TMI Blog2015 (8) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, it is found that bank account in SBBJ, Gangapur City, SBBJ, Sawai Madhopur and FDR with PNB, Gangapur City has been disclosed by the assessee. The ld CIT(A) has considered these bank accounts and no adverse inference has been drawn by him except the addition of ₹ 9,026/-. This Bench has confirmed the addition @ 9% C.P., therefore, no addition is required to be made on account of any discrepancy in the bank account. As held in the case of CIT Vs. G. K. Contractor (2009 (1) TMI 840 - RAJASTHAN HIGH COURT) wherein held that when net profit is estimated by the Assessing Officer by rejecting the book result U/s 145(3) of the Act, no separate addition can be made on account of cash creditor, which is squarely applicable in the case of the assessee. As we have already decided the net profit @ 9% in the case of assessee, therefore, other additions cannot be made. - Decided against revenue. FDR interest treated as income from other sources - Held that:- Undisputed fact revealed from the order of the ld CIT(A) and form No. 35 that this ground has not been raised before the ld CIT(A). Further before us, no application for additional ground has been made by the AR of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative before the Assessing Officer but no required details were filed on give date. Again on 22/02/2010, notice U/s 143(2) and 142(1) were issued with detailed questionnaire and case was fixed for 04/3/2010. In response to this notice, neither assessee appeared nor any reply filed before him. On 22/07/2010, notice U/s 143(2) was again issued to the assessee and case was fixed for hearing on 03/8/2010. There was no response from the assessee on this date also. Again the case was refixed on 17/08/2010 through notice U/s 143(2) and case was refixed for 17/08/2010. The assessee s AR alongwith assessee s son were appeared but they again sought adjournment for 26/8/2010. On 26/08/2010 both the persons again appeared and partly filed information before the Assessing Officer and case was adjourned for 02/9/2010. On 02/9/2010 nobody appeared from the side of the assessee and case was refixed for 28/09/2010 by issuing notice U/s 143(2) of the Act and case was fixed for 06/10/2010. On 06/10/2010, the AR of the assessee Shri Rahul Dev Sharma and Shri Arun Kumar Agarwal, son of the assessee appeared and filed G.P. chart for last three years and details of raw material purchased. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered reasonable. 4. Now both are in appeals before us. The ld AR of the assessee has submitted that the assessee is a civil contractor and having work for government department like PHED and Marketing Board and has declared a net profit rate of 5.66% on the gross receipt of ₹ 1,65,29,950 totaling to ₹ 9,35,595/-. The books of account are subject to audit U/s 44AB and the necessary report of the tax audit was also submitted before the ld A.O.. During the course of assessment proceedings, all the possible details available with assessee were submitted as asked for by the ld Assessing Officer in the shape of copy of bank statements, copy of FD account, details regarding household withdrawals and list of liabilities for the year under appeal and also the details regarding purchase of raw materials. However, certain details such as books of account, stock register could not be produced by the assessee for the reason of an ongoing dispute with the accountant of assessee who is in the possession of assessee s books of account. This fact was duly submitted before the ld A.O. alongwith an affidavit in support thereof which is part of the record and duly acknowledged by ld A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter. Therefore, the assessee s reply is beyond truth. Further as per audit report, the assessee valued closing stock on estimate basis. He further argued that in preceding year, GP rate was 18.81%, which has been gone down to 11% during the year under consideration. Similarly, the net profit in preceding year was 9.1%, which has also gone down to 5.66%, the assessee has not explained any reason. Therefore, order of the Assessing Officer may please be confirmed. 6. We have heard the rival contentions of both the parties and perused the material available on the record. As per audit report, the assessee maintained books of account on computer. However, the assessee had claimed that books were with the accountant, who was not in talking terms with the assessee due to dispute with them. The assessee only filed an affidavit before the A.O. that the assessment proceedings initiated by the Assessing Officer by issuing first notice in the month of September, 2009 and was completed on 28/12/2010. The assessee filed an affidavit before the Assessing Officer on 06/12/2010 and agreed to assess the net profit @ 8% on total receipts. It is also undisputed fact that the assessee s G.P. as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who has partly confirmed the addition by observing that most of the entries were transfer entries from assessee s other bank account. Few entries related to contractual receipts, two entries of ₹ 3.00 lacs and ₹ 2.00 lac related to cheques, which were not cleared. Out of remaining entry of ₹ 9026/- related to FDR interest and entry of ₹ 1,80,000/- related to cash deposited. The interest of FDR amounting to ₹ 9026 is liable to be taxed under the head income from other sources. Therefore, he confirmed the addition of ₹ 9,026/-. 9. Now the revenue is in appeal before us. The ld DR has vehemently supported the order of the Assessing Officer and argued that before the Assessing Officer, the assessee has not submitted any reply in response to credit entry made in the bank account maintained with PNB. The ld CIT(A) has also accepted the assessee s argument and evidences even without providing any opportunity to the Assessing Officer, therefore, the ld CIT(A) was not justified in deleting the addition of ₹ 3,99,086/-. 10. At the outset, the ld AR of the assessee has submitted that the ld Assessing Officer had not provided any opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he made addition of ₹ 7,98,000/- in the total income of the assessee. 13. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had allowed the appeal by observing that the assessee had disclosed net profit of ₹ 9,35,596/- @ 5.66% C.P. as against this he confirmed the addition at ₹ 14,87,697, which resulted in net addition of ₹ 5,61,126/-. There was cash withdrawal from the bank account of the assessee and net addition upheld by the ld CIT(A) is also available at ₹ 5,61,126/- for cash deposit made by the assessee. Therefore, he gave telescopic benefit to the assessee and addition made by the Assessing Officer at ₹ 7,98,000/- was deleted. 14. Now the revenue is in appeal before us. As already discussed in ground No.2 of the revenue s appeal i. E. in preceding paras that no addition can be made when net profit rate applied in case of contractor. 15. The ground No. 2 of the assessee s appeal is against wrongly considering FDR interest as income from other sources. The assessee has disclosed FDR interest at ₹ 1,00,174/- in the computation of income. This ground has not been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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