MUNSHI HUSSAIN Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) HEARD Mr. Poddar on behalf of the petitioner and Mr. Vidyarthi on behalf of the respondents.

(2.) MR . Vidyarthi has taken a preliminary objection regarding maintainability of this case on the ground of limitation. We find that the grounds taken by the petitioner in his petition filed under Section 5 of the Limitation Act have not been controverted by the revenue by filing any rejoinder to that. As such, we condone the delay in filing this case and allow the limitation petition.

(3.) UNCONTROVERTED fact of the case are that in relation to accounting year, 1989 -90 the Assessing Officer (respondent no.4), considering the stands taken by the parties, held that the work was executed by the petitioner -assessee himself in his individual capacity and, as such, income therefrom was included in his assessment. Total income was determined and clubbed both the heads at the hands of the petitioner and estimated the ratio of profit @ 10% on the said gross receipt. This order is annexure 2 to this application. Against that order the petitioner moved the Commissioner of Income Tax (Appeals), Respondent no.3, Ranchi which was registered as I.T. Appeal No. 100/Ran/1 1990 -91. By order dated 25.2.92, while agreeing with the submissions of the petitioner that he was eligible for 25% of the share income from the unregistered firm, held that the genuineness of the firm of M/s Munshi Hussain was proved and thus it was not necessary to make assessment of the firm as a protective measure and. substantive assessment should be made at the hands of the firm. Respondent no.3 further opined that there was no justification in inclusion of the income of the firm in the hands of the petitioner. This order is annexure 3 to this application. Being aggrieved by the said appellate order, respondent no. 1 filed an appeal before the Income Tax Appellate Tribunal giving rise to I.T. Appeal No. 398(Pat)/92. The petitioner filed his cross objection and respondent no.1, by order dated 13.3.95, disposed of the appeal reversing the conclusion and direction of the Respondent no.3 in relation to the execution of the contract work and upheld estimation of net profit at 10% in relation to contract work as found by Respondent no.4. Cross objection filed by the petitioner was also dismissed. From the order of respondent no.1 it appears that the Tribunal perused the entire records of the case and has come to the conclusion that respondent no.3, the Commissioner of Income Tax (Appeals) committed an error in coming to his conclusion. It also observed that no evidence was placed on records or before the Tribunal which could show that the firm, M/s Munshi Hussain, was actually in existence as a real firm. The Tribunal also took into consideration the fact that the contract was executed by the petitioner -assessee himself and the same was allocated to him. Not only that even the T.D.S. Certificate issued by the Company was in the name of the petitioner -assessee and not in the name of the unregistered firm of M/s Munshi Hussain and the petitioner could not satisfy the learned Tribunal (respondent no.1) and so it reversed the finding of respondent no.3 and agreed with that of respondent no.4. The said order of the Income Tax Appellate Tribunal is annexure 6.