9911796707
TMI Blog2020 (11) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... s determine at Rs. 9,92,880.00 is highly unjustified in the facts and circumstances of the case. 2. That in any view of the matter the learned CIT (appeal) was wrong in passing ex-party order without providing reasonable opportunity to the assessee hence the order is not speaking order in the eyes of law. 3. That in any view of the matter the assessment is illegal and without jurisdiction in so far as within 12 months there was no service of notice under section 143 (2) of the Act which is mandatory requirement of the Act, hence the assessment is liable to be annulled. 4. That in any view of the matter the gross receipt as declared by the appellant is true and correct which was estimated by the Assessing Officer at Rs. 1,24,06,975.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the validity of assessment order passed by the Assessing Officer for want of a valid notice u/s.143(2) of the Income Tax Act [Act]. At the time of hearing the Ld.AR of the assessee has not pointed out how the notice issued by the Assessing Officer u/s.143(2) of the Act on 25-08- 2009 is invalid. Further, the assessee has participated in the assessment proceedings in pursuant to the notice u/s.143(2) of the Act as well as notice u/s.142(1) of the Act. Therefore, when this objection was not raised by the assessee before the authorities below and not disputed the service of notice issued u/s.143(2) of the Act, then in view of the provisions of Section 292BB of the Act, the assessee cannot be allowed to dispute the service of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned ex-parte order. 5.3. Before the Tribunal, the Ld.AR of the assessee has submitted that the Assessing Officer has made an addition of Rs. 15,58,492/- to be the gross receipts of the assessee, without considering the fact that the said amount is part and parcel of the total receipts of Rs. 59,70,453/- received from M/s.Nagarjun Construction Co., against which TDS of Rs. 67,653/-, was deducted and had been shown in the return of income. Ld.AR has further submitted that the assessee has explained this fact during the assessment proceedings, however, the Assessing Officer has ignored the facts pointed out by the assessee. Thus, the Ld.AR has submitted that the said addition of Rs. 15,58,492/- in the gross receipts of the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agarjun Construction Co. He has further submitted that the CIT(A) has given as many as opportunities to the assessee, but nobody has attended the proceedings before the CIT(A) and accordingly, the CIT(A) was having no option but to pass an ex-parte order. He has further contended that having considered the fact that the assessee has not accounted the product receipts in the books of accounts as well as other discrepancies, the books of accounts of the assessee were rejected by the Assessing Officer. Once the books of accounts of the assessee were rejected, the income of the assessee was required to be estimated on some reasonable basis. The Assessing Officer has applied the Net Profit @10%, which is very reasonable and proper. He has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 145(3) r.w.s. 144 of the Act, by applying some reasonable and proper criteria. So far as the rejection of books of accounts and estimation of the income, it is a natural consequence while framing the assessment after invoking the provisions of Section 145(3) of the Act. However, the mere rejection of the books of account would not is so facto result an addition if the profit declared by the assessee is either in the line with the past history or better than the past history of profit declared by the assessee. The Gross Profit and Net Profit declared by the assessee in the preceding year is a reasonable and proper guidance for estimating the income after rejection of books of accounts. The Assessing Officer has applied Net Profit @10% befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70,453/-. However, this is not the fact appearing from the certificates issued by M/s.Nagarjun Construction Co. Though the payment was not received by the assessee during the year under consideration, however, once the said payment was accrued and become due in the year under consideration, the actual receipt of the payment becomes irrelevant when the assessee is following the Mercantile System of accountancy. Since the assessee has not claimed the TDS credit against the said amount, therefore, the corresponding TDS credit shall be allowed to the assessee once the said amount is added to the gross receipt of the assessee. Hence, to the extent of the addition of Rs. 15,58,492/- in the gross receipts is confirmed. Ground Nos.4 & 6 are part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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