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TMI Blog2022 (2) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... d this evidence i.e., the audit report was filed with the Department and audit was carried out u/s.44AB of the Act on 15.10.2000. All these shows that these events are prior to due date of filing of audit report as well as return of income. Even now, before us the ld.senior DR could not controvert the above evidences filed or the authenticity of the same are not doubted. In view of the admitted facts, we are of the view that the CIT(A) has rightly accepted the contention of the assessee and estimated the profit at a lower rate than 8% of the gross contract receipts. Therefore, we uphold the order of CIT(A). - Decided in favour of assessee. - ITA No.: 211/CHNY/2009 And C.O. No.: 80/CHNY/2009 (in I.T.A. No. 211/CHNY/2009) - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of furnishing of 44AB report along with the return of income. 3. The Ld.CIT(A) failed to observe that as per the provisions of sec.44AD where gross receipts are less than ₹ 40 lakhs, Income from contract receipt has to be taken at 8% of such receipts. If the assessee claims that the income from contract is less than 8% it should be certified by a Chartered Accountant u/s.44 AB of the IT Act. The assessee failed to adhere to such requirements. 3. Brief facts are that the assessee is engaged in the business of civil construction. The assessee filed its return of income for the assessment year 2000-01 on 06.06.2001. The return was processed u/s.143(1) of the Act and subsequently the AO issued notice u/s.148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gross receipt from civil construction are at ₹ 39,47,319/- and admitted net profit of the assessee was only ₹ 2,08,501/-. The CIT(A) has gone into the letter filed by the assessee before the DCIT, Central Circle, Chennai vide letter dated Nil but stamped by Department dated 24.10.2000. This letter mentions that the assessee has filed tax audit report in Form No.3CA and audited report is in original for the assessment year 2000-01. The assessee has also enclosed copy of audit report in Form No.3CB 3CD as required u/s.44AB of the Act, which is dated 15.10.2000. The CIT(A) in view of the above evidences noted that there is no reason to doubt these evidences because these are submitted before the Department and AO has not contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of M.Nandagopal supra wherein the Tribunal has considered exactly identical aspect as under:- 11. In our opinion, non submission of section 44AB report in cases like this does not render the assessee s claim of a lower profit void ab initio. Failure to comply with section 44AB has to be dealt with under the provisions of section 271B. Here, the exposition emanating out of Hon ble jurisdictional High Court decision and the Tribunal decision cited supra are germane. Just that initial assessment has been done u/s 143(1), the Revenue cannot invoke provisions of re-assessment on any ground they can pick up from thin air. The Revenue can also not interpolate consequences of no compliance of provisions of the Act other than what has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the assessee fails to furnish the audit report as required under Section 44AB [which has been incorporated in Sub-section (5) of Section 44AF] it may be liable to levy of penalty as mentioned in Section 271B of the IT Act, 1961. Nowhere in Section 44AF [right from Sub-section (1) to Sub-section (5)] it is mentioned that the assessee will be denied the benefit of claiming lower profits and gains than the profit and gains as specified in Sub-section (1) of Section 44AF, if it furnishes the audit report beyond the due date as mentioned in Section 44AB. Thus, it is clear that it is not the intention of the legislature to altogether deny the benefit of lower profits if the assessee maintains books of account and gets them audited and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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