2022 (11) TMI 274

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....10-11, 310/11-12 & 309/11-12 for the assessment years 2004-05 to 2006-07 and dated 30.5.2013 in Appeal Nos.308/1-11/ & 304/11-12, for the assessment years 2007-08 & 2008-09, respectively. 2. Shri Sunil Mishra, ld AR appeared for the assessee and Shri M.K.Gautam, ld CIT DR appeared for the revenue. 3. It was submitted by ld CIT DR that the assessee is an iron ore raising contractor. It was the submission that the mine owner is M/s. Serajuddin & Co. M/s. Serajuddin & Co. had contracted six mining contractors for raising of iron ore. The assessee is one among the six contractors. The assessee does the raising contract work only for M/s. Serajuddin & Co. There was a search on the premises of M/s. Serajuddin & Co. on 28.5.2008. Consequent ....

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....s the income of the assessee and out of the said 70%, 50% to 60% of the total receipts was protectively assessed in the hands of the assessee and substantially in the hands of M/s. Serajuddin & Co. The balance was treated as substantive income of the assessee. It was the submission that the ld CIT(A) in para 5.2 of his order estimated the income of the assessee at 10% of the total receipts of the assessee from M/s. Serajuddin & Co. It was the submission that the assessee having not co-operated in the assessment proceedings, the estimation done by the AO was liable to be upheld and that of the ld CIT(A) reversed. 4. In reply, ld AR submitted that in the course of search on M/s. Serajuddin & Co., no cash had been found nor was any investme....

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....ee, the estimation of income done by the ld CIT(A) be reduced from 10% to 6%. 5. We have considered the rival submissions. A perusal of the impugned assessment clearly shows that there has been non-cooperation by the assessee in the course of assessment proceedings. It is also accepted fact that the AO has relied upon the statement without providing the same to the assessee for cross examination. Admittedly, no evidence can be used against the assessee without granting the assessee an opportunity to cross examine or rebut. It is also recognized that a show cause notice had been issued to the assessee and in the show cause notice the statements relied upon by the AO have not been discussed. The issue of 50% of total receipts being returne....

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....e assessment year 2004-05. For the assessment year 2006-07, the AO has determined the income at 4.9% in the assessment u/s.143(3) of the Act. This being so, we are of the view that the interest of justice would be served if the estimation of the percentage of net profit is taken at 8% as against 10% directed by the ld CIT(A) and we do so. The findings of ld CIT(A) in regard to adoption of estimation of income of the assessee stands upheld and the estimation of income by the ld CIT(A) at 10% stands reduced to 8%. 7. In regard to revenue's appeals in respect of deletion of the protective addition, we are of the view that no interference is called for insofar as the addition made in the hands of the assessee was only protective and same CIT....