9911796707
TMI Blog2012 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; "the assessee firm vas engaged in the business of developing and promoting. During the course of hearing, Sri Chakraborty, A/r of the firm, furnished various information as and when called for, however, he did not produce the books of accounts whenever called for. He was requested to produce books of accounts during the course of hearing on 14- 10-09, 1611-09, 25-11-2009 and 14-12-09. But everytime he took the plea of producing the same at the time of next hearing. Finally, during the course of hearing on 22-12-09, he filed a letter stating that the firm was covered by the provisions of section 44AD of the I.T.Act and maintenance of books was not mandatory. It was specifically asked whether the firm was maintaining books. In rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . M/s.OTIS Rs.1,16,000/- -do- 3. Sri Biprodas Banerjee Rs.1,00,000/- -do- 4. Shri Kabir Ali Rs.1,18,000/- -do- 5. Shri Abdul Kadir Rs.65,000/- -do- 6. Shri A.Bhuniya Rs.70,000/- -do- 7. M/s.C.Electric Rs.50,000/- -do- 8. Sri P.K.Sengupta Rs.1,00,000/- -do- 9. Sri Bapi Debnath Rs.93,140/- Professional fees Total : Rs,32,62,140/- The nature of transaction mentioned against the parties mentioned in SI. Nos. 1 to 8 is basically contractual in nature and TDS was required to be made u/s 194C and regarding payments made to Sri Bapi Debnath, who is an Advocate, TDS was required to be made u/s 194J. As the assessee firm had failed to deduct tax on the payments made as referred to above, provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious year under consideration. This fact has not been disputed by the A.O. also in the assessment order. Thus the amount of Rs. 65,45,500/- cannot be considered gross receipt paid or payable to the assessee for the previous year under consideration. Therefore, the gross receipt of the assessee for the previous year will be Rs. 19,71,112/- which is related to job contract receipts and which is less than Rs. 40,00,000/-. Since the assessee is engaged in the business of civil construction and its gross receipts for the previous year under consideration are less than Rs. 40,00,000/- therefore, its case is covered by provisions of Section 44AD. If we consider from the angle of section 44AD the assessee has declared net profit of Rs. 1,64,814/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to maintain books of accounts u/s 44AA and audit its accounts u/s 44AB. However, if the assessee has done so it cannot be held against the assessee. Similarly, if the assessee has mentioned certain details about his financial transactions in the return of income on the basis o{ books of accounts maintained by it, it cannot be used as an evidence against the assessee." 3.3. Aggrieved by this now the revenue is in appeal before us. 4. At the time of hearing the ld. DR appearing on behalf of the revenue relied on the orders of AO and submitted that since AO has derived information submitted by assessee himself though the provision of section 44AD of the Act is applicable in the present case. Assessee has violated the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has held that once under the special provision of section 44AD of the IT Act exemption from maintenance of books of accounts have been provided and the presumptive tax at 8% of the gross receipts itself is the basis for determining the taxable income, the assessee was not under obligation to explain individual entry of cash deposits in the bank unless such entries had no nexus with the gross receipts. In the present case though from the details filed by assessee the ld. AO observed that no TDS has been recovered, in our opinion, since assessee has disclosed the profits more than 8% of the gross receipts and there is no dispute in receipt of the gross receipts the addition made by ld. CIT(A) u/s 40(a)(ia) of the IT Act is not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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