The Commissioner Of Income Tax v. Yogesh K. Thakkar

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1373 OF 2008 ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1373 OF 2008 The Commissioner of Income Tax ... Appellant The Commissioner of Income Tax ... Appellant Versus Yogesh K. Thakkar ... Respondent Mr.Abhay Ahuja for the Appellant. Ms.Asifa Khan for Respondent. CORAM: F.I. REBELLO, &R.S. MOHITE, JJ. CORAM: F.I. REBELLO, & R.S. MOHITE, JJ. DATED: MARCH 03, 2009 DATED: MARCH 03, 2009 DATED: MARCH 03, 2009 P.C. P.C. . The Revenue is in appeal on the following questions : "(1) Whether on the facts and in the circumstances of the case and in law the Hon’ble Tribunal was right in deleting the addition made by the Assessing Officer of Rs.3,67,500/-in Assessment Year 1990-91 and thereby disregarding the method of computation of income applied by the Assessing Officer u/s. 145(2) of the Income Tax Act, 1961 ignoring the fact that the assessment had been made holding Rs.3,67,500/- as the income from business under section 68 of the Income Tax Act, 1961 in the absence of books of account and further continued non-corporation of the assessee to explain alleged cash receipts treated as cash credits in the relevant accounting Year in appeal? (2) Whether on the facts and in the circumstances of the case and in law the Hon’ble Tribunal while adjudicating upon the appeal for assessment year 1990-91 was right in changing altogether the method of assessment of income from that made by the A.O. (as provided in section 145(2) of the Income Tax Act, 1961) to that of "project completion method" for determining the income of the assessee for assessment year 2001-02 which issue never arose from the Assessing Officer’s order? (3) Whether on the facts and in the circumstances of the case and in law the Hon’ble Tribunal was right in not adjudicating upon the issue of acceptance of additional evidence in the form of copies of return of assessment year 1989-90 and 1990-91, chart showing receipts from sale of flats etc. etc. by the CIT (Appeals) from the assessee during the course of appellate proceedings for Assessment Year 1990-91?" . The submissions on behalf of the learned counsel for the revenue is that as the assessee was not having or maintaining the books in terms of any accounting system, it was open to the A.O. to have assessed the assessee as done by the A.O. Reliance is placed for that purpose in the judgment of this court in National Plastic Industries Versus Income . On the other hand on behalf of the assessee, the learned counsel submits that the assessee who was in the business of construction has followed the project completion method. The project as submitted earlier could not proceed with in view of the civil suit and interim orders passed therein which finally were settled pursuant to consent terms that were filed between the parties. For the assessment year 2001-2002 the assessee has offered the said income from the project. . We have heard the learned counsel for both the parties. In so far as judgment in National Plastics Industries (supra) is concerned, it is not a case where there was no accounting system but a case where there were deficiencies in the books of accounts. It is in that context that the learned Bench of this court was pleased to hold that the books of accounts are not properly maintained and as they suffered from deficiencies, the Assessing Officer was justified in computing the income on the reasonable basis in a proper manner. It was not a case where the project completion method was in issue. . In the instant case, the appeal preferred before 2001-2002 the assessee has offered the said income from the project. . We have heard the learned counsel for both the parties. In so far as judgment in National Plastics Industries (supra) is concerned, it is not a case where there was no accounting system but a case where there were deficiencies in the books of accounts. It is in that context that the learned Bench of this court was pleased to hold that the books of accounts are not properly maintained and as they suffered from deficiencies, the Assessing Officer was justified in computing the income on the reasonable basis in a proper manner. It was not a case where the project completion method was in issue. . In the instant case, the appeal preferred before the I.T.A.T. was for the assessment years 1989-90 and 1990-91. In so far as the assessee is concerned, the appeal was in respect of rejection of the claim of the appellant who followed the project completion method. The learned tribunal noted that while considering the appeal filed by the Revenue, it had considered the issue inasmuch as that the assessee had declared the profit and loss in the transaction of building soon after the consent terms were filed and completion of project returns were filed for the assessment year 2001-02. . Once the assessee has offered the income based on project completion method, in our opinion, it is not possible to find fault with the reasonings adopted by the tribunal. The learned counsel for the assessee has placed before us the zerox copies of the returns for the assessment year 2001-02 as filed. . Considering the above, the question of law as framed would not arise. Consequently appeal dismissed. (R.S. MOHITE, J.) (R.S. MOHITE, J.)(F.I. REBELLO,J.) (R.S. MOHITE, J.)(F.I. REBELLO,J.) (F.I. REBELLO,J.)