TMI Blog2013 (4) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order dated 25.5.2012 passed by the Income Tax Appellate Tribunal, Lucknow Bench 'B', Lucknow [hereinafter referred to as the Tribunal ] in I.T.A. No. 304/LKW/2011 for the Assessment Year 2005-2006, whereby the Tribunal has dismissed the appeal. 3. Shorn off unnecessary details the facts of the case are as under : Pragati Engineering Corporation-appellant is a partnership firm and is engaged in the business of civil contractors in district Raibareli. During the Assessment Year 2005-2006, the appellant had received gross payment from various Government department to the tune of ₹ 1,33,76,545/-, which was audited by the Chartered Accountants on the basis of books of accounts. Thereafter, on 30.10.2005, appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally washed away and no part of the books of accounts was in a position to be produced before the Assessing Authority concerned on the grounds that books of accounts were kept in an open area in a jute bag. In these backgrounds, the appellant had filed a written submission dated 20.11.2007 before the Assessing Authority, stating therein that in the absence of the books of accounts, the assessee is agreeable for estimation of income and agreed for a net profit of 8% of the gross receipts. 5. On receipt of the said written submission dated 20.11.2007, the Assessing Authority observed that the turnover of the assessee was beyond the prescribed limit of ₹ 40,00,000/-, whereby he has to maintain book and, therefore, adoption of flat rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue and concurred his opinion with the Accountant Member vide order dated 14.5.2012 and as such, a separate order was passed by the Bench on 25.5.2012, dismissing the appeal. Hence the instant appeal. 9. Sri Pradeep Agarwal, learned Counsel for the assessee/appellant submits that Section 44 AD was brought on the statute book only with an intention that in case of a civil contractor, who does not maintain books of accounts, then, he shall be assessed by applying a net rate of 8%. In the present case, though the books of accounts are maintained, the tax audit report was submitted but the Assessing Authority erred in not applying net rate of 8% under Section 44 AD of the Act as offered by the appellant. 10. Sri Agarwal further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority. The appellant had placed a copy of the said judgment before the Tribunal but the same has neither been considered nor it disagreed with the aforesaid decision. Thus, the impugned order is liable to be set-aside. 12. Per contra, Sri Prashant Kumar, learned Counsel for the respondents submits that the tribunal after hearing the parties and going through the material on record has rightly dismissed the appeal of the assessee. While dismissing the appeal, the Tribunal has recorded findings of facts and laws relating to the present facts and circumstances of the case in detail. Thus, the appeal is liable to be dismissed. 13. We have heard learned Counsel for the parties and perused the records. 14. Section 44AD of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entries made on the books of accounts erased on account of being placed/kept in a jute bag in an open area and, as such, the assessee agreed to assess 8% net rate, in the absence of books of accounts. The Assessing Authority rejected the plea of the assessee on the grounds that the assessee failed to submit the books of accounts. It is not in dispute that accounts of the assessee was audited by the Chartered Accountant on the basis of books of accounts and on that basis, return of income was filed by the assessee, showing income as ₹ 4,43,630.00. It is also not in dispute that the assessment under Section 143 (3) of the Act was completed and the books was not rejected under Section 144 of the Act. Therefore, the auditors report can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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