IN INCOME TAX APPELLATE TRIBUNAL, B BENCH KOLKATA Before Shri P.M Jagtap, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member I.T.A. No. 2214/KOL/2013 A.Y: 200910 Shri Hribu Bose Vs. Income Tax Officer PAN: AEIPB 7702A Ward 1(2), Asansol (Appellant) (Respondent) I.T.A. No. 2323/KOL/2013 A.Y: 200910 Income Tax Officer Vs. Shri Hribu Bose Ward 1(2), Asansol (Appellant) (Respondent) Appearances by: Shri U. Dasgupta, Advocate, ld.AR Shri Pinaki Muherjee, JCIT, ld. Sr.DR Date of hearing : 21-07- 2016 Date of pronouncement : 30 -09-2016 O R D E R Shri S.S. Viswanethra Ravi, JM :- These two appeals by assessee in ITA No.2214/Kol/2013 and revenue in ITA No.2323/Kol/2013 are directed against order dated 14-06-2013 passed by Commissioner of Income Tax(Appeals), Asansol for assessment year 2009-10. ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 1 ITA No.2214/Kol/2013 AY 2009-10 (by assessee) 2. assessee has raised following grounds:- 1. F o r t h at t h e o rd e r o f Ld . C o mmi s si on e r o f In c o m e T ax (A ) is rb i t r ry , ex c e ss i v e h en c e b d in La w . 2. F o r t h at on t h e f ac t s o f t h e c as e t h e ld . C IT (A) wa s n ot leg all y j u st i fi ed in e st ima t in g t h e n et p r ofi t @ 1 1 % o f g r o ss c on t ra ct r e c eip t s w h ich i s v e ry mu ch on t h e h ig h e r sid e d t h e sa m e ma y p l ea s e b e m od i fi e d . 3. F o r t h t on t h e fa ct s o f t h e ca s e t h e ob s e rv at i on of t h e CI T(A ) in P ag e n o .- 8, 9 d 10 o f t h e p p ell at e o r de r r e c on t rad ic t or y . 4. a) F o r t h at on t h e f act s of t h e c as e t h e C IT( ) wa s n ot j u st i fi ed in su st in i n g t h e d d it io n m ou n t i n g t o Rs .1 8, 00 ,00 0/ - on D oz e r h i r e ch rg es , R s .12 ,5 7, 600 / - on E xc av at o r h i re ch r g e s , d R s .12 ,0 5, 200/ - on p ay l o ad e r h i r e ch arg e s u / s . 40( a) ( i ) o f t h e ct 61 , wh en b o o k r e su lt s h s b e en r e j e ct ed d p r ofit h as b e en e st i mat ed at c e rt ain p e r c en t g e of g r o ss c on t r ct r e c e ip t s , d leg all y t h e r e is n o s co p e f or m ak in g n y fu rt h e r dd it i on s n d s su ch t h e ad d it i on s may p l e s e b e d e l et ed . 4. ( b) F o r t h at . on t h e f ct s o f t h e ca s e t h e C .I .T (A ) w as n ot j u st i fi ed in su st ain i n g t h e ad d it i on m o u n t in g t o Rs . 18 ,0 0, 0001- on D oz e r h i r e ch rg e s , R s . 1 2, 57 ,60 01- o n E xc av at o r h i r e ch r g e s , d R s . 12 ,05 ,2 001- on p ay l oad e r h i r e ch arg e s , U/ S 4 0(a) ( ia ) of t h e ct '61 , wh en t h e m ach in e s w e r e t ak en on h i r e f r om op en ma rk e t, on s p e r r eq u i re m en t b asi s , d p ay men t s t o ea ch p e r s on n ev e r e xc e e d ed t h e st at u t o r y li mit u / s 1 94 I of t h e c t ' 61 , d u rin g t h e fin ci al y ea r , d s su ch t h e said ad d it i on s ma y p l ea s e b e d el e t ed . 5) F o r t h t on t h e f ac t s o f t h e c s e t h e Ld . CI T(A) wa s n o t leg all y j u st ifi e d in su st ain in g t h e ad d i t ion o f R s .1 1 ,4 2, 6 001- on / c o f lab ou r wag e s, wh en t h e sai d p ay m en t s ma d e t o Lab ou r sa rd rs , ( su p p or t ed b y wag e sh e et s) ar e n ot h it b y s ec 40( a) ( ia ) of t h e ct '61 , d t h e sa m e ma y p l ea s e b e d el et ed . 6) F o r t h t on t h e f ac t s o f t h e c s e t h e Ld . CI T(A) wa s n o t j u st i fi ed in su s t ain i n g t h e ad d it i on o f R s .8 ,63 ,6 88/ - on / c o f M r . Su n il K u m ar ,( t h e p rin cip al con t ra ct o r) , wh en t h e s am e i s n o t c om mis si on , b u t t h e sa m e i s t h e p ar t of h is p r of it s r et ain e d b y h im ag ain st t h e Gr o s s con t r ct j o b su b - le t t o t h e ap p ell t ( su b c on t ra ct o r) , d t h e ad d it i on w r on g ly m ad e ma y p l ea s e b e d el e t ed . ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 2 ITA No.2323/Kol/2013 AY 2009-10 (by revenue) 3. revenue has raised following grounds: - 1) Th at Ld . C o mmi s si on e r of In c o m e Ta x (A p p eal) er r e d in law d on f act s b y d el et in g t h e ad d it i o n o f R s . 3 3, 50 ,56 2/ - on ac c ou n t of u n d i s cl o s ed t u rn ov e r d r e s t ri ct ed t h e ad d it i on t o 11 % of u n d i sc lo s ed t u rn o v er as as s e s s e e h s n ev e r d iscl o s ed t h i s u n d is cl o s ed t u rn ov e r d u ri n g sc ru t in y p r o c e ed in g s . Th e s p e ci fi c fin d in g o f . O . is n o t b ein g t ak en in t o c on c e rn b y Ld . CI T (A ) . 2) Th at Ld . C om mi s si on e r o f In c om e Ta x (A p p e al) e r re d in law d on f ct s b y d el e t in g t h e ad d i t i on o f R s. 1, 18 ,05 8/ - on ac c ou n t of p ar t ly d i sal lo wan c e of r ep ai r & main t en c e ch rg e s. 3) Th at Ld . C om mi s si on e r o f In c om e Ta x (A p p e al) e r re d in law d on f act s b y d el et in g t h e ad d it i o n o f R s . 1 1, 35 ,36 9/ - on ac c ou n t of d i sa ll o wan c e o f e x c e ss d ep r e ci at i on on du mp e rs . Wh e r ea s . O . h ad mad e h is d e ci si on j u d ic i ou s ly r el yin g u p on d e ci si on o f CI T V s Gu p t Gl ob al E x im ( P) Lt d . ( 200 8 ) 171 Ta xm n 4 74/ 305 I TR 132( SC) t h at d e p r e cia t i on b l oc k o f 30 % i s ap p li ca b l e on ly wh en ss e s s e e is in b u sin e s s o f h i rin g ou t it s b u s e s, l o r ri e s o r t xi e s. H e r e ss e s s e e u s ed h i s al l d u m p e r s f o r ow n b u s in es s . Th e sp e ci fi c d rat i on le fin d in g o f . O . i s n o t b ei n g t ak en in t o co n c e rn b y Ld .CI T (A ) . 4) Th at Ld . C om mi s si on e r o f In c om e Ta x (A p p e al) e r re d in law d on f act s b y d el et in g t h e ad d it i o n o f R s . 10 ,92 ,8 8 01- on ac c ou n t o f u n e xp l ai n ed c ash c r e d it u / s 68 o f I T . ct , d e s p it e of t h e f ac t, en ou g h o p p o r t u n it i e s w e r e g iv en t o s s es se e t o o f f er h is ex p lan at i on , b u t h e t o t all y n on c om p li ed . 4. First, we shall take up assessee s appeal in ITA No.2214/Kol/2013 for A.Y 2009-10. ITA No.2214/Kol/2013 for A.Y 2009-10 5. brief facts relating to issues are that assessee is individual and is civil contractor and engaged in business of civil contracts and other miscellaneous contracts and conducted ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 3 his business in name and style of M/s. Bose Infrastructure and M/s. Continental Techno Co. filed his return of income on 30-09- 2009 declaring total income at Rs.2,47,760/-.Under scrutiny, notices u/s. 143(2)/142(1) were issued. In response to which ld.AR of assessee appeared and replied on questionnaires issued by AO. During assessment proceedings AO found that amount of Rs.33,50,562/- is undisclosed income of assessee as it was not mentioned in said return of income. AO on verification of ledger as filed by assessee was of view that assessee has claimed hire charges of Rs.11,09,000/- and Rs.6,91,000/- paid to Sri Dipak Roy and Binod Yadav without deducting TDS on such payments and added said amount of Rs.33,50,562/- u/s. 194I of Act to total income of assessee. Similarly, AO on verification of ledger found that assessee has paid Excavator hire charges of Rs.12,57,600/- to Sri Prabal Chanda without deducting TDS u/s. 194(I). AO added same to total income of assessee. Likewise AO added sum of Rs.12,05,200/- towards pay loader hire charges, Rs.11,25,000/- towards roller hire charges u/s. 194C, Rs.11,42,600/- and Rs.8,63,688/- towards labour charges and commission charges u/s. 194H of Act. AO also added sum of Rs.1,18,058, Rs.11,35,369/- and Rs.10,92,880/-towards repairs and maintenance, depreciation charges and cash credit u/s.68 of Act respectively and finally he determined total income at Rs.1,33,38,720/- by order u/s. 143(3) dated 22-12-2011. 6. Aggrieved by such assessment order passed u/s. 143(3) of Act, assessee preferred appeal before CIT-A and contended that actual deletion is of Rs.2,24,88,355/-, which is ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 4 more than what was disclosed before AO. It was submission that books of account never existed and tax audit report was disowned. Thus, ld.AR of assessee before CIT-A urged that net profit percentage should be determined at less than percentage determined by AO. AO made additions/disallowances in view of computing net profit on estimation basis. Considering submissions of assessee CIT-A opined that there was no reflection of true and correct figures and directed AO to estimate net profit at 11% and to reduce value of material supply and retention of money and further to enquire with regard to deduction claimed on receipts of machinery hire charges. 7. Aggrieved by such order of CIT-A, both assessee and revenue are in appeal before us by raising respective grounds of appeal, which have been mentioned hereinabove. 8. Before us ld.AR submits that assessee has filed audited accounts, but could not produce books of account. He further submitted that CIT-A has estimated net contract receipts @11%, which is higher than estimation of earlier years and such assessments were completed by applying net profit at 8% u/s. 143(3) of Act. ld.AR argued that when authorities have accepted gross receipts, then impugned additions made by AO are invalid. ld.AR for assessee further relied on decision of Hon ble Jurisdictional High Court in case of CIT Vs. Shri Arjun Bhowmick in GA No.2683 of 2014/ITAT No.134 of 2014. ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 5 9. In reply, ld.DR submits that assessee filed his return of income along with tax audit report. Basing on which, impugned assessment was completed u/s. 143(3). He further submitted that disowning of tax audit report and books o f account before CIT-A is incorrect and not fair on part of assessee. In support of his contention, he relied on order/decision of co-ordinate bench of ITAT, Patna reported in 2015 Taxmann.com 37. Ld. DR urged to remand matter to file of AO for further verification in respect of additions made towards machinery hire charges and commission. 10. Heard rival submissions and perused material available on record including case laws cited by both parties before us. We find that, according to AO assessee filed his return of income along with tax audit report and books of account. But on subsequent proceedings before CIT-A assessee disowned both tax audit report and non existence of books of account. We find that AO made additions/disallowances based on books of account as submitted before him. CIT-A taking into consideration submissions of assessee applied net profit at 11% and CIT-A also upheld and modified other additions/disallowances as made by AO. Therefore, question before us is to be decided that whether CIT-A is justified in directing AO to adopt net profit at 11% in facts and circumstances of case. Particularly, when assessee disowned tax audit report and non existence of books of account. In this regard we may refer to decision of Hon ble Jurisdictional Calcutta High Court in case of Arjun Bhowmick supra held as estimation made by AO of net profit ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 6 will take care of every addition related to business income or business receipts and no further disallowance can be made relevant portion of which is reproduced as under:- W e f in d t h at t h e le ar n ed T r ib u n l w h ile all o win g t h e ap p eal o f t h e as s e s s e e h ad h eld s u n d e r: - "W e fin d t h at t h e r e is n o d i sp u t e t h at t h e r e r e n o b o ok s o f cc ou n t s t h e as s e ss e e fai l ed t o p r od u c e t h e sa m e. It is als o ad mit t ed p o sit ion t h at s s e s se e h s cc e p t ed t h e ap p li ca t i on of n et p r of it rat e @ 8 % on t h e g r o s s re c ei p t s . Th e d isp u t e on l y i s s r eg ar d s t o d i sall o wa n c e on cc ou n t o f h ir e ch rg e s , t ran sp o rt t ion ch ar g es d sl u r ry r e m ov ab l e ch rg e s b y in v o k in g t h e p r ov is i on s o f s e ct i on 40( a) ( i a) of t h e ct . F u rt h e r , d i sall o wan c e o f su p e r vi si on c h arg e s , lab ou r ch r g e s , sit e e xp en s es , l oa d t e st in g e xp en s e s t 50 %. Wh et h er t h e O can d is all o w t h e ex p en s e s wh ich r e d ir e ct l y r elat ed t o g r o ss r e c eip t o f t h e as s e s se e on w h ic h t h e O h s est ima t ed n et p r o fit b y ap p ly in g t h e rat e o f 8 % . It i s fa ct t h at t h e s s e s se e h as n ot p r o d u c e d b o ok s o f ac c ou n t , it me s t h at t h e O h as n ot r el i ed on b o ok s o f c c ou n t f o r es t i mat i on o f p ro fit s . T h is fa ct i s cc e p t ed b y as s e ss e e s w ell s b y r e v en u e . W e ar e o f t h e vi e w t h at on c e t h e n et p r ofi t rat e is es t im at ed t h e O can n ot b s e h i s d i sal lo wan c e on t h e sa m e b o ok s o f c c ou n t f or t h e p u r p o s e o f d is all ow c e b y in v ok in g t h e p r ovi si on s o f s ec t i on 40( a) ( i a) o f t h e c t o r g en e ral d is all ow ce u / s . 3 7 of t h e c t . Th e e st i ma t ion ma d e b y O of n et p ro fit wi ll t k e ca r e o f ev e r y d d it i on r ela t ed t o b u s in es s in c om e o r b u sin e ss r e c eip t s d n o fu rt h e r d i sal lo wan c e can b e ma d e. We s e e f or c e i n t h e rg u m e n t o f t h e as s e s s e e t h at wh en t h e in c om e o f t h e ss e s s e e wa s c om p u t ed ap p l yin g g r o ss p r of it rat e d n o d ed u ct i on w as all o w ed in r eg r d t o t h e e xp en s es cl aim e d b y t h e as s e s s ee , t h e r e wa s n o n e e d t o l o o k in t o t h e p rovi si on s of s ec t i on 4 0( a) ( ia) o f t h e ct or s e ct i on 37 o f t h e Act . c c o rd in g l y , n o d i s all ow c e c ou ld h v e b e en ma d e in vi e w of t h e ab ov e fa ct s t h t on c e t h e p r o fit is e st i mat ed by ap p l yin g n et p r o fit rat e . c c o rd in g l y , w e d i r e c t t h e O t o d el et e t h e ot h e r d is all o wan c e s d r e st ri ct t h e d d it i on b y app l yin g N et Pr o fit ra t e @8 % of g r o ss r e c eip t s . W e f in d v alid r e as o n s g i v en b y t h e T ri b u n al in su p p o rt o f t h is o rd e r . T h e r e f o r e , n o su b st t i al q u e st i on o f l aw ri s es . H en c e, t h e p p li ca t i on d p p eal r e d ism is s ed . 11. Further, we may refer to another decision as relied on by Ld.AR passed by Hon ble HIGH COURT OF ANDHRA PRADESH in case of Indwell Constructions v. Commissioner of ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 7 Income-tax [1998] 232 ITR 776 (Andhra Pradesh) wherein Income- tax Officer rejected books and estimated income at Rs. 2,50,000. Commissioner of Income-tax considered that this estimate was erroneous and prejudicial to interests of Revenue and added sum of Rs. 63,859 under section 263 of Act. contention of assessee was that where books of account were rejected, Revenue cannot rely on same books for addition of cash credits. Tribunal referred following question to Ho ble High Court. "Whether, on facts and in circumstances of case, it is correct in law to make separate addition of Rs. 63,859 representing interest and remuneration paid to partners, to income already estimated and assessed from contracts?" 12. Hon ble High Court held that If those books are not correct or complete, Income-tax Officer may reject those books and estimate income, When such estimate is made it is in substitution of income , in other words, all deductions are deemed to have been taken into account while making such estimate and relevant portion of which is reproduced herein below: pattern of assessment under Income-tax Act is given by section 29 which states that income from profits and gains of business shall be computed in accordance with provisions contained in sections 30 to 43D. Section 40 provides for certain disallowances in certain cases notwithstanding that those amounts are allowed generally under other sections. computation under section 29 is to be made under section 145 on basis of books regularly maintained by assessee. If those books are not correct or complete, Income-tax Officer may reject those books and estimate income to best of his judgment. When such estimate is made it is in substitution of income that is to be computed under section 29. In other words, all deductions which are referred to under section 29 are deemed to have been taken into account while making such estimate. This will also mean that embargo placed in section 40 is also taken into account. No doubt there is big difference between profit earned with own capital and profit earned with borrowed capital and such difference could have been taken into account by Income-tax Officer while making ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 8 estimate. If Commissioner had set aside estimate on ground that vital fact that business was carried on with own capital and not with borrowed capital has been ignored by Income-tax Officer, there may not have been any difficulty in upholding that order. But, when he proposes to add back exact item in profit and loss account, he was relying on rejected books which he could not do as held by Bench of this court in Maddi Sudarsanam Oil Mills Co. v. CIT [1959] 37 ITR 369. There is also further difficulty if section 40, as argued by learned counsel, is to be taken into account even after making estimate. When there are certain other deductions which are to be disallowed such as wealth-tax payment in section 40, can it be said that after making estimate, wealth-tax charged in profit and loss account should again be added back to profit. This example illustrates how contention of Revenue, that section 40(b) makes difference in situation, is untenable. In our considered opinion, answer to question has to be in negative and in favour of assessee. 13. In aforesaid decision , Hon ble High Court was pleased to refer to decision in case of Maddi Sudarsanam Oil Mills Co. v. Commissioner of Income-tax reported in [1959] 37 ITR 369 (AP) passed by HIGH COURT OF ANDHRA PRADESH. facts therein are that assessee disclosed turnover of Rs. 18.18 lakhs and gross profit of Rs. 92,726 in books which worked out to 5.1%. net income disclosed by assessee was Rs. 25,454. This figure, however, was not accepted by Income-tax Officer who added four sums on account of value of yield of oil and cake from unaccounted for kernel Rs. 34,795, value of deficit yield of oil and cake from kernel disclosed in books Rs. 46,001, unaccounted for profit on sale of permits restricted to unproved cash credits Rs. 56,345, and interest of Rs. 48 in respect of one of impugned cash credits, making total of Rs. 1,37,189. appeal against these additions was rejected. Tribunal, while maintaining additions, rejected books. following has been referred to Hon ble HIGH COURT OF ANDHRA PRADESH. "Whether on material placed before it Tribunal is justified in sustaining addition of Rs. 1,37,189." ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 9 14. Hon ble High Court observed Having computed gross profit at 9.5%, further addition sum of Rs. 56,345 on account of unproved cash credits and such addition is wrong when flat rate of 9.5% on total turnover is being adopted in computing gross profits and relevant portion of which is reproduced herein below: contention of learned advocate Shri Kuppuswamy is that Tribunal having adopted as basis of assessment gross profit of 9.5% instead of 5.1% had computed figure of Rs. 1,37,189 wrongly. This contention, in our view, is valid. Tribunal has made arithmetical error in computation, because additions on account of value of yield of oil and cake from unaccounted for kernel of Rs. 34,795 and on account of yield of oil and cake from kernel disclosed in books of Rs. 46,001 would come to Rs. 80,796 and enhance profit to Rs. 1,72,522 which on total turnover of Rs. 18,18,308 works out to about 9.5%. Appellate Assistant Commissioner has also computed these figures as showing yield of 9.5%, gross profit, which is gross profit in three other similar cases in Guntur. Having thus computed gross profit at 9.5%, Appellate Assistant Commissioner further added sum of Rs. 56,345 on account of unaccounted for profit on sale of permits restricted to unproved cash credits. This addition is obviously wrong when flat rate of 9.5% on total turnover is being adopted in computing gross profits. assessee had recourse to several entries of cash credits only for purposes of balancing accounts with view to reducing rate of gross profits. If once income-tax authorities have rejected books, they cannot have it both ways, namely, adopting flat rate to compute gross profit as well as rely on books for purposes of adding unexplained cash credits which were part of scheme of balancing accounts. Tribunal, quite properly, rejected this basis and having done so, merely confirmed additions of income-tax authorities, probably under impression that two items of yield of oil and cake from unaccounted kernel and value of deficit yield of oil and cake from kernel disclosed in books would amount to Rs. 1,37,189. We cannot, having regard to categorical observations of Tribunal that addition should be unitary where proviso to section 13 of Act is applied by making estimate, assume that Tribunal intended to negative statement by also adding cash credits in computing gross profits. In circumstances we have no hesitation in holding that addition on flat rate of 9.5% adopted by Tribunal in estimating gross profit is proper and that amount of Rs. 1,37,189, was wrongly computed. Our answer to reference is in negative. assessee will receive costs from Department. 15. Now, we shall examine decision relied on by Ld.DR in case of Prabhat Construction Company reported in (2015) 60 ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 10 taxmann.com 37(Patna-Trib) passed by Patna Bench of Tribunal. relevant portion which is reproduced herein below: With regard to disallowance u/s.40(a)(ia) being not permissible, even where applicable, i.e., where assessment is framed on estimation basis, we have found argument as not legally tenable. This is as assessment of income even under estimation regime is of total income under Act and not of business profit alone, and which could only be upon considering applicability or otherwise in facts of case of all relevant provisions of law, to which section 40(a)(ia) is or cannot be any exception. same in fact is statutory disallowance, artificially inflating assessee-payer's income for time being, which is liable to be allowed as deduction upon complying with condition prescribed for its non applicability, i.e., of deposit of TDS to credit of payee, in year in which it stands complied with, introducing thus timing effect. Not so considering; rather, leads to anomalous, unacceptable situation. Our reasons in support of our decision stand listed in foregoing paragraphs of this order. Our decision, based on first legal principles, is supported by decisions in case of Shyam Bihari (supra) by hon'ble jurisdiction high court and Shri Ram Jhanwar Lal (supra). In both these decisions, hon'ble high courts have held in favour of deduction of statutory allowances even where income is estimated on global basis, which has been understood by tribunal to imply that in-as-much as said allowances have not been considered or factored into by A.O. in arriving at his estimation, same being otherwise deductible, with his purview being to assess total (assessable) income under Act, would have to be given effect to. True, there is reference to Circular by Board, of which support is drawn by hon'ble courts. However, said Circular does not and cannot override law, nor is same binding on appellate authorities. premise, or underlying concern, it needs to be appreciated, is to arrive at best estimate of total income after considering all relevant provisions of law, be it qua allowance or disallowance in-as-much as assessment is to be only in accordance with law. assessee's argument thus is not valid and, accordingly, we find no infirmity in direction of ld. CIT in restoring assessment for consideration of relevant issues to file of assessing authority. We decide accordingly. 16. Patna Tribunal above has opined that argument of Assessee not legally tenable in respect of disallowance u/s.40(a)(ia) not permissible when assessment is framed on estimation basis. Tribunal come to such conclusion basing on ratio laid down by decisions in case of Shyam Bihari (supra) and Shri Ram Jhanwar Lal (supra) by Hon'ble Jurisdictional High Court wherein Hon'ble high courts have held in favour of deduction of statutory allowances even where income is ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 11 estimated on global basis. In our opinion, order of Patna Tribunal is not binding on us for reason, Hon ble High Court of Calcutta having jurisdiction was pleased to hold, already discussed above in aforementioned paras as estimation made by AO of net profit will take care o f every addition related to business income or business receipts and no further disallowance can be made. Respectfully following same, we direct AO to fix income of Assessee at 8% and, in view of same, delete all other disallowances made u/sec 40(a)(ia) of Act. Therefore, grounds raised by assessee are allowed. 17. Now, we shall deal with appeal of Revenue in ITA No.2323/Kol/2013 AY 2009-10 ITA No.2323/Kol/2013 AY 2009-10 18. In this appeal, revenue challenged order of CIT-A by aforementioned grounds of appeal. We find that CIT-A deleted addition of Rs.33,50,562/- made on account of undisclosed turnover on basis of such direction given to AO to fix income of assessee at 11% of turnover. Likewise, CIT-A also deleted additions made on account of disallowance of repair and maintenance charges, excess depreciation on dumpers and addition made u/s. 68 of Act on account of unexplained cash credit. As we have decided appeal filed by assessee, wherein we came to conclusion basing on decision of Hon ble Jurisdictional High Court of Calcutta in case of supra. Respectfully following same, we have directed AO to fix income of Assessee at 8% and delete disallowances made by AO therein. In view of same, by adopting same ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 12 conclusion arrived as in assessee s appeal, grounds raised by revenue in ITA No.2323/Kol/2013 AY 2009-10 does not require further consideration. Accordingly, grounds of revenue s appeal are dismissed. 19. In result, appeal filed by assessee in ITA No.2214/Kol/2013 for A.Y 2009-10 is allowed and appeal of Revenue in ITA No.2323/Kol/2013 AY 2009-10 is dismissed. Order Pronounced in Open Court on 30 t h September,2016 Sd/- Sd/- P.M JAGTAP S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 30 /09/2016 Copy of order forwarded to:- 1. Appellant/Assessee: Sri Hribu Bose E-58 Road No.4 New Town, Burnpur 713325(WB). 2. Respondent/Department; Income Tax Officer, Ward 1(2), Sahana Building, Lower Chelidnaga,PIN 713304, Asansol. 3. CIT 4. CIT(A) 5. Departmental Representative 6. Guard File True Copy By order Assistant Registrar ** PRADIP SPS Income Tax Appellate Tribunal Kolkata benches, Kolkata ITA Nos. 2214 & 2323/Kol/13 Shri Hribu Bose 13 Hribu Bose v. Income Tax Officer, Ward 1(2), Asansol