B S Gupta v. Commissioner Of Income Tax

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 181 / 2002 B S Gupta ----Appellant Versus Commissioner Of Income Tax ----Respondent _____________________________________________________ For Appellant(s) : Mr. Sanjay JhanwarFor Respondent(s) : Ms. Parinitoo Jain _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VINIT KUMAR MATHURJudgment / Order 24/01/2017 1.By way of this appeal, the appellant has assailed thejudgment & order of the Tribunal whereby the Tribunal hasdismissed the appeal of the assessee in spite of the fact that it haspartly allowed the ground on merits in spite of the fact that it wasspecifically contended that the document which has sought to beproduced by the department was not produced. 2.Last time when the matter was called out, we have passedfollowing order on 17[th] January, 2017, which reads as under:- “Heard counsel for the parties. The first issue is covered by the decision of theHon’ble Supreme Court in (2010) 321 ITR 362. Mr. Sanjay Jhanwar has pointed out that forissue No. 2, the Tribunal has observed asunder:- “Parties have been heard with reference tomaterial on record. Through the writtensubmissions, the assessee has contended thatthe application of profit rate at 8% is reasonable. We also find that presumptive tax@ 8% in case of contractors has been broughtin the statute with effect from assessment year94-95. Keeping in view the legislative intentionand the history of the case, we direct theassessing officer to apply a profit rate of 8% onthe contract receipts as worked out by the Id.Commissioner of Income tax (Appeals). Thisbeing so, we do not find any merit inassessee’s plea for allowing separate deductionfor sales -tax payments of Rs. 78,906/- madeby him. If department is desirous to produce on recordthe document, they may do so. As a last chance, matter be listed on 24[th]January, 2017. It is made clear that no further time will begranted. It will be open to presume against thedepartment. Copy of the order be furnished to Ms. ParinitooJain to take follow up action with thedepartment looking to the importance of theorder. 3.We have called upon the department to produce the same,however, the case is of the three different addresses of theassessee. They could not trace the file. However, the view takenby the Tribunal is required to be set aside only on the ground ofappeal where this word has been used with reference to the factof knowledge in conjunction to the facts stated by him. He wasnot able to precisely state as to what the manipulation has beendone by the departmental authorities. 4.Even otherwise for the lack of any material before us andfor non-production of any record by the revenue, a clear case ofmanipulation has not been made by the assessee and theground for manipulation of record by the assessee standsrejected. 5.In our opinion, the Tribunal ought to have verified theoriginal record. Only on that ground, we have set aside the orderof the Tribunal and remitting back the matter to the Tribunal.The Tribunal will consider the law prevailing as on today. 6.Both the parties will appear before the Tribunal on 13[th]March, 2017 and the Tribunal will dispose off the appeal withinthree months of appearance of both the parties and will decideall contentions raised by the parties. 7.It is made clear that we have not expressed any opinion onmerits and this income tax appeal is remitted back to theTribunal only on the ground that in spite of the non-productionof the documents, the Tribunal has seriously committed an errorin presuming against the department for non-production ofdocuments. 8.Accordingly, the appeal stands disposed off. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. A.Sharma/137