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TMI Blog2023 (7) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the business of running a stone crusher as per his regular books of accounts, which is found to be higher than the deemed income worked out as per the presumptive mechanism set out in Sec. 44AD of the Act, therefore, the order passed by the A.O allowing the assessee s claim for depreciation cannot be held as erroneous. We are also of the view that accounting of the aforesaid income by the assessee as per his regular books of accounts as against that determined on a presumptive basis u/s. 44AE of the Act is also in no way prejudicial to the interest of the revenue. We, thus, in terms of our aforesaid deliberations, are unable to concur with the order passed by the Pr. CIT u/s. 263, wherein he had set-aside the order passed by the A.O u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese issues. Order u/s. 263 passed is bad in law without jurisdiction. 3. The appellant reserves the right to add, amend or modify any of the ground/s of appeal. 2. At the very outset of hearing of the appeal, we may herein observe that the present appeal involves a delay of 424 days. On being confronted with the aforesaid fact, the Ld. Authorized Representative (for short AR ) for the assessee took us through a letter dated 29.08.2022. Elaborating on the reasons leading to the aforesaid delay, it was submitted by the Ld. AR that delay of 379 days (out of 424 days) pertained to the period which was covered by the order of the Hon ble Apex Court in Suo Moto Writ Petition (Civil) No.3 of 2020 dated 23.03.2020, which thereafter was modified vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act dated 18.03.2021, wherein the order passed by the A.O u/s. 143(3) of the Act dated 30.11.2017 was set-aside for the reason that he had while framing the assessment failed to trigger the provisions of Section 44AE of the Act. The Pr. CIT was of the view that the A.O had failed to determine the income of the assessee u/s. 44AE of the Act. Elaborating his aforesaid contention, the Pr. CIT was of the view that as the assessee owned two vehicles, viz. truck (CG 15/ZC/0450) and a tractor, therefore, the income from plying of the same was to be determined as per the presumptive scheme of taxation set out u/s. 44AE of the Act at Rs. 1,80,000/- (i.e Rs. 7,500/- per month for two vehicles). Accordingly, the Pr. CIT holding a conviction that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax/Commissioner of Income Tax. Ostensibly, it is a matter of fact borne from record that the case of the present assessee was at no stage converted into complete scrutiny. 9. Considering the aforesaid factual position, we find substance in the claim of the Ld. AR that now when the case of the assessee was selected for limited scrutiny, therefore, the scope of jurisdiction of the A.O was confined to the specific issue for verification of which the same was picked up for scrutiny assessment. Carrying our aforesaid observation further, we are of the considered view that now when the scope of jurisdiction of the A.O while framing limited scrutiny was confined to the reasons which had formed the basis for selecting the case of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipts worked out at 8.06%. Considering the fact that the net profit of the assessee from his aforesaid business was more than that contemplated under the presumptive provisions of Section 44AD of the Act i.e. @ 8% of the amount of total turnover/gross receipts, therefore, the assessee had categorically made a reference of the said fact in his computation of income for the year under consideration. To sum up, it was the case of the assessee that the profit disclosed by him from his eligible business of running a stone crusher was more than that worked out on a presumptive basis under section 44AD of the Act. As the assessee had disclosed his business profit at an amount higher than that determined on presumptive basis u/s. 44AD of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the aforesaid facts, we are of the considered view that the income disclosed by the assessee by duly accounting for the receipts from the aforesaid vehicles in his regular books of accounts, as against determining the income from plying of the same on a presumptive basis u/s. 44AE can by no means be held to be prejudicial to the interest of the revenue. 14. We, thus, in terms of our aforesaid deliberations are of the considered view that as the assessee had duly accounted for his income from the business of running a stone crusher as per his regular books of accounts, which is found to be higher than the deemed income worked out as per the presumptive mechanism set out in Sec. 44AD of the Act, therefore, the order passed by the A.O a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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