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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 ..... Circle IX, Chennai for the assessment year 2000-01 vide order dated 18.03.2005 u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter the 'Act'). 2. The only issue in this appeal of Revenue is as against the order of CIT(A) deleting addition made by the AO in respect of income from contract receipts by assessing less than 8% of the total contract receipts. For this, Revenue has raised following Ground Nos. 2.1 to 2.3 & 3:- "2.1 The learned CIT(A) has erred in deleting the addition made in respect of income from contract receipt at 8% of the total contract receipts. 2.2 The CIT(A) failed to observe that the assessee admitted net profit of Rs. 2,08,501/- which is less than 8% of the Total contract receipts and the assessee has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... originally may be treated as return filed u/s.148 of the Act. Accordingly, the AO issued notice u/s.143(2) of the Act. In response to the said notice, the assessee replied and produced original of the covering letter addressed to DCIT, City Circle, Chennai with a tapal stamp dated 24.10.2000 filed with Assistant Commissioner, Circle -IV(1), which clearly states that the tax audit report u/s.44AB of the Act is being filed. The AO doubted the evidentiary value or authenticity of the letter and stated that even if this letter is accepted, the audit report u/s.44AB of the Act is not filed with the jurisdictional AO. It was pointed out by the AO that even the letter of the assessee does not mention the officer before whom it should have been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are that the assessee is a civil contractor having gross contract receipt of Rs. 39,47,319/- and admitted net profit at Rs. 2,08,500/- as against assessed by the AO at Rs. 4,70,258/-. It is an admitted fact that the assessee has filed Form No.3CB & 3 CD for the assessment year 2000-01 as required u/s.44AB of the Act with the Department on 24.10.2000. The due date for filing of this audit report is 31.10.2000 and return of income is also 31.10.2000. The assessee has filed 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.senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said audit report beyond the due date specified in Section 44AB. There is nothing mentioned in Section 44AB as to what is the consequence if such audit report is not filed within the specified date mentioned therein. However, in Section 271B of the IT Act, 1961 the consequences of failure to get the accounts audited are mentioned, which reads as under: 271B. If any person fails to get his accounts audited in respect of any previous year or years relevant to an assessment year or furnish a report of such audit as required under Section 44AB, the AO may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent of the total sales turnover or gross receipts, as the case may be, in business or of the gross receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention 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). 8. Coming to assessee's Cross Objection in C.O. No.80/Chny/2009, the Department has carried the matter before the Hon'ble Madras High Court in TCA No.1232 & 1233 of 2010, order dated 15.03.2021, wherein the issue of reopening is adjudicated and decided against the assessee because the assessee has given up the grounds raised before the Tribunal. The Hon'ble High Court has recorded its finding in Para 5 as under:- "5. When the assessee themselves have given up the ground, the Income Tax Appellate Tribunal should not have taken into consideration the said ground and given a finding as against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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