M/S MAA CHINNAMASTA TRADERS,BURDWAN vs. I.T.O WD - 2(2),ASANSOL, ASANSOL

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-Asansol dated 07.03.2013. Assessment was framed by ITO Ward-2(2), Asansol u/s 144/143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 19.12.2011 for assessment year 2009-10. 2. At the outset it was noticed that the Revenue has neither appeared before us nor moved any adjournment petition. In such situation, we decided M/s Maa Chinnamasta Traders Vs. ITO Wd-2(2) ASL. Page 2 to proceed to adjudicate the matter after hearing Shri R.N.Ram, Ld. Authorized Representative appeared on behalf of assessee.

Facts in brief are that assessee in the present case is a partnership firm and engaged in business of contractor. The assessment for the year under consideration was framed 144 of the Act as assessee failed to produce necessary documents along with books of account before Assessing Officer. The assessee before AO submitted that one partner of the assessee-company was absconding for the last several months with the books of account, therefore, the same cannot be submitted. The AO in the absence of books of account has made the assessment u/s 144 of the Act to the best of his knowledge after making certain additions / disallowances to the total income of assessee.

Aggrieved, assessee preferred an appeal before Ld. CIT(A) who estimated the income of assessee @ 12.5% of the gross contract receipts.

At the outset, Ld. AR brought to our notice that the Revenue has also filed the appeal (in against the order of ld. CIT(A) which has been restored back to the file of AO for fresh adjudication. The issue in the present appeal is also directly connected with the Revenue’s appeal and therefore it should be restored back to the file of AO for fresh adjudication.

We have heard Ld. AR for the assessee and perused and carefully considered the materials on record. At the outset, we find that the Revenue’s appeal (supra) has been restored back to the file of AO by the Co-ordinate Bench for fresh adjudication as per law. The operative portion of Tribunal’s order reproduced below:- “6. Having heard the rival submission, we are of the view that there is merit in the submissions of the ld. DR for the revenue, as the proposition canvassed by him are supported by the facts cited above. As he has explained that one of the partners of the firm has absconded with books of account but these had not filed any FIR with the police department therefore their stats cannot be relied. There is no point to M/s Maa Chinnamasta Traders Vs. ITO Wd-2(2) ASL. Page 3 reveal that the partner as absconded. The CIT(A) did not ask the assessee firm to produce before him the FIR and other documents which can show that one of the partners has been absconded with books of account and till date the partner is not traceable. The assessee under consideration comes under the tax audit ambit and Tax audit report u/s. 44A has been certified by the Chartered Accountant therefore assessment cannot be done based on estimate. If the books of account are absconded by one of the partners but then copy of the tax audit report must be available with the Chartered Accountant of the assessee. The said partner cannot steal the tax audit report form CA office and the assessee must produce the tax audit report before AO along with other documents. Besides, the ld. AR for the assessee has submitted before us two case laws which are not applicable to the facts under consideration because the other partners have failed to prove the fact that one of the partners has absconded with the books of account and they had not filed the FIR with the police authorities. Therefore it not acceptable. Therefore these two case laws cited before us are not applicable to the facts under consideration. Accordingly, we re of the view that this issue requires fresh examination at the end of the AO. We also direct the assessee to produce the books of account and get the assessment done. Therefore, we set aside the order of CIT(A) and restore the issue to the file of AO with the direction to ascertain the net income of the assessee s per the discussion supra.”