TMI Blog2016 (3) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- and provisions of 44AD of the IT Act would automatically apply. Since Assessee has declared more income than required under provisions, A.O should have accepted the same. The benefits provided to small time Assessees / small business persons cannot be denied by A.O. The order of the Ld. CIT(A) also was without considering the grounds raised before him. In view of that, in the interest of justice, I set aside the orders of the A.O and CIT(A) and restore the assessment to the file of A.O to be redone, after giving due opportunity to Assessee. A.O can advise Assessee to file a proper form of return if required, before completing the assessment. - Decided in favour of assessee for statistical purposes. - ITA No. 1736/Hyd/2016 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Assessee has wrongly uploaded the data in ITR-II instead of ITR-IV. It is evident from the return as the transactions pertaining to gross receipts at ₹ 16,58,500/- and expenses at ₹ 14,17,500/- was shown in column-I under the head other sources as ITR-II pertains to individuals, not having income from business or profession. In the scrutiny assessment completed, A.O asked for details of expenses. Assessee submitted that the form was wrongly used and Assessee was a small time business person, having turnover of ₹ 16,58,500/- and income should have been assessed under 44AD/44AF of the IT Act, and as the income declared at ₹ 2,41,100/- being more than what was prescribed, the same should be accepted. The A.O did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Sec 44AD / 44AF read with Rule 6DD (e)(i) and ignoring the common phenomenon that without purchase there can be no sale. 04. The AO further erred in law by ignoring the mandatory, provisions of section 143(2) read with 145(3) by not i5suing show cause notice proposing the disallowance is against the provisions of Income Tax Act, 1961. 05. The appellant crave to submit that all the facts, contentions and case laws mentioned in the statement of facts accompanied these grounds, shall be treated as part and parcel of these grounds and shall be dealt with. 3.1 However, Assessee received an order from the CIT(A) dated 30-09-2016 disposing of the appeal ex-parte, in which Ld. CIT(A) not only considered dismissal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant received only one notice posting the hearing to 21/09/2016 through speed post on 18/09/2016 without any sufficient time to approach the counsel. Subject to the above, even on merits 03. The CIT(A) and has not appreciated in proper perspective the explanation submitted by the appellant while making the alleged addition before AD, during the course of assessment proceedings that the return was filed mistakenly by tax return preparer in ITR 2 instead of ITR 4 and the claim was made U /s 44AD instead of eligible claim U /s 44AF and income disclosed is much higher than the above mandatory provisions and without bringing any substantive material evidence is totally unjustified and un warranted both in law and facts. 04. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions, I am of the opinion that the orders of the A.O and CIT(A) cannot be sustained as such. It is obvious that Assessee has used a wrong form and also reflected the income from business under the head other sources . It is the duty of the A.O to advice the Assessee when certain procedural / technical mistakes were committed by Assessee. The A.O should not take advantage of mistakes committed by the Assessee, while discharging statutory duties. Assessee s entire turnover, as accepted by the A.O, was only ₹ 16,58,500/- and provisions of 44AD of the IT Act would automatically apply. Since Assessee has declared more income than required under provisions, A.O should have accepted the same. The benefits provided to small time Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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