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TMI Blog2017 (2) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Member Shri Rajat Kumar Kureel, JCIT, Sr. D. R., for the Department Shri Sajjan Kumar Tulsiyan, Advocate, for the assessee ORDER Per Shri P.M. Jagtap, A. M. This appeal is preferred by the Revenue against the order of ld. Commissioner of Income Tax ( Appeals)-XIX, Kolkata dated 15.01. 2014 on the following grounds:- (1) On the facts and circumstances of the case, ld. CIT(A) erred in reversing assessing officer s decision to reject books of accounts and estimate the profit at a certain percentage of the gross receipts. (2) On the facts and circumstances of the case, ld. CIT(A) erred in observing that no sufficient and specific findings were brought on record which could have warranted rejection of books of accounts. (3) On the facts and circumstances of the case, ld. CIT(A) erred in observing that non-furnishing of details of sundry creditors in a proper way was not sufficient reasons to reject books of accounts. 2. The assessee in the present case is a joint venture between M/s. SPML and M/s. CISC Limited for carrying out some works contract jointly. The return of income for the year under consideration was filed by it on 08. 02.2010 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the balance creditors. On the other hand, the AO under the pressure of concluding assessment within December, concluded the assessment to the best of his judgment, without affording any further opportunity to the assessee. 3.1. From the facts stated above it is clear that the assessee was prevented, by sufficient cause, from producing the said details. Further, even the AO, being under the pressure of concluding the assessment, did not provide further opportunity to the assessee so as to enable him to produce the balance details. 3.2. In the light of the above stated facts, it is prayed that the details of creditors ( enclosed as Annexure- II) be admitted at this stage under Rule 46 A of the Income Tax Rules, 1962 , relevant extracts of which has been produced below: 46 A. ( 1 ) The appellant shall not be entitled to produce before the Deputy Commissioner ( Appeals) or, as the case may be, the Commissioner ( Appeals), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer, except in the following circumstances, namely:- (b) where the appellant was prevented by sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of the appellant have been duly considered in the deciding the issue at hand. The list of sundry creditors submitted at the appellate stage has been duly considered and admitted since it is apparent that the appellant was prevented by sufficient cause from producing the evidence as called upon by the AO. I find that the AO has not pointed any specific deficiency in the accounts of the appellant warranting the application of section 145 of the Act and more so since it is pointed out that accounts of the appellant are audited and in the absence of any adverse remark in the auditor' s report, there lies a presumption that books of account maintained by the appellant is correct. The same cannot be rejected u/ s 145 ( 3 ) in the absence of any finding recorded by the AO that the books of account were incorrect rendering it impossible to deduce profits therefrom. In other words, the AO has the onus of proving that books of account maintained by the assessee are incorrect and incomplete. The appellant' s contention is squarely backed by the case of Madnani Construction Corporation P. Ltd. v. Commissioner of Income-tax [ 296 ITR 45 ] wherein the Hon' ble Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were taken on record by the ld. CIT( Appeals) by exercising the powers conferred upon him under Rule 46A of the Income Tax Rules. He contended that the Revenue has not raised any ground in its appeal alleging violation of Rule 46A by the ld. CIT( Appeals) and, therefore, the arguments raised by the ld. D. R. seeking opportunity to the Assessing Officer to verify the relevant details of the creditors cannot be entertained. He contended that even otherwise the so- called defect pointed out by the Assessing Officer as regards the failure of the assessee to furnish the complete details of the creditors was not a material defect to justify the rejection of books of account and the same having been removed by the assessee by filing the relevant details before the ld. CIT(Appeals), the action of the Assessing Officer in rejecting the books of account cannot be said to be tenable in the eyes of law. 7. We have considered the rival submissions and also perused the relevant material available on record. It is observed that the books of account of the assessee were rejected by the Assessing Officer merely on the basis of the failure of the assessee to furnish the complete details of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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