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TAXAP/804/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 804 of 2010
with
TAX
APPEAL No. 805 of 2010
=========================================
COMMISSIONER
OF INCOME TAX - IV - Appellant(s)
Versus
M/S
NABROS - Opponent(s)
=========================================
Appearance :
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 19/07/2011
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Revenue
has challenged judgement of the Income Tax Appellate Tribunal dated
20.11.2009 raising following two questions for our consideration:
“A. Whether
the Appellate Tribunal is right in law and on facts in reversing the
order passed by CIT (A) and thereby deleting the addition of Rs.
15,03,885/- out of total addition of Rs. 30,70,018/- made by the
Assessing Officer on account of diversion of profit?
B. Whether
the Appellate Tribunal is right in law and on facts in reversing the
order the order passed by CIT(A) and thereby deleting the
disallowance to Rs. 8,79,100/- out of total
disallowance of Rs. 18,82,700/- made by the Assessing Officer on
account of tyre purchases?”
2. We
have heard learned counsel for the revenue and perused the orders on
record.
3. With
respect to question No. B, we find that the same is based primarily
on facts. The Tribunal having come to factual conclusion on the basis
of evidence on record, we do not see no questions of law arises. We
also noticed that Tribunal opined that the additions made by the
Assessing Officer and confirmed by the CIT(A) were on the basis of
surmises and conjectures without any supporting materials or evidence
on record. In that view of the matter, so far as question B is
concerned, we are not inclined to entertain the same.
4. With
respect to question No. A, counsel for the revenue drew our attention
to the order of the Tribunal and particularly the observations made
in para 5.2 thereof which reads as under:
“5.2 We
noted that in fact the total vehicles employed for the job work were
15 and 14 as observed by the AO, out of which 6 vehicles belonged to
M/s. Nabros i.e. assessee and 9(nine) vehicles belonged to NTPL. No
doubt, the total freight receipt by NTPL is Rs. 69,69,000/-. The AO
worked out the average freight receipt per vehicle and on that basis
calculated the receipt of 6 vehicles what ought to have been received
by M/s. Nabros, the assessee amounting to Rs.
13,60,800/- made and on that basis since the assessee accounted for
Rs. 8,60,000/- made the addition of Rs. 5,00,800/- which was
confirmed by the CIT(A). We have gone through the details of the
vehicles and the list of items which have been transported by the
assessee from Kandla and Kevadia as given in pages 4 & 5. The
actual receipt of freight by NTPL in respect of 6 vehicles belonging
to M/s. Nabros is Rs. 7,25,000/- and not Rs. 13,60,800/- as has been
assumed by the AO. The assessee has received the sum of Rs.
8,60,000/- against the actual freight receipt by NTPL at Rs.
7,25,000/-. On this basis, we are of the view that no addition
can be made as the assessee has not received the freight much more
than what has been actually received by NTPL. We, therefore, delete
the addition of Rs. 5,00,800/-.”
5. Counsel
for the revenue submitted that the observations of the Tribunal that
actual receipt freight by NTPL in respect of six vehicles belonging
to the assessee was Rs. 7,25,000/- and not Rs. 13,60,800/- as
adopted by the AO, is an apparent error since there is no evidence to
come to such a conclusion particularly in pages 4 and 5 of the list
supplied by the assessee and perused by the Tribunal.
6. If
this be the case, it would be open for the revenue to approach the
Tribunal for rectification of the order. If such application
is filed, the same may be considered on merits considering that the
revenue had pursued the present tax appeals which were filed in time.
With above observations, the Tax Appeals are disposed of.
[AKIL
KURESHI, J.]
[SONIA
GOKANI, J.]
JYOTI
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