2008 (8) TMI 906

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....erefore, for facility of reference facts are taken from ITA No. 464 of 2008. 2. The assessee is a contractor undertaking the construction work on contract. The assessee submitted a return for the assessment year 2000-01 declaring the total income of Rs. 8,24,512 in respect of assessment year 2000-01. The Assessing Officer framed assessment on 31-3-2003 after rejecting the claim of the assessee that method of accounting is mercantile and returned a finding that it is cash system. The expenses claimed as per the competition chart were disallowed and added to the income of the assessee. Similarly, the interest and salary paid to the partners were disallowed. In the absence of any documentary evidence, claim of the assessee for Rs. 11,97,719 t....

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....d under section 44AD of the Income-tax Act, 1961 for the purpose of quantification of income about civil construction contractors. The minimum flat rate prescribed for determination of income is 8 per cent of gross receipts paid or payable to appellant provided these receipts do not exceed Rs. 40,00,000. These provisions provide for presumptive taxation i.e., presumption of gross receipts and presumption of expenditure during financial year. According to these provisions contained under section 44AD, the appellant cannot claim loss, if any. Hence, if the gross receipts exceed Rs. 40 lakhs. The civil contractors can claim loss which otherwise cannot be claimed by them under section 44AD. Therefore, by applying flat rate of profit, the appell....

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.... Tribunal dismissed the appeal filed by the revenue and also rejected the argument raised by the assessee in respect of allowing depreciation claimed by the assessee. The Tribunal returned a finding that where the income has been derived in the case of a civil contractor by applying net profit rate, the assessee is not entitled to depreciation since the same has been assessed by applying net profit rate on the gross receipts. Aggrieved against the said order passed by the Tribunal, the assessee is in appeal under section 260A of the Act, before this Court, raising the following substantial questions of law :- (i) Whether the action of the respondent authorities to disallow the depreciation to the assessee appellant without giving any adeq....