ABDULLAZIZ JAAN MOHAMMAD ANSARI,DHULE vs. INCOME TAX OFFICER, WARD 1, DHULE
What did the Tribunal hold?
The Tribunal dismissed the additional ground regarding the validity of the Section 148 notice. However, it set aside the CIT(A)'s order for not properly considering the assessee's comparables and directed the CIT(A) to re-adjudicate the appeal.
What were the facts?
The assessee, engaged in livestock trading, initially filed income under Section 44AD. Following information from AIR regarding large sales to the assessee, the AO reopened the assessment. The CIT(A) partly allowed the appeal, directing profit estimation at 5% of turnover.
What were the issues?
Whether the notice under Section 148 was validly served and whether the CIT(A) properly considered the assessee's comparables while estimating profit.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI INTURI RAMA RAO & SHRI VINAY BHAMORE
Assessee by : Shri Rohit Tapadia Revenue by : Shri Manoj Tripathi Date of hearing : 01.05.2024 Date of pronouncement : 02.05.2024 आदेश / ORDER
PER INTURI RAMA RAO, AM:
This is an appeal filed by the assessee directed against the order of the National Faceless Appeal Centre, Delhi [‘NFAC’] dated 30.01.2024 for the assessment year 2011-12.
Briefly, the facts of the case are that the appellant is an individual engaged in the business of trading in livestock under the name and style of “M/s. Aziz Trading”. The Return of Income for 2 the assessment year 2011-12 was filed on 22.07.2011 offering the income to tax on presumptive basis u/s. 44AD by estimating income at 8% disclosing a total turnover of Rs.24,35,680/-. Subsequently, an information received from the AIR, wherein, the Venky’s Group made sales of Rs.5,13,05,561/-to the appellant during the F.Y. 2010-11 relevant to the A.Y. 2011, therefore, AO formed an opinion that the income of escaped assessment of tax, accordingly, issued notice u/s. 148 of the Act on 28.03.2018. In response to the said notice, the appellant filed return of income on 30.04.2018 by declaring business turnover of Rs.5,29,64,715/- offered an amount of Rs.5,54,179/- only. Against the said return of income, the assessment was completed by the the Assessing Officer vide order dated 21.12.2018 passed u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (‘the Act’) by assessing total income at 8% of turnover on undisclosed cash purchases.
Being aggrieved by the above, an appeal was filed before the NFAC, contending that the percentage of profit adopted by the AO is unreasonable excessive and not based on any evidence. During the course of proceedings before the CIT(A), the assessee had cited following comparables i.e. Aziz Trading Dhule, M S Traders, Naeem Ahmed Abdul Shakoor Quraishi, Indian Boiler Trading
3 Company, Mohammad Farrooque Abdul Aziz Ansari and Dhulia Golden Trading Co Dhule, wherein, the profit disclosed is only 1% of the turnover. However, the CIT(A) without dealing with the comparables relied upon by the appellant had partly allowed the appeal, by directing the AO to estimate the income at 5% of the turnover.
Being aggrieved, the appellant is in appeal before us in the present appeal.
The ld. AR also filed additional ground of appeal which reads as under : “The order passed u/s. 148 be declared as null and void as the notice u/s. 148 was served o the assessee after time limit prescribed in the IT Act. The above is purely legal Ground & First time Raised before Hon. Income Tax Appellate Authority. The necessary facts for adjudication of this ground are already in the Assessment Order itself and therefore, does not require any further factual support.”
The ld. AR further submits that the CIT(A) without adverting to comparables relied upon by the assessee has disposed of the appeal.
On the other hand ld. DR supports the order of CIT(A).
We heard both the parties and perused the material on record. First we shall take up the additional ground of appeal which goes to the very root of the matter. The appellant had assailed the assessment order vide this additional ground of appeal on the ground that the assessment order is bad in law as the notice u/s. 148 of the Act was served upon the appellant beyond the period prescribed under the statute. We do not find any merit in the additional ground of appeal as the provisions of section 148 of the Act, only requires to issue notice u/s. 148 within the prescribed period of limitation and even the service of notice u/s. 148 can be made beyond the period of limitation, the assessment order is not vitiated. Thus, the additional ground of appeal stands dismissed.
9. As regards merits of the appeal, we have carefully gone through the order of CIT(A), wherein the ld. CIT(A) without adverting to the comparables, who are in the same line of business had disposed of the appeal by directing the AO to 5% of the turnover as profit. The approach adopted by the CIT(A) is subjective and cannot be appreciated in the eye of law, therefore, the order of CIT(A) is being set aside direct the CIT(A) to deal with the submissions of the assessee and dispose of the appeal in accordance with law.
Order pronounced on this 2nd day of May, 2024.
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