Gujarat High Court
Commissioner vs Patel on 28 March, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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TAXAP/1634/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1634 of
2009
=========================================================
COMMISSIONER
OF INCOME TAX (CENTRAL) - Appellant(s)
Versus
PATEL
DEVIJIBHAI VAGHIJIBHAI - Opponent(s)
=========================================================
Appearance
:
MR
MR BHATT, SR. ADVOCATE with MRS MAUNA M BHATT
for
Appellant(s): 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 15/03/2011
ORAL
ORDER
(Per : HONOURABLE MS JUSTICE SONIA GOKANI)
1. The Revenue is in appeal challenging the order of the Tribunal dated 23.01.2009, seeking to raise following substantial questions of law:
"[A] Whether on the facts and circumstances of case the Appellate Tribunal is justified in not appreciating the fact that burden lies on the assessee to substantiate his claim of expenditure?
[B] Whether on the facts and circumstances of case the Appellate Tribunal is justified in directing the Assessing Officer to apply net profit rate of 3.5% thus restricting the addition of Rs.7,93,759/- as against the total addition of Rs.50,64,075/- as assessee failed to produce relevant vouchers / bills?
[C] Whether on the facts and circumstances of case the Appellate Tribunal were justified in not considering the decision which were relied by the Assessing Officer in the assessment order i.e. CIT Vs. La Medica 250 ITR 575(Delhi) and CIT Vs. Motor General Finance Ltd. 254 ITR 449(Delhi)?
[D] Whether on the facts and circumstances of the case and in law, the findings of the Appellate Tribunal are perverse in as much as the Appellate Tribunal has arbitrarily exercised their discretion based on irrelevant facts and ignoring decisions i.e. CIT Vs. La Medica [250 ITR 575] (Delhi) and CIT Vs. Motor General Finance Ltd. 254 ITR 449 (Delhi)?"
2. Though, four different questions are presented before this Court, the issue is common.
3. The assessee is a firm of Civil Contractors. It has undertaken several civil contract works. For assessment year 2004-05, the assessee filed returns, declaring income of Rs.12,49,690/-. The Assessing Officer found that in the year under consideration, the assessee's net profit was reduced from 3.4 per cent to 2.11 per cent. The Assessing Officer framed assessment on 28.12.2006 and assessed income of the assessee at Rs.66,76,020/-. The assessee carried the issue in appeal. CIT Appeals deleted certain additions and eventually directed the Assessing Officer to adopt net profit rate at 3.11 per cent as against 2.11 per cent shown in the Books of Accounts.
4. The Revenue carried the issue in appeal. The Tribunal directed the Assessing Officer to adopt net profit at the rate of 3.5 per cent as against 3.11 per cent and made further addition of Rs.2,22,307/-, as compared to the order of the CIT Appeals. The Revenue carried the issue before this Court.
5. Heard learned Counsel for the Revenue and perused the papers on record. It is true that the order passed by the Tribunal does not give any elaborate reasons for modifying the order of the CIT Appeals, by dismissing further prayers of the Revenue. In an appropriate case, we might have been persuaded to remand the proceedings, after hearing the assessee on such grounds. However, in the present case, we find all the issues are purely factual in nature. CIT Appeals as well as the Tribunal, on the basis of evidence on record, sustained certain additions. Eventually, profit margin of the assessee was worked out at 3.5 per cent of the total turn over, as against the previous profit margin of 3.4 per cent. No interference is, therefore, called for.
6. In the result, this tax appeal fails and is DISMISSED, accordingly.
(AKIL KURESHI,J.) (Ms. SONIA GOKANI,J.) Umesh/ Top