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TMI Blog2015 (10) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... s made u/sec. 144. The assessee therefore brought to the notice of the Hon'ble Tribunal that when an ex-parte assessment in terms of sec.144 is made, it must be based on material available on the record and the Hon'ble Tribunal was kind enough to mention the 8 cases which include 4 cases of jurisdictional High Court and 2 cases of Supreme Court. In Para 8, the Hon'ble Tribunal did deal with the contention of the assessee that in the Assessment Order 2004-05 and 2005-06 where the assessment completed u/sec.143(3), the income from contract turnover works out at 4.4% and 3.86% respectively. Whereas the Assessing Officer has estimated the income at 8% on the contract turnover as against 5% estimated in M/s. Teja Constructions case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All the arguments of the assessee/Ld. Counsel were recorded in para-6 onwards and the issue was considered vide paras 10 to 14. In doing so, the ITAT relied on the decision of Coordinate Bench in the case of Teja Constructions vs. ACIT in ITA.No.308/Hyd/2009 relied upon by the Ld. Counsel and analysed the said decision. Accordingly, the income was confirmed at 8% by holding as under : "12. As seen from the above, in that particular case Assessee has not maintained books of account and the AO has no option than to reject the books of account and estimate the income at 10%. Assessee agreed that his income can be estimated at 9% of gross receipts. There is concession on the part of Assessee and the ITAT went on to give di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due to various other factors which can be considered. 13. In the case under consideration, even though it was stated to have got the books of account audited, it did not produce the same before the authorities for verification. In fact, while filing revised return of income withdrawing originally admitted income u/s 40(a)(ia), Assessee claimed that by mistake in the original return they disallowed these amounts u/s 40(a)(ia). This indicates that no proper audit was conducted on the books of account, if so such mistakes can not happen. In these circumstances, we do not find any reason to interfere with the order of the AO and CIT(A) in estimating the income at 8% and accordingly, their orders are upheld on this issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; 4. Bhaskar Reddy Vs. ITO, ITA No. 168/Hyd/06, dtd. 09-10-2007. Therefore, in the absence of proper reasons for earning lesser profit, the order of the AO is upheld and income estimation at 8% on the gross receipts made by AO is accordingly confirmed". 5. Since, valid reasons were given in confirming the estimation at 8%, the contention of the assessee now that ITAT should have taken past performance of record of the assessee has no basis as not only the facts of the case but also the relevant law was considered at the time of deciding the appeal. Thus, we find no merit in assessee's contentions and accordingly, the first issue is rejected. 6. The second issue, contested in the garb of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us that these incomes has nexus with the contract business". Since this particular document stated to have been filed in the course of argument, it is not on record, the contention of the assessee now that this amount was written off by bank and was considered as income under section 41(1) cannot be considered in the course of proceedings under section 254(2). Be that as it may, even otherwise, since this amount was claimed as expenditure in earlier year and was allowed as such, the same can be considered as income of the year, even though the estimation was made on the contract work of during the year. Since this income does not pertain to contract work of this year, we are of the opinion that there is no error in the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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