IN INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. No: 969/AHD/2013 (Assessment Year: 2006-07) Asstt. Commissioner of V/S Relogstics (Ahmedabad) Income Tax, Circle-5, Pvt. Ltd. Court House, 3rd Ahmedabad floor, L.T. Marg, Dhobi Talao, Mambai-400002 (Appellant) (Respondent) PAN: AACCR3224Q Appellant by : Shri Prasoon Kabra, Sr. D.R. Respondent by : Shri S.N. Soparkar, A.R. ORDER Date of hearing : 23 -08-2016 Date of Pronouncement : 16 -09-2016 PER MAHAVIR PRASAD, JUDICIAL MEMBER: 1. This appeal by Revenue is directed against order of Ld. CIT(A)- XI, Ahmedabad dated 03.01.2013 pertaining to A.Y. 2006-07 and has raised following grounds:- 2 ITA No. 969/Ahd/2013 . A.Y. 2006-07 1.The ld. CIT(A) has erred in law and on facts in quashing notice issued u/s. 148 of Income tax Act. 2. ld. CIT(A) has erred in law and on facts in quashing assessment order u/s. 143(3) r.w.s. 147 determining total income of Rs. 44,02,475/-. 2. Facts of case are that assessment u/s. 143(3) of IT Act was completed on 11.12.2008 by making estimating net profit of assessee at 1.5% of all receipts of income after rejecting books of accounts. It was seen from records that, while estimating Gross Profit at 1.5% of total income of Rs. 24,81,46,062/-, sum of Rs. 25,20,265/- of miscellaneous income was also included along with sales receipts of Rs. 24,56,25,797/-. notice u/s. 148 of IT Act dated 30.03.2011 was issued to assessee after duly recording reasons for reopening. assessee, in its reply dated 02.05.2011 requested that original return may treated as return filed in response to notice u/s. 148. A.O. 3. assessee vide this office letter dtd. 07.09. 2011 was required to explain amount of miscellaneous income of Rs 25,20,265/- should not be excluded from total receipts of Rs 24,81,46,062/- and net profit at 1.5% be recalculated. assessee, vide its reply dtd. 20.09.2011 submitted that miscellaneous income consists of various receipts such as: Detention charges 273351 Excess Provisions Written Back 28658 Multipoint Delivery Charges 30050 Other Direct Income* 1955667 Transhipment Charges 18480 Interest on IT Refund 80870 Service Charge 2520265 3 ITA No. 969/Ahd/2013 . A.Y. 2006-07 *0ther' Direct Income comprises of Bills raised to Customers towards freight but booked in other direct income and Munshiana Income as per trade practice deducted from lorry owners hire charges payment. 4. assessee further submitted that above income (except interest on IT refund) are in nature of business income earned in course of business activity during year under consideration, and therefore while estimating gross profit of business income, income related to integrated business activity of transportation. Therefore, assessee submitted their business related other income cannot be excluded from total income for estimating Gross Profit. 6. submissions of assessee have been carefully considered. total receipts of assessee includes sales and miscellaneous income. Miscellaneous Income includes various receipts mentioned in para 2 above. On perusal of details of miscellaneous income given by assessee, it is seen that these are not receipts from transportation business of assessee, but are receipts which have accrued / received by assessee, which are incidental to main business of assessee. These are receipts which are in nature of other income, which can at best be treated as incidental income. 7. Under said order, assessee preferred statutory appeal before ld. CIT(A). 8. While allowing appeal of assessee, ld. CIT(A) held that notice u/s. 148 was held to be invalid and methodology adopted by A.O. was not tenable on merits also. In impugned order dated 4 ITA No. 969/Ahd/2013 . A.Y. 2006-07 30.09.2011 and original assessment order dated 11.12.2008, A.O. had applied net profit rate of 1.5% on total receipts filed by assessee and same was referred under Rule 18(6). 9. On perusal of record, it was revealed that Hon ble ITAT in ITA No. 4233/Ahd/2007 and ITA No. 4339/Ahd/2007 dated 13.08.2010 had set aside assessment order for assessment year 2004-05 to file of A.O. In compliance of Direction of Hon ble ITAT, A.O. had completed assessment order u/s. 143(3) r.w.s. 254 on 29.12.2011. After verifying books of accounts and other evidences, A.O. accepted returned loss of Rs. 28,14,941/- and Hon ble ITAT had set aside assessment order for assessment year 2005-06 and A.O. in assessment year 2008-09 had accepted returned loss of Rs.1,48,584/- vide assessment order completed u/s. 143(3) on 26.11.2010. Therefore, it clearly shows that estimation of net profit in current assessment year is apparently not tenable as in year when for first time this issue was raised, A.O. had accepted profits as declared by appeallant but after current year A.O. is accepting returned income on similar facts. Therefore, appeal was allowed by ld. CIT(A). 10. We have gone through relevant record and impugned order and we find that reason recorded by A.O. before issuing notice u/s. 148 dated 30.03.2011 does not mention about any new information available with A.O. Thus, there is change of opinion without any fresh information and reopening of assessment is liable to be quashed and reliance in this regard is placed in cases of CIT vs. Clagget Brachi & Co. Ltd., 177 ITR 409 (SC), S B (House 5 ITA No. 969/Ahd/2013 . A.Y. 2006-07 and Land) Pvt. Ltd. Vs. CIT (1979) 119 ITR 785 (Cal.) and CIT vs. Kelvinator of India Ltd. 320 ITR 561 (SC). 11. In view of above discussion, appeal of Revenue is dismissed. Order pronounced in Open Court on 16 - 09- 2016. Sd/- Sd/- (PRAMOD KUMAR) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: True Copy Rajesh Copy of Order forwarded to:- 1. Appellant. 2. Respondent. 3. CIT (Appeals) 4. CIT concerned. 5. DR., ITAT, Ahmedabad. 6. Guard File. By ORDER Deputy/Asstt.Registrar ITAT,Ahmedabad Asstt. Commissioner of Income-tax, Circle-5, Ahmedabad v. Relogstics (Ahmedabad) Pvt. Ltd