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TMI Blog2013 (8) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... me kindly be deleted. 2.1. ₹ 22,52,211/- : The Ld. CIT (A) erred in law as well as on the facts of the case in confirming the application of Sec. 145(3) of the Act. The provision so invoked and confirmed by the Ld. CIT (A) being contrary to the provisions of law and facts, the same may kindly be quashed. Consequently the trading addition of ₹ 22,52,211/- may kindly be deleted in full. Alternatively and without prejudice to above 2.2. The Ld. CIT (A) further erred in law as well as on the facts of the case in applying the GP rate of 11.10% as against 10.06% declared by the assessee and 12.50% (wrongly calculated @ 12.55) applied by the A.O. The GP rate so applied and addition so made by the A.O. and partly sustained by the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther financial institutions. The disallowance so made and confirmed being totally contrary to the provisions of law and facts kindly be deleted in full. 8. ₹ 38,12,369/- : The Ld. CIT (A) erred in law as well as on the facts of the case in not very clearly and specifically allowing a separate deduction on account of sales t4ax payment whereas the refund received are being shown as income in the profit & loss account. Therefore, the deduction for sales tax kindly be allowed as separate deduction. 9. The Ld. A.O. erred in law as well as on the facts of the case in charging interest u/s 234A, 234B & 234C and 234D and withdraw interest u/s 244A of the Act. The appellant totally denies it liability of charging of any such interest. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting primary documents for gitti kuttai, gitti bichai. 10. No vouchers for mitti dalai. 11. No vouchers for Morram kuttai and dalai. 12. Consumption of diesel and log book its utilization is not maintained. 13. Consumption of cement and how it has been utilized is not maintained. There is no issue register in respect of raw material. 14. Similarly, in respect of bitumen no issue register and maintained and there is no details as to how, it has been utilized. 15. No details of sublet work receipts and expenses were produced with supporting evidences. After considering assessee's reply, the Assessing Officer recorded a finding that in view of defects, the correct profits in this case cannot be deduced. He, therefore, rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner as provided in section 144 of the Act. This has been so held by Hon'ble Rajasthan High Court in the case of CIT vs. Gotan Lime Khaniz Udyog, 256 ITR 243 (Raj.). The Hon'ble Rajasthan High Court in another case in the case of Malani Ram Jivan Jagannath (2007) 207 CTR 19 (Raj.) has held that the gross profit declared need not be disturbed when the purchases and sales are duly vouched and value of opening stock and closing stock is available. In the present case in appeal, the Assessing Officer has not made honest estimation of income by keeping in view the material available on record, past history of the case, local knowledge and repute of the assessee. The assessment made is arbitrary, capricious and rested on wild est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of earlier years which was accepted by the revenue." 7. The Ld. CIT (A), however, took average profit rate of 2 years only and did not act fairly in considering net profit rate of past several years. Had he acted fairly and reasonably, the profit rate declared at 10.06% by the assessee could not have been disturbed in view of average of several years coming to 10.04%. This error, therefore, needs to be corrected so that the income is estimated correctly. 8. On the other hand, the Ld. D/R contends that the Assessing Officer has acted fairly and made a correct estimate of income having regard to facts and circumstances of the case but the Ld. CIT (A) resorted to reduction of net profit rate at 11.01% which is neither justified nor called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government as well as on sub contracts were not appreciated in right perspective. The assessing authority after applying a net profit rate, allowed further deduction of interest payments to bank and financial institutions and made no distinction for not allowing bank charges, interest on loans against fixed assets or payment of interest on loans taken from private parties. On the peculiar facts of this case and considering a similar order in the case of Mukesh Kumar Jain vs. ITO (supra), we consider it reasonable to apply an average profit rate of 10.50% subject to the deduction for depreciation, remuneration, interest to partners, interest paid to bank/other financial institutions and other parties including Bank Guarantee charges paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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