TMI Blog2016 (4) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... of net profit rate of 4%, the issue is covered by the Tribunal’s order in assessee own case. Therefore, respectfully following the same, we hold that in the present year also, net profit of the assessee should be assessed at 4% of gross receipt as has been held by the Ld. CIT(A) because we do not find any reason to take a contrary view in the present year. In the present case, we find that initially the Assessing Officer issued notice u/s 142(1) of the Act but the same was not complied with and thereafter, the Assessing Officer issued notice u/s 142(1) again for which part compliance was made by the assessee by appearing before the Assessing Officer along with the copy of cash book and audit report of the assessee firm but the assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Because the learned first Appellate Authority erred in upholding the decision of A.O. of rejection of books of accounts and framing order u/s 144 of the Income tax Act, 1961 2.1 Without prejudice to the above, the learned Assessing Officer having applied the net profit of 8% and the learned first Appellate authority erred in upholding it to the extent of 4%. 2.2 Because the learned first Appellate authority had no warrant to uphold the net profit rate @ 4% of Gross Receipts against 1.84%, returned by the assessee. 3. Because the learned first appellate authority erred in separately adding interest on FDRs to the total income of the assessee. 4. Because the learned first appellate authority erred in separately adding truck income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mated the net profit @ 8% of the gross receipts. 2. The Ld. CIT(A), Faizabad has erred in law and on facts by estimating the net profit @ 4% as against 8% applied by AO on the gross contract receipts relying on the past history of assessee's own case without appreciating the fact that the facts of the present case are totally different from the facts of assessee's case in preceding assessment years and also principles of res-judicata are not applicable under Income Tax Act. 3. The Ld. CIT(A), Faizabad has erred in law and on facts while comparing the past history of assessee's own case without appreciating the fact that the net profit disclosed by the assessee was on the basis of the books of account for the year under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the assessee in P L account was not added separately and in the present case also, even if rate of 4% net profit is applied, the same should not be considered as exclusive of interest and Truck Hire Charges received by the assessee in the present year of ₹ 8,71,002.26 and ₹ 4,87,620/- as credited in the P L account available on page 2 of the paper book. Regarding non allowing of deduction on account of interest and remuneration to partners by invoking the provisions of Section 184(5) of the Act on this basis that the assessment was completed u/s 144 of the Act, it was submitted that even if the assessment is completed u/s 144, Section 184 (5) is not applicable if the assessee can sow that there is some compliance of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit of the assessee should be assessed at 4% of gross receipt of ₹ 11,68,,79,834/- as has been held by the Ld. CIT(A) because we do not find any reason to take a contrary view in the present year. Regarding this contention of Ld. Ld. AR of the assessee that such income computed at the rate of 4% of gross receipt should be inclusive of interest income ₹ 8,71,002/- and truck income of ₹ 4,87,620/-, we find no merit in this contention although this is true that in Assessment Year 2008-09 also, there was interest income of ₹ 3,29,551/- but in the assessment order for that year available on pages 24 to 25 of the paper book, the Assessing Officer applied net profit rate of 7% to the gross receipt in that year of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest and remuneration to the partners is not allowable. Now, we deal with the Tribunal s order cited by Ld. AR of the assessee having been rendered in the case of Surendra Prasad Mishra Vs. ITO (Supra). In this case, it was held by the Tribunal that for the purpose of applying section 184(5) of the Act there has to be complete failure as envisaged u/s 144 and mere non cooperation of the assessee making it difficult to determine the correct income may justify an assessment u/s 144 of the Act but that by itself is not sufficient to assess the firm as an AOP u/s 184(5). In the present case, we find that initially the Assessing Officer issued notice u/s 142(1) of the Act but the same was not complied with and thereafter, the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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