TaxTMI 
TaxTMI 
2023 (1) TMI 757
X X X X Extracts X X X X
X X X X Extracts X X X X
.... facts are identical in both these appeals, we hereby pass a consolidated order by taking ITA No. 1887/Mum/2022 as a lead case. 3. The grounds of appeal raised by the assessee are as follows: 1. "On the facts and in the circumstances of the case and in the law, the Ld. CIT(A), Pune 11 erred in confirming the addition of Rs.6,75,502/- made by the Ld. AO without appreciating the fact that the appellant declared the income u/s 44AD of The Income Tax Act at a percentage of turnover which is higher than the percentage prescribed u/s 44AD of The Income Tax Act." 2. "On the facts and in the circumstances of the case and in the law, the Ld.CIT(A), Pune 11 erred in confirming the impugned addition of Rs.6,75,502/-made by the Ld.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(A) who confirmed the said addition made by the A.O. 7. Further aggrieved, the assessee is in appeal before us. 8. The ld. DR for the assessee contended that the addition was made on the basis of the statement of Shri Chandrakant Ramanna Shetty, partner of the assessee firm who had made voluntary declaration of income of the impugned income. The ld. DR further contended that the diary found during survey operation contended the total expenses which amount to Rs.1,03,87,948/-, and that the impugned expenses pertaining to VAT payment amounting to Rs.6,14,820/- was not found in the said diary. The ld. DR further stated that the alleged VAT payment was made by the customers which was included in the sales bill and that the assessee has no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting the total expenses of Rs.1,03,87,948/- during the survey operation. The ld. CIT(A) on the other hand, relied on the decision of M/s. Pebble Investment and Finance Ltd. vs. ITO (2017- TIOL-238-SC-IT), wherein the Hon'ble Bombay High Court has upheld the evidentiary value of the statement recorded u/s. 133A of the Act. The ld. CIT(A) also relied on the decision of the Hon'ble Delhi High Court in the case of Raj Hans Towers P. Ltd. vs. CIT 373 ITR 9 (Del-HC) for the same proposition. The ld. CIT(A) further held that the addition made by the A.O. was not merely based upon the statement of the partner but also was corroborated from the seized diary found during the survey operation which contained the details pertaining to sale and expe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 44AD or than that declared by the assessee. It is pertinent to examine the provision of section 44AD which is reproduced hereunder for ease of reference: Special provision for computing profits and gains of business on presumptive basis. 44AD. (1) Notwithstanding anything to the contrary contained in sections 28 to 43C, in the case of an eligible assessee engaged in an eligible business, a sum equal to eight per cent of the total turnover or gross receipts of the assessee in the previous year on account of such business or, as the case may be, a sum higher than the aforesaid sum claimed to have been earned by the eligible assessee, shall be deemed to be the profits and gains of such business chargeable to tax under the h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e business' under the provisions of section 44AD of the Act. On this observation, we hold that the assessee's declaration of income u/s. 44AD of the Act is justified and the A.O.'s contention that the assessee has not maintained its books of account in such case, is not warranted. Hence, the assessee's declaration of income u/s. 44AD of the Act at a percentage of turnovers higher than the prescribed percentage u/s.44AD of the Act, is justified. 13. Ground no. 3 pertaining to the expenses amounting to Rs.6,75,502/- paid towards Maharashtra Value Added Tax (Sales Tax) disallowed by the lower authorities on the ground that the impugned amount was paid by the customers along with the bill issued to the customers. It is observed that the asse....