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TMI Blog2009 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant that non-filing of audit report along with the return, as required under section 44AF, was an error occurred in the office of the Chartered Accountant. 3. The learned Commissioner should have appreciated that the return filed by the appellant was defective under Explanation (bb) to section 139(9) and that the Assessing Officer should have afforded an opportunity, before processing the return under section 143(1) to rectify such defective return. 4. The learned Commissioner ought to have noticed that the Assessing Officer, without following the procedure under section 139(9), had no jurisdiction to invoke the provisions of section 154 as there could not be a mistake in a defective return. 5. The learned Commissioner oug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee before the learned first appellate authority who vide order dated 20-6-2008 dismissed the appeal of the assessee by holding as under: "I have carefully gone through the rectification Order passed by the Assessing Officer and the submissions as made by the authorized representative of the appellant. I find that the special provisions for computing profits and gains of business in retail trade of IMFL, etc., are contained in the section 44AF of the Income-tax Act, 1961, which is applicable to the cases where the gross receipts of the assessee does not exceed Rs. 40 lakhs. In such cases, the profit admitted should be more than 5 per cent of the turnover. The provisions of section 44AF(1) of the Income-tax Act, 1961 are as given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer under section 154 of the Income-tax Ad, 1961 and, accordingly, no interference is called for in his rectification order because the legal mistake of the appellant is apparent from the records. In the result, the appeal is dismissed." 3. The assessee has filed the present appeal against the order dated 20-6-2008 and raised six grounds of appeal as mentioned above. The learned counsel for the assessee stated that rectification order under section 154 of the Income-tax Act, 1961 passed by the Assessing Officer is void ab initio. He stated that the Assessing Officer has not put the case of the assessee for scrutiny. He further stated that the assessee has not filed her return under section 44AF of the Income-tax Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th us. We have also gone through the decision of the Income-tax Appellate Tribunal, Delhi Bench in the case of Energy Infrastructure (India) Ltd. and we are of the considered opinion that there is a force in the argument advanced by the learned counsel for the assessee which deserves to be accepted because as per the facts the turnover of the assessee was less than Rs. 40 lakhs and she has also not filed her return of income under section 44AF of the Income-tax Act, 1961. Secondly, we are of the view that if the Assessing Officer has not been satisfied regarding the profits shown by the assessee from the contract receipts, he could have taken up the case for scrutiny. The same has not been done by the Assessing Officer and he has wrongly ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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