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TMI Blog2014 (7) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is noted by the learned Assessing Officer in his assessment order. In the opinion of the learned Assessing Officer, books of account were not reliable and accordingly he proceeded after rejecting the books of account and estimating the income by applying certain percentage of profit on the gross receipts. To this extent, we are of the view that he has not committed any error though the enquiries has to be closed at some stage and the learned Commissioner of Income-tax cannot transgress the jurisdiction under section 263 by mentioning that no proper enquiry has been made and he is not authorised to substitute his opinion for that of the learned Assessing Officer. Commissioner of Income- tax is not justified in cancelling the assessment si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing." 2. In the present case, the learned Assessing Officer has applied the provisos to section 145(3) of the Act and estimated the assessee's net profit at 5.58 per cent. of its gross turnover from the civil contract work. The learned Assessing Officer further added separately interest income under the head "Other income" and allowed deduction on account of interest and remuneration to partners and computed the total income of the assessee by applying the decision of the Income-tax Appellate Tribunal, Patna Bench, in the case of Kumar A. S. Construction, Gaya in I. T. A. No. 81/ Pat/08. 3. The learned Commissioner of Income-tax give a show-cause notice under section 263 alleging that there was inability to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order sheet entry, dated March 16, 2009, which was responded by the expressing inability to provide the said evidences of expenses and the fact is noted by the learned Assessing Officer in his assessment order. In the opinion of the learned Assessing Officer, books of account were not reliable and accordingly he proceeded after rejecting the books of account and estimating the income by applying certain percentage of profit on the gross receipts. To this extent, we are of the view that he has not committed any error though the enquiries has to be closed at some stage and the learned Commissioner of Income-tax cannot transgress the jurisdiction under section 263 by mentioning that no proper enquiry has been made and he is not authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hari Lal [2002] 258 ITR 331 (Raj) and our findings hereinabove, the learned Commissioner of Income- tax is not justified in cancelling the assessment since we do not find the order of the learned Assessing Officer as erroneous in so far prejudicial to the interests of the Revenue and also the assessment has not been made in the present case under section 144 so as to warrant no deduction under section 184(5) of the Act and such deduction of interest and remuneration were available under section 40(b) of the Act. Accordingly, we cancel the order of the Commissioner of Income-tax under section 263 of the Act. Thus all the grounds of the assessee are allowed. 6. In the result the appeal of the assessee in I. T. A. No. 10/Pat/2012 is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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