JUDGMENT M.Y. EQBAL, J 1. Heard Mr. Binod Poddar, learned counsel appearing for the petitioner and Mr. K.K. Vidyarthi, learned counsel appearing for the Revenue. With the consent of the parties, this case is being finally disposed of at the admission stage. 2. In this application, under Section 256(2) of the Income Tax Act, 1961 (herein after referred to as the said Act), the petitioner has challenged the order dated 17.6.1996 passed by the Income Tax Appellate Tribunal, Patna in R.A. No. 66 (Patna) of 1995 by which the said Tribunal refused to refer to this Court the question of law said to have arisen in its order dated 13.7.1995 passed in ITA 180 (Patna) 1992. 3. The brief facts of the case are as follows:– 4. The petitioner, a registered firm, said to have derived income from contract work, filed its return of income before the Income tax Officer, Ward-1, Hazaribagh, showing the total income of Rs. 1,84,732/- alongwith the audited copies of the profits and loss account and the balance sheet. The case of the petitioner was selected for scrutiny and as such notices were served under Section 143(2) and 142(1) of the said Act. The petitioner, in compliance to the said notice, appeared through its Advocate and produced the books of account. The assessing officer, after hearing the petitioner, passed assessment order for the assessment year 1988-89. By the said order, the assessing officer said to have rejected the books of account of the petitioner and estimated the net profit before depreciation @ 10% of the gross payment received by the petitioner during the said financial year and disallowed a portion of the claim of depreciation made by the petitioner. Aggrieved by the said order the petitioner preferred an appeal before the Commissioner of Income tax (Appeals), Ranchi. The Commissioner of Income tax, after hearing the parties; disposed of the appeal in terms of order dated 11.2.1992 whereby the appeal was allowed in part holding that the rate of profit applied by the assessing officer was a little excessive and it can reasonably be estimated at 8.5% of the total receipts (minus deduction before allowing depreciation). The petitioner, against the said order passed in appeal, moved before the Income Tax Tribunal, Patna Bench in Second Appeal which was registered as ITA No. 180 (Patna) 1992. The said appeal was filed u/s. 253 of the said Act. The petitioner, against the said order passed in appeal, moved before the Income Tax Tribunal, Patna Bench in Second Appeal which was registered as ITA No. 180 (Patna) 1992. The said appeal was filed u/s. 253 of the said Act. The tribunal, after hearing the parties, dismissed the said appeal by its order dated 13.7.1995. The petitioner then filed an application under Section 256(1) of the said Act for referring the matter to this Court, as the question of law is involved which needs adjudication by this Court. The tribunal, after hearing the parties, by the impugned order dated 17.6.1996 refused to state the case on the ground that not a single question of law has arisen for reference to this Court; hence, this application under Section 256(2) of the Act. 5. Mr. Binod Poddar, learned counsel for the petitioner-assessee has assailed the order of the tribunal refusing to refer the question of law arising therein as being illegal and without jurisdiction. The learned counsel submitted that the tribunal failed to appreciate the fact that the rejection of the audited books of accounts mainly on the ground that the adjusted net-profit before depreciation as shown by the assessee, was too low as against the profit shown by the assessee in the earlier years, when the nature and the mode of contract was exactly the same in the relevant assessment year. The further ground for rejection of the books of account was that the expenses claimed under 'Earth Transportation' and other head were excessive in the relevant assessment year as compared to the preceding year, and they were not fully vouched and verified and also that the stock registers for purchase of materials and their consumption in the contract work was maintained as well as there was no closing stock at the end of the accounting year, which is unusual for any business. The learned counsel submitted that no finding has been recorded by the authority as to the unacceptability of the method and irregularity of the account kept by the assessee. According to the learned counsel, in absence of such findings recorded by the authorities, the book-result cannot be ignored or brushed aside. The learned counsel submitted that no finding has been recorded by the authority as to the unacceptability of the method and irregularity of the account kept by the assessee. According to the learned counsel, in absence of such findings recorded by the authorities, the book-result cannot be ignored or brushed aside. The learned counsel further submitted that there was absolutely no reason for accepting the explanation of the assessee that the figures in the record of the department could very well show the genuineness or otherwise of the audited books of account. The learned counsel further submitted that while refusing to refer the question of law, the tribunal completely misconstrued the provisions of sub-section (1) of Section 145 and subsection (2) of Section 145 of the said Act. In support of his contention, the learned counsel relied on the decision of Md. Umer vs. Commissioner of Income tax, Bihar (1975 (101) I.T.R. 525); M. Durai Raj vs. Commissioner of Income tax, Ernakulam (1972 (83) I.T.R. 484); Surajmal Champalal vs. Commissioner of Income-tax, Bihar & Orissa (1967 (67) I.T.R. 393); Commissioner of Income tax, Madras vs. A. Krishnaswami Mudaliar & other (1964 (53) I.T.R. 122 (SC)); Commissioner of Income tax vs. British Paint India Limited (1991 (188) I.T.R. 44 (SC). 6. On the other hand, Mr. K.K. Vidyarthi, learned counsel appearing for the Revenue, submitted that there is no illegality in the order passed by the tribunal, inasmuch as, the questions of law raised by the petitioner are pure questions of fact and no question of law is involved in the facts and circumstances of the present case. The learned counsel submitted that instant case is fully covered by the judgment and order dated 15.2.1985 passed by a Division Bench of this Court in TC No. 2/94 (R) and other analogous cases and also the judgment and order dated 4.11.1992 passed by this Court in TC No. 3/1992 (R). The learned counsel further submitted that from the findings arrived at by the assessing authority, it would appear that certain entries made by the assessee in its books of account were disbelieved and not relied upon and, therefore, it is not a case of total non-consideration of the books of account, which has got a presumptive value. The learned counsel further submitted that from the findings arrived at by the assessing authority, it would appear that certain entries made by the assessee in its books of account were disbelieved and not relied upon and, therefore, it is not a case of total non-consideration of the books of account, which has got a presumptive value. The learned counsel put reliance on the decision of Ghasi Ram Todarmal vs. Income tax Officer (196 ITR 329); Banaras State Bank Limited vs. Commissioner of Income tax (198 ITR 267); Suramchand Rehlan vs. Commissioner of Income tax (193 ITR 243) and Awadhesh Pratap Singh vs. Commissioner of Income tax (210 ITR. 406). 7. Before appreciating the rival contentions made by the counsel for the parties, it would be appropriate at this stage to go through the questions of law, which are said to be involved in the instant case and the assessee sought to refer the same to this Court. According to the assessee, the following questions of law have arisen from the order of the tribunal:– (i) Whether on the facts of the case, the Tribunal was justified in law to uphold the rejection of the audited books of account maintained in the regular course of the business mainly on the ground of low net profit in comparison to the earlier years? (ii) Whether on the facts of the case, the Tribunal was justified in confirming the rejection of the accounts and estimation of net profit on the ground of excessiveness of certain expenses and their un-verifiability? (iii) Whether on the facts of the case, the Tribunal was justified in confirming the rejection of the accounts on the ground that there was no closing stock at the end of the year and no stock register was maintained for the purpose of the materials and their consumption in contract work? (iv) Whether on the facts of the case, the estimated net profit confirmed by the Tribunal is legal, valid and justified, especially in view of the fact that a much lower rate of profit was held as fair and reasonable in several other similar cases cited by the petitioner? 8. From perusal of the order of assessment passed by the Income tax Officer, it appears that the assessing authority examined the books of account produced by the assessee. 8. From perusal of the order of assessment passed by the Income tax Officer, it appears that the assessing authority examined the books of account produced by the assessee. The assessing officer found that the adjusted net profit before depreciation was too low in comparison to the net profit in the previous year when the nature and mode of contract was exactly the same. Similarly, the assessing officer further found that power and fuel account, cash purchases made on several dates were not properly vouched, nor were verifiable in absence of complete addresses. It was further found that the assessee has not maintained the day-to-day stock register of the purchases made and their consumption in the contract work. According to the authority, in absence of such documents, there was no evidence that the entire purchase made during the year has actually been utilized in execution of the work contract; it was also found that the value of the closing stock was shown by the assessee as 'nil' which was unusual for any business. The assessing officer, therefore, after going through the books of account and other papers and after hearing the assessee, held that there was no merit in the explanation given by the assessee for the low profit shown in the books of account. Accordingly, the book profit shown in the books of account was rejected. The assessing officer finally held that considering the increase in the market price of the materials during the period under consideration as compared to that of the last year, the estimated net profit should be 10% of the total receipts before allowing depreciation. 9. The appellate authority, in the appeal filed by the assessee, came to the finding that the defects pointed out by the assessing officer in the books of account were sufficient for its rejection and the estimation of net profit. However, the appellate authority came to the conclusion that the rate of net profit applied by the assessing officer was a little excessive and accordingly, it was estimated at 8.5% of the total receipts (minus deduction before allowing depreciation). However, the appellate authority came to the conclusion that the rate of net profit applied by the assessing officer was a little excessive and accordingly, it was estimated at 8.5% of the total receipts (minus deduction before allowing depreciation). The Tribunal in Second Appeal considered the orders passed by the assessing officer and also the order passed in the Appeal and held that the said orders passed by the authorities were perfectly legal and valid, inasmuch as the assessing authority has examined the records in detail and has come to the finding that the percentage of net profit disclosed by the assessee in the three preceding years were much higher than the rates disclosed in the relevant accounting years. 10. From perusal of the aforesaid, order passed by the assessing authority, it is evident that the assessing authority examined the books. of account and the relevant entries made therein, namely the profits, depreciations claimed, allowances, reservations, expenses claimed under different heads, sales tax etc. The authority came to the finding that the payment shown in the sale of disposal of items were not properly vouched and not supported by complete addresses of the suppliers. It was also found that the entries made in the books of accounts were not in consonnace with the returns filed in the previous year when the nature of work was exactly the same. The entries in respect of some items were not supported by any document. On this ground, the books of account was rejected and the rate of net-profit was estimated at 10% of the total receipts (minus deduction before allowing depreciation). However, the said rate was reduced to 8.5%. It is not the case of the petitioner assessee that the assessing authority either failed to consider some material facts and evidence, or has considered irrelevant materials as a result of which, the finding is vitiated. The contention of the petitioner is that the assessing authority failed to appreciate correctly the facts put forward by him. The further contention of the petitioner was that the books of account could not have been rejected on the ground of excessiveness of certain expenses and their un-verifiability. 11. The learned counsel for the petitioner put heavy reliance in the Division Bench judgment of this Court in Md. The further contention of the petitioner was that the books of account could not have been rejected on the ground of excessiveness of certain expenses and their un-verifiability. 11. The learned counsel for the petitioner put heavy reliance in the Division Bench judgment of this Court in Md. Umer vs. Commissioner of Income tax, Bihar (supra) wherein it was held that in absence of any finding as to the unacceptability of the method and irregularity of the account kept by the assessee, the book result cannot be ignored or brushed aside. I have gone through the judgment and I find that the said decision is distinguishable. In the case before their Lordship, the book profits were rejected by the Income tax Officer on the ground of two defects i.e. in absence of cash memo, sales were not verifiable and that certain transactions were noted in lump-sum. In that case, the Income tax Officer did not record any finding as to the unacceptability of the method and irregularity of the account kept by the assessee. Here, in the instant case, the assessing officer found that in the relevant accounting year, the expenses claimed under different heads were excessive as compared to those of the earlier years and were not fully vouched and verifiable. The assessing authority further found that the petitioner did not maintain the day-to-day stock register for purchases and their consumptions in the contract work. Even the names and addresses of the persons whom payments were made under the head 'Earth Transportation' have not been mentioned. Moreover, the payments made are not properly vouched. In such circumstances, in my opinion, the procedure adopted by the Income tax Officer in passing the order of assessment cannot be said to be vitiated in law or not in accordance with law. It is well settled that if the Income tax Officer is not satisfied about the correctness or completeness of the accounts of the assessee, or where no such method has been regularly employed by the assessee, the Income tax Officer may make an assessment in the manner provided under the Act. It is well settled that if the Income tax Officer is not satisfied about the correctness or completeness of the accounts of the assessee, or where no such method has been regularly employed by the assessee, the Income tax Officer may make an assessment in the manner provided under the Act. As stated above, it is not the case of non-consideration of the books of account, although it has got presumptive value, but it is a case where the Income Tax Officer has examined the books of account and has gone in detail of each and every entries and has come to the conclusion that the entries made therein were not correct. In that view of the matter, the rejection of the books of account cannot give rise to any question of law. I have also gone through the decision cited by the learned counsel and I am of the opinion that those decisions do not help the petitioner in the peculiar facts and circumstances of the present case. 12. For the reasons aforesaid, I do not find any reason to direct the Income Tax Appellate Tribunal to state the case and refer the alleged questions of law involved in the order of the Tribunal. 13. This application is, accordingly, dismissed.