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TMI Blog2010 (8) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; b) Whether the Income Tax Appellate Tribunal rightly set aside the order of the Commissioner of Income Tax (Appeals) without adverting to the findings of the appellate authority and without considering the decision of the CIT Vidharbh and Marathwara Vs. Associated Cement and Steel Agencies, 147 ITR, 776 (Bom.)? The assessee is a civil contractor and claimed the status as a partnership firm. Admittedly, during the course of assessment proceeding the assessee has not complied with the requirement of the notice and has not produced the books of account and, therefore, the assessment has been completed under Section 144 of the Income Tax Act. The assessing authority has taken the status of the appellant as an association of person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the assessment has been made under Section 144 of the Act, therefore, in view of Section 184(5) which is mandatory, the status of the appellant as should be AOP. We have heard Sri Suyash Agrawal, learned counsel for the appellant, and Sri A. N. Mahajan, learned Standing Counsel. The contention of the appellant is that the Tribunal has not considered the finding recorded by the CIT (Appeal) so far as the status is concerned. It has further been submitted that the order has not been passed under Section 144 of the Act, as the provision of Section 44 AD has been applied for estimating the net profit, therefore, provision of Section 184 (5) of the Act is not applicable. Sri A. N. Mahajan, learned Standing Counsel, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order passed under Section 144 of the Act on the ground that it should not be passed under Section 144 of the Act. Therefore, it is not open to the appellant to raise the plea that the assessment made under Section 144 is incorrect. In the case of Civil Contractor under Section 44AD itself 8 % profit has been adopted. Merely gross profit has been estimated by applying 8% profit in view of Section 44AD of the Act, it can not be a ground to dispute the order passed under Section 144 of the Act. In our considered view, since the assessment order was passed under Section 144 of the Act, the assessing authority has rightly adopted the status of AOP in view of Section 184 (5) of the Act as it existed at the relevant time. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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