TMI Blog2013 (5) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... rking-out depreciation after computing profit at the rate of 8%, there was no ambiguity or uncertainty. Simply because the assessee himself had declared profit at 8.13% on such parameters, would not permit the Tribunal to change such a directive in exercise of rectification powers. Power of rectification can be exercised for correcting an error apparent on the face of the record and not for reviewing an order. In the present case, decision of the Tribunal to allow depreciation on 8% profit was a conscious decision. Thus such a view could not have been changed in exercise of power of rectification. On this short ground, we are prepared to reverse the Tribunal’s order under challenge. - Tax Appeal No. 1477 of 2011 - - - Dated:- 6-5-2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defective and the CIT(A) agreed with the findings of the Assessing Officer. But 25% of the expenses cannot be disallowed and this line of business profit 17.12% is unachievable, therefore, the CIT(A) has restricted the net profit before salary and interest to partners is estimated @7% as against 5.08% shown by the assessee. We find that the CIT(A) has not taken into consideration any basis for the same. We find that the similar issue had been come up for the Hon ble Rajasthan High Court in the case of CIT vs. Jain Construction co. and ors reported in 245 ITR 527, wherein it has been held that while books of accounts are rejected if the turnover is above Rs. 40 lakhs, the Assessing Officer can take the help of section 44AD for passing assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Tribunal has modified the order of CIT(A) and Tribunal has confirmed the addition of Rs. 5 lakhs and he has also not allowed the depreciation. Therefore, we modify our order and we direct the Assessing Officer to take the net profit at 8% before allowing salary and interest to the partners as fair and reasonable. We therefore confirm the disallowance Rs. 10,98,348/- as against disallowance of Rs. 26,01,574/- made by the assessing officer. We accordingly modify the order and allow miscellaneous petition as indicated above. Order pronounced in the open court at the time of hearing itself i.e. on 21.8.2009. 6. For the purpose of this tax appeal, we frame the following substantial question of law: Whether the Income Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order under challenge. The counsel for the appellant clarified that the assessee would not argue that the estimate adopted by the CIT(A) also should be reduced further. In other words, he would be satisfied with the revenue s appeal before the Tribunal being dismissed without any further benefit to him. 8. In the result, appeal is allowed. Order of the Tribunal dated 21.08.2009 is set aside. Question is answered in favour of the assessee accordingly. It is clarified that resultant effect of this order would be that the revenue s appeal before the Tribunal against the order of the CIT(A) would stand dismissed without any further benefit to the assessee. For all purposes, the order of CIT(A) would prevail. Tax appeal is disposed of accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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