9911796707
TMI Blog2011 (8) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in these appeals are common, these appeals were heard together and are being disposed of through this consolidated order for the sake of convenience. 2. The facts in brief borne out from the record are that the assessee is engaged in the business carrying on sub-contract work for M/s. Gayatri Projects Limited. Return of income for the assessment year 2006-07 and 2007-08 were filed on 20.12.2007 admitting total income at ` 3,13,120/- and ` 4,15,300/- respectively. Return of income was processed u/s 143(1) of the Act on 25.1.2008 and, subsequently, scrutiny assessment was completed u/s 143(3) on a total income at ` 8,32,750/- and ` 11,04,520/- for the assessment year 2006-07 2007-08 respectively. 3. The assessing officer has estima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied where gross receipts are less than ` 40 lakhs. The percentage of profit given in section 44AD cannot be applied in those cases where the receipts are more than the limit. With regard to the status of the assessee, it was contended that the reasons for stating the status of the assessee as AOP was explained to the assessing officer. Having applied his mind, he accepted the status of the assessees and framed the assessment. The explanations furnished by the assessee were not accepted by the CIT and he set aside the assessment order with a direction to reframe the assessment after adopting the status as PFAS. 5. Now the assessee is before us with the submission that this case was selected for scrutiny and proper questionnaire were iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of the revenue because on account of assessment as an AOP, assessee would not be entitled to certain benefits which can be allowed to it after getting its assessment in the status of PFAS. 6. The Ld. D.R. on the other hand has placed a heavy reliance upon the order of the CIT. 7. Having carefully examined the order of the lower authorities in the light of rival submissions, we find that initially the returns of income were processed u/s 143(1) and subsequently it was selected for scrutiny and notice u/s 143(2) were issued. During the course of assessment proceedings, the assessing officer has issued various notices and the questionnaires. In response thereto, the assessee has filed the detailed reply. He has tried to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as AOP. In case of an AOP, the assessee could not get certain benefits which are allowable to it if it is assessed as a partnership firm. Therefore, to assess the assessee as an AOP cannot be called to be the prejudicial to the interest of the revenue. It has been repeatedly held by the apex court and various high courts through various judicial pronouncements that provisions of section 263 can only be invoked where the assessment order is erroneous and prejudicial to the interest of the revenue. Before invoking the provisions, the onus is upon the CIT to make out a case that the assessment order is erroneous and prejudicial to the interest of the revenue. If the assessment order is only erroneous and not prejudicial to the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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