TMI Blog2013 (8) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 22,52,211/- : The Ld. CIT (A) erred in law as well as on the facts of the case in confirming the application of Sec. 145(3) of the Act. The provision so invoked and confirmed by the Ld. CIT (A) being contrary to the provisions of law and facts, the same may kindly be quashed. Consequently the trading addition of ₹ 22,52,211/- may kindly be deleted in full. Alternatively and without prejudice to above 2.2. The Ld. CIT (A) further erred in law as well as on the facts of the case in applying the GP rate of 11.10% as against 10.06% declared by the assessee and 12.50% (wrongly calculated @ 12.55) applied by the A.O. The GP rate so applied and addition so made by the A.O. and partly sustained by the CIT (A) is totally contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institutions. The disallowance so made and confirmed being totally contrary to the provisions of law and facts kindly be deleted in full. 8. ₹ 38,12,369/- : The Ld. CIT (A) erred in law as well as on the facts of the case in not very clearly and specifically allowing a separate deduction on account of sales t4ax payment whereas the refund received are being shown as income in the profit loss account. Therefore, the deduction for sales tax kindly be allowed as separate deduction. 9. The Ld. A.O. erred in law as well as on the facts of the case in charging interest u/s 234A, 234B 234C and 234D and withdraw interest u/s 244A of the Act. The appellant totally denies it liability of charging of any such interest. The interest, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irs. 9. No supporting primary documents for gitti kuttai, gitti bichai. 10. No vouchers for mitti dalai. 11. No vouchers for Morram kuttai and dalai. 12. Consumption of diesel and log book its utilization is not maintained. 13. Consumption of cement and how it has been utilized is not maintained. There is no issue register in respect of raw material. 14. Similarly, in respect of bitumen no issue register and maintained and there is no details as to how, it has been utilized. 15. No details of sublet work receipts and expenses were produced with supporting evidences. After considering assessee s reply, the Assessing Officer recorded a finding that in view of defects, the correct profits in this case cannot be deduced. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessary to estimate income in the manner as provided in section 144 of the Act. This has been so held by Hon'ble Rajasthan High Court in the case of CIT vs. Gotan Lime Khaniz Udyog, 256 ITR 243 (Raj.). The Hon'ble Rajasthan High Court in another case in the case of Malani Ram Jivan Jagannath (2007) 207 CTR 19 (Raj.) has held that the gross profit declared need not be disturbed when the purchases and sales are duly vouched and value of opening stock and closing stock is available. In the present case in appeal, the Assessing Officer has not made honest estimation of income by keeping in view the material available on record, past history of the case, local knowledge and repute of the assessee. The assessment made is arbitrary, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.06% 12.50% 11.10% Appeal Pending NP rate shown is before/subject to interest to bank, interest to the partners and depreciation etc. as per consistent practice followed by both parties. 6. The Jaipur Bench of the Tribunal in a recent case of Mukesh Kumar Jain vs. ITO in ITA No. 1023/JP/2011 by its order dated 29.5.2013 authored by Shri Vijay Pal Rao, Judicial Member, copy placed on record has held as under :- In view of the facts and circumstances of the case, average gross profit rate for earlier years shall be taken as gross profit rate for the year under consideration instead of adopting the highest gross profit rate amongst earlier years. The A.O. is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. After having rejected the accounts, the Assessing Officer, however, applied a net profit rate of 12.5% on the gross contract receipts including those contracts which were sub let. The said net profit rate of 12.5% was subjected to further deduction of depreciation, remuneration, interest to partners, interest paid to bank and other financial institutions. The Ld. CIT (A), however, corrected this rate to 11.01% by applying average net profit rate of two preceding years only i.e. assessment years 2007-08 and 08-09. He, however, did not act reasonably as the peculiar facts of assessee s history of past several years, sustenance of adhoc addition only of ₹ 2.50 lacs in assessee s appeal for A.Y. 2008-09, increase in turnover in assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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