The Commissioner Of Income Tax, Karnal v. Shri Sukhvinder Singh

-1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CM-22095-CII-2016 and ITA-28-2013 (O&M) Date of Decision: 10.7.2017 The Commissioner of Income Tax, Karnal Versus ....Appellant. Shri Sukhvinder Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MR. JUSTICE AMIT RAWAL. PRESENT: Mr. Yogesh Putney, Senior Standing Counsel,for the appellant. for the appellant. Mr. Rajiv Sharma, Advocate for the respondent. AJAY KUMAR MITTAL, J. CM-22095-CII-2016 1.This is an application for recalling the order dated 8.2.2016passed by this Court and for revival of the appeal. 2.On 8.2.2016, learned counsel for the appellant submitted thatsince the tax effect involved was ` 16,66,247/-, he may be allowed towithdraw the appeal in view of Circular No. 21/2015 dated 10.12.2015issued by the Central Board of Direct Taxes, New Delhi with liberty to filean application for revival of the appeal in case something survives therein.Accordingly, the appeal was dismissed as withdrawn vide order dated8.2.2016 with liberty as prayed for with the clarification that withdrawal of the appeal by the revenue shall not be taken to be affirmation of order of the Tribunal on merits. Further, the legal issue as claimed by the revenue wasleft open to be adjudicated in an appropriate case. 3.After hearing learned counsel for the parties and perusing theapplication for recalling the order dated 8.2.2016 and the reasons recordedtherein which is supported by an affidavit, the order dated 8.2.2016 isrecalled and the appeal bearing ITA-28-2013 is revived. 4.CM stands disposed of accordingly. ITA-28-2013 1.In view of the order of even date passed in CM-22095-CII of2016, the appeal stands revived. At the joint request of learned counsel forthe parties, the appeal is taken up for hearing today itself. 2.This appeal has been filed by the revenue under Section 260Aof the Income Tax Act, 1961 (in short “the Act”) against the order dated24.9.2012 (Annexure A-3) passed by the Income Tax Appellate Tribunal,Chandigarh Bench “A”, Chandigarh (hereinafter referred to as “theTribunal”) in ITA No. 1233/CHD/2011, for the assessment year 2008-09,claiming the following substantial questions of law:- (i)Whether under the facts and circumstances of thecase, the Ld. ITAT was right in law in directing theAssessing Officer to apply net profit rate @ 6%,whereas complete bills and vouchers have not beenmaintained by the respondent-assessee?case, the Ld. ITAT was right in law in directing theAssessing Officer to apply net profit rate @ 6%,whereas complete bills and vouchers have not beenmaintained by the respondent-assessee? (ii)Whether under the facts and circumstances of thecase, the Tribunal order is sustainable fordetermination of income by distinguishing thenature of work contract i.e. Building contract orcase, the Tribunal order is sustainable fordetermination of income by distinguishing thenature of work contract i.e. Building contract or Road contract in view of judgment of jurisdictionalHigh Court in the case of Prabhat Kumar, Sirsa v.CIT (293 of 2008)? (ii)Whether under the facts and circumstances of thecase, the Tribunal order is sustainable fordetermination of income by distinguishing thenature of work contract i.e. Building contract orcase, the Tribunal order is sustainable fordetermination of income by distinguishing thenature of work contract i.e. Building contract or Road contract in view of judgment of jurisdictionalHigh Court in the case of Prabhat Kumar, Sirsa v.CIT (293 of 2008)? 3.Put shortly, the facts necessary for disposal of the presentappeal as mentioned therein are that the assessee is a civil contractor andengaged in the business of construction of roads. He filed his originalreturn on 30.9.2008 for the assessment year 2008-09 declaring total incomeat ` 20,44,670/-. The said return was processed under Section 143(1) of theAct on 31.1.2010. The case was selected for scrutiny and notices underSections 143(2) and 142(1) of the Act were issued along with questionnaire.The assessment was framed by the Assessing Officer vide order dated28.12.2010 (Annexure A-1) under Section 143(3) of the Act at` 98,59,980/- by applying net profit @ 12% of gross receipt of` 8,17,02,906/- after reducing material supplied by the GovernmentDepartment for ` 80,122/-. Feeling aggrieved, the assessee filed an appealbefore the Commissioner of Income Tax (Appeals) [for brevity “the CIT(A)”]. The CIT(A) vide order dated 29.9.2011 (Annexure A-2) dismissedthe appeal. Against the order of the CIT(A), the assessee filed an appealbefore the Tribunal. The Tribunal vide order dated 24.9.2012 (Annexure A-3) partly allowed the appeal by directing the Assessing Officer to makeaddition on account of net profit rate @ 6%. Hence, the present appeal bythe revenue. -4- Tribunal for a fresh decision on merits after scrutiny of all material placedbefore it by the assessee in accordance with law. It had also been noticedtherein that such observation would not preclude the Revenue from movingany application for revival of the present appeal since the liberty for thesame was granted by this Court while permitting the appeal to bewithdrawn. 7.In view of the above, after hearing learned counsel for theparties, the appeal is allowed and the order dated 24.9.2012 (Annexure A-3)passed by the Tribunal is set aside. The matter is remanded to the Tribunalto adjudicate the issue on merits after affording an opportunity of hearing tothe parties in accordance with law.