TaxTMI 
TaxTMI 
2023 (1) TMI 710
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....he Act') vide order dated 29.09.2017. The assessee has raised the following grounds of appeal:- "1.The Ld. Commissioner of Income Tax (Appeals)-NFAC, erred in passing the order u/s 144 without exercising best judgment and completely ignoring the submissions made by the appellant before the CIT(Appeals), Valsad vide the letter dated 29th January, 2019. 2.Without prejudice to the above, the Ld. CIT(A)-NFAC erred in confirming the order of AO passed u/s 144 made without application of best of his judgment as required u/s 144 of the Income Tax Act, 1961. The Ld. CIT(A) ought to have considered the cash withdrawals and cheque payments and restricted the addition to a reasonable profit of 8% as laid down u/s 44AD of the Act. ....
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.... 6. The appellant craves leave to add, amend, alter or delete any of the above grounds of appeal." 2. On perusal of record shows that NFAC/Ld. CIT(A) passed impugned order on26.11.2021, however, present appeal was filed by assessee before Tribunal on 20.09.2022, the registry has calculated delay of 42 days in filing appeal before Tribunal. The assessee has filed his affidavit for condoning such delay. The Ld. Authorized Representative (Ld.AR) for the assessee submits that the order of NFAC/Ld. CIT(A) was not received by assessee and the assessee was not aware about passing of said impugned order though the assessee has given e-mail portal in Form-35 (Appeal Form before Ld. CIT(A)) of his ex-employer, if any, about sending order was not c....
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....tated on oath that he was not served with the impugned order passed by NFAC/Ld. CIT(A) and came to know about dismissal of appeal only on receipt of tax demand notice and thereafter, filed present appeal. Considering the fact that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice should be prevail. Thus, considering the facts of delay in filing of assessee's appeal is condoned. Now adverting the merit of the case. 5. Brief facts of the case that assessee's case was re-opened for assessment year 2010-11 by recording reasons that as per details in ITS data, the assessee has received contractual receipt of Rs.8,95,080/- from Paras Pumps Pvt. Ltd. The Assessing Offic....
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....in the office of Income Tax Officer, Ward-3 Vapi, copy of acknowledgement was provided. The case was re-opened solely on the reasons that assessee has not filed his return of income and notice under section 148 was issued on 31.03.2017. The addition was made by Assessing Officer for the want of compliance and entire contractual receipts was added to the income of the assessee, which is once again added to the total income of assessee. 8. The NFAC/Ld. CIT(A) after considering the submission of assessee noted that claim of assessee that he has filed his return manually for assessment year 2010-11, but the assessee failed to provide copy of such return with acknowledgement. The assessee failed to discharge onus by producing cogent evidence ....
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....s reopened by Assessing Officer by recording reasons that no return of income was filed. Thus, the reasons recorded itself was not valid reason. On merit, the Ld. AR of the assessee submits it is settled law that entire contractual receipt cannot be treated as income and only income component on presuming net profit @ 8% as prescribed in under section 44AD would be taken as an estimation of income. To support her submission, Ld. AR of the assessee relied upon following case law: • Nishikant T Patne vs. Assistant Commissioner of Income-tax, Circle-3 [2013] 36 taxmann.com 540 (Pune-Trib.)/[2013] 60 SOT 146 (Pune-Trib.)[15-07- 2013] • Commissioner of Income-tax-XII vs. Subodh Gupta [2015] 54 taxmann.com 343 (Delhi)/[2....
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.... notice under section 148, the assessee neither filed return nor responded to various notices. However, before NFAC/Ld. CIT(A) the assessee in his statement of fact and in written submission submitted that assessee received gross receipt of Rs.8,96,080/- from Paras Pumps Pvt. Ltd. The assessee also stated that entire contractual receipt was declared by assessee while filing his return of income for assessment year 2010-11 and such fact are duly recorded by NFAC/Ld. CIT(A). 14. I find that NFAC/Ld. CIT(A) despite that while recording such fact has not directed the Assessing Officer to find out the fact, whether the assessee has filed return of income or not. The NFAC/Ld. CIT(A) confirmed the addition of entire contractual receipt. It is s....