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4. The AO was also heard by the CIT(A) and he stated that except filing certain details on books of account were produced and no vouchers were produced for verification. He further argued that the provisions of s. 44AE are mandatory and are applicable when trucks owned are 10 or less and that the assessee gets a premium if income returned is accepted and, therefore, the Art. 14 of the Constitution is violated.

5. The CIT(A) considered the submissions and arguments and perused the entire materials on record and came to the conclusion that the assessee's case is not covered by s. 44AE as he derives income from more than 14 trucks but at the same time he observed that it does not mean that the basis for computing income as given in that section cannot be applied in assessee's case. He also found that the assessee has not maintained proper books of account and the accounts are not correct and complete and that mere giving details of expenses is not enough. According to him, as the expenses are unverifiable, income from truck plying has to be estimated on some realistic basis. He entirely agreed with the AO's argument and held that any interpretation other than his interpretation would be violation of Article 14 of the Constitution, which guarantees equality before law. He also pointed out that the returned income of last two years was accepted because provisions of s. 44AE were then not operative. He, therefore, confirmed the estimation of income by applying the same yardstick of s. 44AE i.e., at the rate of Rs. 24,000 per truck per annum.

6. Being aggrieved, the assessee has preferred this appeal to the Tribunal. The learned counsel for the assessee submitted that all receipts are admittedly vouched and are verifiable. He further submitted that the AO did not verify the expenses although vouchers were available as per paras 10 and 11 of the assessee's submission placed at p. 2 of the paper book. He also invited our attention to assessee's note placed at p. 5 of paper book and assessee's letter to AO placed at p. 7 of paper book and submitted that the assessee has maintained accounts, but no attempt was ever made to examine the accounts and verify the expenses. The representative of the assessee reiterated before us as well that the assessment in past assessment years, i.e., 1992-93 and 1993-94 were completed after search and returned income was accepted and that the assessee has shown better results for asst. yr. 1994-95. It was further submitted that the CIT(A) was unduly influenced by the AO's oral remark that the assessee was uncooperative and for that neither the record nor the assessment order speaks of it. He invited our attention to para 2 of the CIT(A)' order and contended that the Department has taken contradictory stand as on one hand the CIT(A) has mentioned that the books of account and documents were seized and on the other hand the AO has remarked that it cannot be said that the assessee has maintained any books of account. The learned counsel for the assessee also contended that the provisions of s. 44AE are not applicable to the assessee and that the CIT(A) himself records a finding that last two years" income were accepted as provisions of s. 44AE did not then operate. According to the representative of the assessee such provisions do not apply to the assessee even this year as 14 trucks are owned by the assessee. It was further contended that the provisions of s. 44AE are not mandatory but they are subject to the provisions of sub-s. (6) of s. 44AE. He also pointed out and contended that the CIT(A) is not competent to comment on the intention of the legislation and cannot call in question the classification of assessees made by the legislation. In order to support his argument and contention, he placed reliance on following decisions :

23. In his order the CIT(A) has stated that the returned income of last two assessment years was accepted because provision of s. 44AE were then not operative. While commenting in such a manner the CIT(A) has contradicted himself. In the beginning of para 3 of his order on one hand he has mentioned that since the assessee derives income from more than 14 trucks his case is not covered by s. 44AE while on the other hand in the same very para he has observed that the returned income of last 2 assessment years was accepted because provisions of s. 44AE were not operative. Since the assessee was owning 11 trucks in asst. yr. 1992-93 and 12 trucks in 1993-94 the provisions of s. 44AE would not have been applicable had the same section been in operation.

24. Although it is a futile exercise on our part to deal with applicability of provisions of s. 44AE, yet because much has been argued by both the sides, it has become imperative and essential on our part to decide the matter on merit. We have already held that the Department has not made out a case either under s. 145(1) or 145(2) to enable it to estimate the income of the assessee. Without making out such a case for estimating the income the Revenue authorities have jumped to the conclusion to estimate the income as per rationale and yardstick laid down in s. 44AE. Thus, the Department has placed much more emphasis on mode and manner in which the income of the assessee is to be estimated and while doing so their conclusion has become subjective and suffers from several legal infirmities. It is noticed that the AO has applied the provisions of s. 44AE without mentioning this section in his order and the CIT(A) has confirmed the estimate at the rate of Rs. 24,000 per truck per annum although according to him the assessee's case is not covered by the provisions of s. 44AE. According to the CIT(A) a person having more number of trucks cannot be at premium as compared to a person having less number of trucks, for tax purposes and any interpretation other than this would be violation of Art. 14 of the Constitution, which guarantees equality before law. Like CIT(A) the learned Departmental Representative has also justified the action of the AO on the ground that the provisions of s. 44AE are not invoked by the AO but only rationale and yardstick laid down in that section has been adopted.