ORDER 20.08.2018. Mr. S.S. Mohapatra, learned Senior Standing Counsel enters appearance on behalf of the Income Tax Department and files the Memo of Appearance in Court today. The same be kept on record. Heard Mr. J.M. Patnaik, learned Counsel for the petitioner and Mr. S.S. Mohapatra, learned Senior Standing Counsel (Income Tax). This Income Tax Appeal is taken up for consideration on the following substantial question of law: iii. Whether the learned I.T.A.T., Cuttack Bench, Cuttack is justified in one hand agreeing that Section 44 AD of the I.T Act is not attracted and on the other hand holding that in absence of the part record of the assessee estimation can be made keeping in mind the provisions of Section 44 AD of the Act ? Challenge in the present Income Tax Appeal has been made to an order dated 26.5.2015 by which order the learned Income Tax Appellate Tribunal dismissed the appeal filled by the petitioner-assessee, i.e. I.T. No.89/CTK/2015 for the assessment year 2010-2011 and affirmed the order passed by the CIT Appeal. Learned Counsel for the appellant places reliance on a judgment of the Apex Court in the case of Awasthi Traders v. Commissioner of Income Tax and another reported in (2016) 388 ITR 158 (SC) and submits that the gross turn over of the appellant during the assessment year in question, i.e. 2010-2011 was more than a sum of Rs.5 Crores and although the assessee’s accounts for that year was duly audited and books of the accounts for the concerned year were produced before the Assessing Officer the same was rejected inter alia on the ground that the assessee failed to produce his books of accounts for the previous year. He also submits that in any event the turn over of the appellant being more than Rs.40 lakhs as provided under the proviso to Section 44 AD of the Income Tax Act, 1961, the said provision ought not to have been applied to the case of the petitioner and it was the bounded duly of the Assessing Officer to assess the petitioner based on the records produced by the assessee as well as the audit report submitted before it. He asserts that in view of the proviso to Section 44 AD, the estimate of 8 per cent as done thereunder is legally impermissible. He asserts that in view of the proviso to Section 44 AD, the estimate of 8 per cent as done thereunder is legally impermissible. Admittedly, the turn lover in the present assessee’s case is much more than Rs.40 lakhs, i.e., Rs.5 Crores. Apart from that the claim of depreciation ought to have been accepted in terms of the proviso of the Income Tax Act and the Rules thereunder. Therefore, the assessment could not have proceeded on the basis of an estimate done under Section 44 AD, which is wholly inapplicable in the present case. Sri Patnaik further submits that the learned Tribunal in various orders prior to the impugned order being passed and even thereafter has held that where Assessing Officer adopts net profit rate in making assessment to the best of his judgment allowing depreciation required to be made. In view of the judgment rendered by the Apex Court in Awasthi Trader’s case (supra) and the judgment of the learned Tribunal, Cuttack Bench, Cuttack, we set aside the impugned order under Annexure-1 as well as the assessment order dated 16.1.2013 and the appellate order dated 24.1.2014 and remit the matter back to the Assessing Officer to proceed afresh strictly in accordance with law without applying section 44 AD of the Income Tax Act to the facts situation of the present case by considering the judgment of the Apex Court as well as the earlier judgment of the tribunal referred hereinabove. Such reassessment proceeding should be completed within a period of four months from today. The writ application is accordingly disposed of. Issue urgent certified copy. Application disposed of.