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Income Tax Appellate Tribunal, AGRA (SMC
Before: SHRI A. D. JAIN
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH: AGRA
BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER
I.T.A No. 305/Agra/2016 (ASSESSMENT YEAR-2011-12)
Shri Baboo Lal Nimoria, ITO, Ward-3 (4), Mathura. Prop. M/s. Ajay Construction, Village Lathakuri, Po-Sona, Mathura. PAN No.ACAPN3734A (Revenue) (Assessee)
Assessee by Shri Anurag Sinha, AR Revenue by Shri Waseem Arshad, Sr.DR.
Date of Hearing 13.09.2017 Date of Pronouncement 23.11.2017
ORDER This is assessee’s appeal for assessment year 2011-12, raising the following grounds: “1. BECAUSE, the authorities below while framing the assessment under section 144 of the Act and sustaining the addition made therein was highly unjustified in discarding the past history of the
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'appellant'. Addition of Rs. 18,58,026/- as made by the learned 'AO' and sustained by the Ld CIT(A) by estimating Net Profit @8% on Gross Receipt is without any basis, evidence and is highly excessive and unreal in the light of facts of the case.
BECAUSE, the learned 'CIT(A)' erred in law in overlooking and thereby not considering the binding decisions of the Hon'ble Allahabad High Court and Hon'ble ITAT, Agra Bench and preferring to rely upon unreported decisions of Hon'ble ITAT, Hyderabad Bench and Agra Bench without confronting the same to the 'appellant'.
BECAUSE, while making the assessment the authorities below made various observations/ conclusions which are contrary to facts available on records. While making the addition submission made and evidences filed have been rejected arbitrarily.”
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As per Ground No. 3, the ld. CIT(A), while deciding the matter against the assessee, has relied on unreported rulings without confronting them to the assessee.
The ld. CIT(A), in Para 5.6 of the impugned order, has referred to a decition of the Hon’ble Punjab & Haryana High Court in ‘CIT vs. M/s Prabhat Kumar Contractor’, ITA No. 293 of 2008, a decision of the Hyderabad Bench of the Tribunal in ITA No. 1787/Hyd/2011, ‘M/s Hycons Infrastructure (India) Ltd., and ‘Bhaskar Reddy vs. ITO’, 168/Hyd/2006, dated 9.10.2007 and in para 5.7 of the order, the ld. CIT(A) has dealt with the order of the Agra Tribunal in ‘Mahesh Chandra vs. ITO’ in ITA No. 359/Agra/2011. Vide para 5.8 of the order under appeal, the ld. CIT(A) has followed this last decision against the assessee. However, the impugned order does not evince these unreported decisions to have been put to the assessee. As such, the grievance of the assessee in this regard is correct. When these case law are being used against the assessee, they ought to be first put to the assessee, so as to afford them an opportunity of rebuttal.
Accordingly, the matter is remitted to the file of the ld. CIT(A) to decide it afresh, in accordance with law, on confronting the decisions to the assessee and
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affording due opportunity of hearing to the assessee to rebut them. The assessee,
no doubt, shall co-operate in the fresh proceedings before the ld. CIT(A). All pleas
available under the law shall remain so available to the assessee. Ordered
accordingly.
In the result, for statistical purposes, the appeal is treated as allowed.
Order pronounced in the open court on 23/11/2017.
Sd/- (A.D. JAIN) JUDICIAL MEMBER Dated 23/11/2017 *AKV* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR