- (1.) THE present appeal has been filed under Section 260 -A of the Income Tax Act, 1961, hereinafter referred to as "the Act", against the order dated 13.2.2009 passed by the Income Tax Appellate Tribunal. The Department has proposed the following substantial question of law said to be arising out of the Tribunal's order.: WHETHER on the facts and in the circumstances of the case, the Hon'ble ITAT was legally correct in upholding the order of the learned CIT(A) that they do not find any infirmity in the order of the learned CIT(A) whereby the books of account of the assessee has been accepted without properly appreciating the facts and circumstances of the case and as well as the observations and findings of the A.O. made in the assessment order - 2. WHETHER on the facts and in the circumstances of the case, the Hon'ble ITAT was legally correct in holding that specific defects are required to be pointed out in assessment proceedings for invoking the provisos u/s. 145(3) especially when assessee has not maintained project wise details to enable the AO to compute the correct profit? Briefly stated the facts giving rise to the present appeal are as follows.
(2.) THE appeal related to the Assessment Year 2004 -2005. The respondent -assessee is a builder. It had filed return of income on 20.10.2004 declaring its total income of Rs. 4,85,520/ -. The regular assessment under Section 145(3) of the Act was initiated and after examining the books of account the aforesaid return of income was disbelieved and the Assessing Officer has assessed his total income at Rs. 19,18,882/ -. Feeling aggrieved, the respondent assessee preferred an appeal before the Commissioner of Income Tax (Appeals), who vide order dated 29.2.2008 had partly allowed the appeal. On the basis of the books of account and the documents filed in disclosing the total expenditure, however, certain additions have been disallowed. Feeling aggrieved the Revenue Department preferred the appeal before the Tribunal. The assessee had also preferred cross objection before the Tribunal. The Tribunal dismissed both the appeals.
(3.) WE have heard Sri Shambhu Chopra, learned Senior Standing Counsel and Sri Swapnil Kumar, learned counsel for the Assessee. Sri Chopra, learned Senior Standing Counsel for the Income Tax, submitted that the order of the Tribunal was not justified as the books of account did not disclose the actual income as the respondent -assessee has not maintained the books of account properly and the income declared by it has been disbelieved. The submission is wholly misconceived. CIT while examining the books of accounts has observed as follows: I have considered the submissions records and details available and agree with the submissions made by appellant. The appellant has maintained regular books of account and details including purchases, complete details of which were furnished. No defect has been pointed out therein by Assessing Officer except that the appellant has not maintained these details project -wise. Facts and figures of the case mentioned and compared by the Assessing Officer, have not been disclosed. In part also, the books have been maintained in the same fashion and have been accepted. Hence, looking at facts and submissions and past record, the books of account of appellant are accepted and addition of Rs. 17.27,394 is hereby deleted.;