9911796707
TMI Blog2012 (11) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... hese appeals are inter-related the same were heard together and are being disposed of by this common order for the sake of convenience. 2. The facts undisputed are that the assessee filed returns of income for the Assessment Years 2005-06 and 2006-07, which were processed u/s.143(1). Subsequently on the reason that the assessee had violated the provisions of Section 44AF by estimating profit at the rate less than 5% of the gross sales without maintaining books of account, the Assessing Officer issued notice u/s.147 and further issued notice u/s.142(1). For non-compliance on the part of the assessee, the Assessing Officer passed the assessment orders u/s.144/147. While doing so, he estimated the net profit @5% of the gross sales by invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing of order u/s.144, which was due to indisposition of the then Counsel engaged by the assessee. Therefore, the audit reports were filed before the learned CIT(A), which though referred in the appellate order in paragraph 5 of his order, the learned CIT(A) without considering the same confirmed the impugned assessments as well as the penalties for both the AYs under consideration. The learned Counsel for the assessee submitted that the assessee has maintained books of accounts and those were duly audited by qualified auditors and as such, the provisions of Section 44AF was not applicable at all. He further submitted that the assessee having furnished the audit reports showing thereby the assessee has maintained books of account, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. 6. We have heard the rival contentions of the parties and perused the material available on record. We find that the reason for initiation of proceedings u/s.147 was when the Assessing Officer found that the assessee being a retailer has returned income below 5% without maintaining books of account in contravention to the provisions of Section 44AF and assessed as such u/s.144/147 the assessee having not produced the books of account before him. True it is that as envisaged in Section 44AF, in the case of an assessee engaged in retail trade in any goods or merchandise, a sum equal to five per cent of the total turnover in the previous year on account of such business or, as the case may be, a sum higher than the aforesaid sum as declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be due to the indisposition of then Counsel for the assessee. However, the same was produced before the learned CIT(A) for the first time. We find that though the fact of furnishing of audit reports has been recorded in the appellate order, the learned CIT(A) did not consider the same and confirmed the assessments and penalties based on findings of the Assessing Officer as to the non-compliance of the assessee to the notices for production of books of account. The position in law is well settled that the CIT(A) has the same powers that an AO has and his powers are co-extensive with that of the AO while determining correct income liable to tax in accordance with the provisions of the Act. He can do what the ITO can do and also direct him to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
