- (1.) By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has dismissed the appeal of the department and partly allowed the appeal of the assessee for statistical purposes.
(2.) Counsel for the appellant has framed following substantial question of law:- 1. Whether on the facts and circumstances and in law, the ITAT was justified in rejecting the plea of Revenue regarding deleting the addition u/s 68 of Rs.4,39,72,094/- as unexplained bank deposit by the CIT(A) without considering the fact that the assessee had declared its income u/s 44AD in its ITR and had failed to furnish its books of accounts before the AO over span of 19 months, after availing 9 opportunities to do so, without a speaking order regarding the objections raised by AO against accepting fresh evidence under Rule 46A of the Income Tax Rules and without bringing on record the sufficient cause under Rule 46(1)(ii) that prevented the appellant from producing any evidence before the AO 2. Without prejudice to the above question of law the following questions of law are being filed: a. Whether on the facts and in circumstances of the case and in law the Tribunal can accept the books of accounts of the assessee even when the net profit rate and the sales shown are at variance with the net profit rate and sale declared as presumptive income in its income tax return which has never been revised by the assessee b. Whether the assessee can declare its presumptive income u/s 44AD declaring N.P. rate @ 14.99% of gross receipts in its income tax return and claim lower N.P. rate and higher turnover, subsequently, without filing a revised return 3. Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in upholding the rejection of books of accounts of the assessee particularly when the assessee filed return of income u/s 44AD and even after 9 opportunities in over 19 months they were not produced during the assessment years and were got audited after assessment proceedings and there was a difference between N.P. and total sales declared in the ITR and the audited books 4. Whether on the facts and in the circumstance of the case and in lae, the Hon'ble ITAT can absolve certain class or classes of assessee from maintaining stock register and proper bills and voucher in violation of provision u/s 44AA 5. Whether on the facts and in circumstances of the case and in law, the Hon'ble ITAT can over-rule a finding of facts by CIT(A) regarding non-maintenance of proper books of accounts, in absence of any fresh evidence furnished before it by the assessee to rebut the finding of fact by the first appellate authority 6. Whether on the facts and in circumstances of the case and in law, the Hon'ble ITAT's acceptance of net profit declared by assessee at 1.75% is per incuriam, as it violates judicial precedence and discipline since it has consistently been held by Hon'ble Rajasthan High Court that past hostory of the assesse will be the basis of estimating N.P. when books of accounts have been rejected u/s 145(3), particularly in the case of the assessee, when N.P. rate is 21.93% in A.Y. 2009-10 and 17.97% in A.Y. 2010-11 and 14.99% in the year under consideration as per the ITR filed and never revised
(3.) The fact of the case are that the assessee filed its return of income on 30.09.2011 declaring total income of Rs. 1,58,366/-. However, the matter was selected for scrutiny and accordingly, notices were issued. Looking to the non-cooperation of the assessee, the Ld. AO, proceeded on the basis of bank statement received from Bank of Maharashtra, Govindgarh and invoked section 144 in making the assessment, thereby, making total addition to the tune of Rs.4,50,50,380/-.;