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TMI Blog2015 (8) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... id interest paid to the bank for housing loan and it is supported by bank statement, therefore we allow the same. - Decided in favour of assessee. - ITA No. 178/CTK/2014 - - - Dated:- 5-2-2015 - SHRI P. K. BABNSAL AND SHRI D.T. GARASIA, JJ. For The Assessee : Sri Kailash Panigrahi - AR For The Department : Sri Rabin Choudhari - DR ORDER PER D.T. GARASIA, J.M This is an appeal by the assessee against the order of ld. CIT (A), Berhampur dated 10/02/2014 for the A.Y. 2010-11. 2. The following grounds are raised by the assessee: 1. That the CIT(A) is not correct in confirming the order of the A.O. who had estimated profit at 8% of the gross receipts, where the books of accounts are audited u/s. 44AB of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e depreciation and he relied upon the decision of Hon ble Rajasthan High Court in the case of CIT Vs. Jain Construction Company reported in (2000) 245 ITR 527 (Raj.) and also relied on a circular dated 31/08/1965, it was clarified that depreciation is to be allowed in cases were net profit is estimated. Learned AR submitted that in the case of Jain Construction (supra), the decision of Hon ble Rajasthan High Court directed that Tribunal while allowing the appeal as directed to compute the total income on estimate basis and allowed relief on account of payment of interest and claim of depreciation. Therefore in this case also depreciation must be allowed. Similarly, he has also produced copy of the decision of Hon ble Punjab Haryana High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44AD of the Act, the persons engaged in the business of civil contract work, who do not maintain books net profit shall be assessable @ 8% of their gross turnover if such tune does not exceeds ₹ 1 crore. We find that the reasonableness of the rate has been accepted by various Tribunals. Sec. 44 AD of the Act which reads as under:- 44AD. (1) Notwithstanding anything to the contrary contained in sections 28 to 43C, in the case of an eligible assessee engaged in an eligible business, a sum equal to eight per cent of the total turnover or gross receipts of the assessee in the previous year on account of such business or, as the case may be, a sum higher than the aforesaid sum claimed to have been earned by the eligible assessee, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a report of such audit as required under section 44AB. [(6) The provisions of this section, notwithstanding anything contained in the foregoing provisions, shall not apply to- (i) a person carrying on profession as referred to in sub-section (1) of section 44AA; (ii) a person earning income in the nature of commission or brokerage; or (iii) a person carrying on any agency business.] 8. From the above section, it clarifies that if the assessee s gross receipts are more than ₹ 1 Crore and if the assessee did not maintain the books of accounts, then his profit has to be estimated @ 8% and depreciation should not be allowed. In the instant case, the assessee did not produce the books of accounts and also did not appear bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (supra) where the Hon ble Rajasthan High Court has confirmed the order of Tribunal by observing that while allowing the appeal, the Tribunal has directed the assessing authority to recompute the total income as estimate by him and allow relief on account of payment of interest and claim of depreciation. The finding recorded by the Tribunal is purely a finding of fact, based on proper appreciation of material on record and the evidence produced by the assessee. In our opinion, in that judgment, the assessee has produced the relevant materials before the Assessing Officer, therefore the Tribunal has verified all the documents on record and come to a particular conclusion. Similarly, in the case of Binod Kumar Bhatra (supra), this case perta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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