TMI Blog2016 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... cer to estimate the income on the basis of past history of the case, general knowledge about civil contract or by comparing the identical case. As all the civil contract has unique type of contract, which cannot be compared squarely. Therefore, the ld Assessing Officer has to consider the past history of the case including the decision of the Coordinate Bench. As submitted by the ld AR of the assessee, the Coordinate Bench has confirmed the NP rate @ 7% to 7.2% in preceding year. Further the discrepancies found out during the course of survey, has been explained by the assessee as no separate addition has been made by the Assessing Officer. The ld Assessing Officer applied NP rate @ 8.9% subject to depreciation. He has not allowed the interest paid to the third party, which has been allowed by the ld CIT(A) and not challenged before us by the revenue. Therefore, we find NP rate applied by the ld CIT(A) @ 7.5% is reasonable. Accordingly, we uphold the order of the ld CIT(A). - Decided in favour of assessee. - ITA No. 419/JP/2015 - - - Dated:- 28-4-2016 - SHRI T.R.MEENA, AM SHRI LALIET KUMAR, JM For The Revenue : Shri Kailash Mangal (JCIT) For The Assessee : Shri P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) in her order in the case of assessee for A.Y. 2009-10. The assessee filed reply vide letter dated 21/2/2013 which has been reproduced by the Assessing Officer on page 2 to 6 of the assessment order. After considering the assessee s reply, the ld Assessing Officer held that the assessee had himself admitted in reply that complete bills/vouchers could not be produced as the same were lying at work site and same were misplaced. He had further admitted that it was not possible for him to maintain the proper record and the expenses are not vouched or supported by self made vouchers. There was a survey U/s 143(3A) of the Act on 14/7/2011. In survey proceedings, it was found that the assessee was not recording all his transactions in his books of account. During the survey proceedings, various incriminating documents were found and impounded. As per Annexure-A-1, which was an Ultra-tech Cement diary, there were some entries which depicted cash payment by the assessee to sub-contractor Shri Birbal Singh Shoora. During the survey proceedings, the assessee was inquired about the nature of transactions mentioned in the diary and to verify the same from his books of account. The state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Being aggrieved by the order of the learned Assessing Officer, the assessee carried the matter before the learned CIT(A), who had allowed the appeal partly by observing as under:- 3.1.2 I have duly considered AO's contention and appellant s submission, perused the materials on record, duly considered factual matrix of the case and also applicable legal position. Here there is no dispute about the rejection of books of accounts u/s 145(3) of the Act. On perusal of the past history of the assessee, it is seen that NP rate has been fluctuating year after year. Hon'ble ITAT Jaipur Bench in assessee s own case has confirmed the NP rate in AY 2005-2006 @ 7.2% , in A.Y. 2006-07 @ 7.1%, in AY 2007- 2008 @ 7.2% and in AY 2008-2009 @ 7% subject to depreciation interest [ Ref: pg 11 para 7 of ITA No 697 776/JP/2011 ]. The facts of the present case are similar to the earlier years. Therefore, following past history and considering the facts of the case, I find it proper and reasonable to apply NP rate of 7.5% subject to depreciation and interest. From this, no further deduction in respect of JV charges will be allowed as the same has been considered while applying NP ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of previous returns by and assessment of the assessee and all other matters which he thinks will assist him in arriving at a fair and proper estimate and though there must necessarily be guess work in the matter, it must be an honest guess work. The ld Assessing Officer applied NP rate @ 8.9% arbitrarily and without considering the assessee s own past history. He summarized the past history of the case as under:- A.Y. Gross Contract Receipts N.P. rate declared by assessee (before dep. and interest) N.P. rate applied by A.O. (subject to depreciation) N.P. rate applied by CIT(A) and upheld by ITAT (subject to depreciation and interest) 2010-11 (Present appeal) 76,91,42,008 6.76% 8.9% 7.5% by CIT(A) 2009-10 1,20,09,79,663/- 6.46% 8% 8.89% by CIT(A) 7% by ITAT (refer order dated 24/7/2015 in ITA No. 815 and 869/JP/2012, para(order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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