s engaged in transportation business. It is seen that the AO has passed the order giving effect to the Tribunal ordered 10/7/2015 for AY 2009-10 u/s 143(3) r.w.s 254 of the Act dated 31/3/2017 and are informed by the parties that the appeal against the said order is pending before the CIT(A). Since the orders of assessment for Asst. years 2010-11 and 2011-12 in the case on hand were passed vide orders 31/10/2014; i.e., before the order of the co-ordinate bench of the Tribunal in the assessee’s case for Asst. Year 2009-10 on 31/7/2015, we are of the considered opinion that it is in the fitness of things for all these aspects to be considered afresh since the AO has estimated the assessee’s income at 3% of the gross receipts without having examined any comparative case for these two asst. years before us. In this view of the matter, we set aside the impugned orders of the ld CIT(A), for AY’s 2010-11 and 2011-12 with the directions to re- examine and decide all these issues afresh in these years, in the light of the directions of the co-ordinate bench at paras 22 of its order in ITA No. 16/Bang/2013 dated 31/7/2015 in the assessee’s own case for Asst. Year 2009-10; which should meet the ends of justice. We hold and direct accordingly.

5 In the result, the assessee’s appeals for asst. years 2001-11 & 2011-12 are allowed for statistical purposes.

Order pronounced in the open court on 20th October, 2017.