TMI Blog2021 (8) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... s not permissible u/s 254(2). Since, we have decided the appeal taking into consideration of all the issues, we, find no mistake in the order of the ITAT and there is no reason to interfere with the order already passed. Hence, the M.As. filed by the assessee are dismissed. - M.A. Nos.07/Viz/2020 & 08/Viz/2020 (Arising out of I.T.A Nos.109/Viz/2013 & 432/Viz/2017 respectively) - - - Dated:- 18-8-2021 - Shri N.K.Choudhry, Hon ble Judicial Member And Shri D.S. Sunder Singh, Hon ble Accountant Member For the Appellant : Shri P.V.Subba Rao, AR For the Respondent : Smt. Suman Malik, DR ORDER PER D.S.SUNDER SINGH, ACCOUNTANT MEMBER : The assessee filed Miscellaneous Applications (M.A.) against the order of the ITAT in ITA No.109/Viz/2013 CO No.70/Viz/2013 dated 04.10.2019 for the Assessment Year (A.Y.) 2008-09 and ITA No.432/VGiz/2017 dated 04.10.2019 for the A.Y.2012-13. 2. In this case, the assessee filed the returns of income for the Assessment Year (A.Y.) 2008-09 and 2012-13 and the details of returns of income filed and the assessments completed on total income by the Assessing Officer (AO), assessment year wise is as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the ITAT has directed the AO to estimate the income @12.5% on main contracts and 5% on sub contracts before depreciation, interest and remuneration to partners which is unjustified and therefore, requested to recall the order and reduce the estimation of income @ 11% instead of 12.5% to meet the ends of justice. During the course of hearing, the Ld.AR reiterated the submissions made in it s M.A. and requested to recall the order and revise the estimation of income to @11% of gross receipts. 5. On the other hand, the Ld.DR submitted that the ITAT had considered the issues in it s detailed order and fairly given the ruling for estimation of income @12.5% on main contracts and 5% on sub contracts before depreciation, interest and remuneration paid to the partners, hence, submitted that there is no mistake in the order of the ITAT, therefore, argued that no interference is called for in the order of the ITAT, accordingly requested to dismiss the M.A. of the assessee. 6. We have heard both the parties and perused the material placed on record. In the instant case, the department has filed appeal against the order of the Ld.CIT(A) and the assessee filed cross objections. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve produced the vouchers as per their letter, it has not produced the same. The assessee has addressed letter to Ld.CIT and stated that original vouchers could not be produced which is a draw back in any contractor s cases, who execute the civil works at sites. Subsequently in the statement on 20.12.2010, the managing partner of the firm stated that no vouchers are maintained for day to day transactions. On 29.12.2010 also the assessee firm contended that pucca vouchers could not be produced since the vouchers were self made. Though the books of accounts were audited u/s 44AB of the Act, the CA never clarified regarding the availability and maintenance of vouchers. From the Ld.CIT(A) order, it is observed that the assessee himself has stated in letter in page No.9, that it has made payments in cash to labour supplier, oils and lubricants, dust and chips in violation of section 40A(3) and wrongly grouped the sum of ₹ 1,50,00,000/- under chips instead of labour charges in letter dated 29.12.2010. Pucca vouchers could not be produced for labour, loading and unloading of earth work, chips etc. Only kachha vouchers for chips were maintained. The assessee in respect of 40A(3) submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me @12.5% is reasonable. ITAT Hyderabad Bench in KNR Constructions and in Krishna Mohan Constructions confirmed the estimation of income @12.5%. Tribunal has taken consistent view for estimation of income ranging from 9% to 12.5% depending on the facts and merits of each case. After having considered the facts and merits of the case of the assessee, the Tribunal has decided the appeal of the assessee estimating the income @12.5% before depreciation and interest on remuneration paid to the partners. The assessee did not specifically mention any defect or mistake in the Tribunal order and what the assessee is requesting through the M.A. is revision of the order passed by the ITAT which is not permissible u/s 254(2) of the Act. Hon ble Delhi High court in Commissioner of Income-tax-II.v. Maruti Insurance Distribution Services Ltd, [2012] 26 taxmann.com 68 (Delhi) has considered the scope of amendment u/s 254(2) and held that power to rectify an order, under section254(2) is extremely limited and it does not extend to correcting errors of law, or re-appreciating factual findings because such re-appreciation legitimately falls in sphere of further appeal. Similarly the coordinate bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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