2026 (7) TMI 1631

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....tween the Members, who originally heard the appeal, a Third Member was nominated to adjudicate the following questions:- QUESTIONS OF DIFFERENCE FRAMED BY LD. JUDICIAL MEMBER (1) Whether in the facts and circumstances of the case, the impugned action of Ld. CIT(A) confirmed addition of Net Profit (NP) @ 30% of turn-over is justified when assessee u/s 44AD of the Act had offered NP @ 25.79%. 2. Whether the impugned action of Ld. CIT(A) to confirm the NP @ 30% of turn-over is justified when the survey action in assessee's premises on 18.01.2018 didn't find any material to support the contention of the department that assessee had suppressed her NP or turn-over or had any other income." QUESTIONS OF DIFFEREN....

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....ng material found during survey conducted by Revenue u/s 133A on 18.01.2018 is a correct finding of fact based on material on record or is it a perverse finding liable to be set aside? 3.0 The Hon'ble Third Member, vide order dated 05.02.2026, while disposing of the issues before him, observed in paragraphs Nos. 7 to 11, as under: "7. I have heard the Ld. Representatives of the parties at length and perused the materials available on record. The Ld. Accountant Member has proposed as much as five questions of difference, whereas the Ld. Judicial Member has proposed two questions. 8. The issue as to whether the receipts claimed by the assessee were out of ineligible business so as to disentitle the assessee from claim....

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....gible business receipts was never the subject-matter of dispute. Moreover, the Revenue has also not disputed the assessee's eligibility to claim the benefit of section 44AD of the Act. By allowing AO for such exercise would tantamount to allowing revenue to improve its case. In my considered view such liberty is not permissible under law. Therefore, in my view the questions of difference nos. (a) to (c), as framed by the Ld. Accountant Member, do not arise from the dispute before the Tribunal. The authorities below have not based their respective findings on the question of the eligibility of the assessee and her business activity for availing the benefit of section 44AD of the Act. Moreover, nowhere have the authorities below observed that....