Rakesh Garg, J. - (1.) THE Revenue has filed the present appeal under Section 260A of the IT Act, 1961 (for short 'the Act') against the order dt. 31st Jan., 2007 passed by the Income Tax Appellate Tribunal, Delhi Bench (I), Delhi (for short 'the Tribunal'), in ITA No. 122/Del/2005 for the asst. yr. 2001 -02 raising the following proposed substantial questions of law: (1) Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal has erred in law and on facts in upholding the order of CIT(A) in deleting the addition of Rs, 37,09,580 computed on the basis of applying 8 per cent profit from contract receipts of 28 trucks because the case of the assessee falls outside the ambit of Section 44AE as the amendments at any time during the previous year in Section 44AE is effective from 1st April, 2004. The assessee's case is related to asst. yr. 2001 -02, hence clause at any time during the year in Section 44AE is not applicable in the case of the assessee in the relevant assessment year i.e., asst. yr. 2001 -02? (2) Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal has erred in law in upholding the order of learned CIT(A) deleting the addition of Rs. 6,62,425 on account of income of 5 trucks on the same basis which were owned by the assessee but not used in the tender of M/s Satpriya & Sons during the year under consideration? (3) Whether on the facts and in the circumstances of the case, the Tribunal has erred in law in not adjudicating the ground of appeal of the Revenue in respect of addition deleted by the CIT(A) at Rs. 4,00,000 on account of repair and renovation of flat and Rs. 13,95,000 on account of unexplained investment in shares? (4) Whether on the facts and in the circumstances of the case, the Tribunal has erred in law in ignoring the facts that the TDS of the receipts on Form No. 16A from these 28 trucks were claimed by the assessee in his return of income and the refund was claimed by him and has been received by the assessee on all these 28 trucks? (5) Whether on the facts and in the circumstances of the case, the Tribunal has erred in law in not taking into account the provision of Section 199 of the IT Act which stipulate that any deduction made in accordance with Section 194C of the Act and paid to the Central Government shall be treated as a payment of tax on behalf of the person from whose income the deduction was made and credit shall be given to him on production of certificate under Section 203 of IT Act on the assessment made under this Act for the assessment year for such income is assessable provided that where the income is assessable to any other person the credit shall be given to such other person in such circumstances as may be prescribed?
(2.) THE assessee is a transport contractor and is engaged in the business of supplying oil tankers on hire to various oil companies. The return of income in this case was filed by the assessee on 25th Sept., 2001 declaring total income of Rs. 1,96,590. The said return was processed under Section 143(1)(a) of the Act. Later on the case was selected for scrutiny. The assessee was issued notice under Section 143(2) of the Act. Reply was filed by the assessee. No books of account are stated to have been maintained by him on the plea that his case is covered under the provisions of Section 44AE of the Act. The AO reached the conclusion that provisions of Section 44AE are not applicable in the case of the assessee and the assessee was required to maintain regular books of account and get these audited as per Sections 44AA and 44AB of the Act. The AO estimated the total Income of the assessee on the basis of gross receipts earned by him by applying a net profit of 8 per cent and made additions vide his order dt. 27th Feb., 2004.
(3.) AGGRIEVED against this order, the assessee filed an appeal before the Commissioner of Income Tax (Appeals), Rohtak [for short 'the CIT(A)']. The CIT(A), Rohtak vide his order dt. 28th Oct., 2004 partly allowed the appeal and held that at no point of time, the assessee owned more than 9 trucks during the accounting year of appeal and directed the assessment of the income from business of trucks to be made at Rs. 1,96,000 as returned plus Rs. 24,000.;