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TAXAP/491/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 491 of 2010
=========================================================
COMMISSIONER
OF INCOME TAX - I - Appellant(s)
Versus
M/S
SEJAL JEWELLERS - Opponent(s)
=========================================================
Appearance
:
MR
MANISH BHATT, SR COUNSEL
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 04/10/2011
ORAL
ORDER
(Per
: HONOURABLE MS JUSTICE SONIA GOKANI)
Revenue
has challenged order of the Income Tax Appellate Tribunal dated
15.9.2009 proposing following questions of law for consideration of
this Court :
“(i) Whether,
on the facts and in the circumstances of the case, the Income Tax
Appellate Tribunal is right in law in restricting addition of
Rs.12,95,242/- made by the Assessing Officer to Rs.5,41,971/- on
account of law gross profit?
(ii) Whether,
on the facts and in the circumstances of the case, the order of the
Income Tax Appellate Tribunal is suffering from the vice of
non-application of mind, contrary to the evidence and material on
the record of the case and, hence perverse or not?
(iii) Whether,
on the facts and in the circumstances of the case, the order of the
Income Tax Appellate Tribunal can be termed as reasoned order in the
eye of law?”
On
hearing learned counsel Shri Manish Bhatt and on having regard to
the orders of the adjudicating authorities, this appeal is decided.
It emerges from the record that the Assessing Officer noticed that
assessee had shown the gross profit at the rate of 11.42% in the
pre-survey period whereas there was loss of Rs.2,44,694/- in the
post survey period. After detailed discussion, the Assessing Officer
chose to adopt gross profit rate on the total turnover based on
purchase and selling price of the gold for year under consideration
at 13.88% as was declared in the earlier assessment year and thereby
added sum of Rs.12,95,242/-. This addition was challenged by the
assessee before CIT(Appeals) which deleted sum of Rs.2,04,310/- and
confirmed the remaining amount by a detailed order. Same was further
challenged before the Tribunal by both the sides and by a common
order, the Tribunal partly allowed the appeal of the assessee and
dismissed the Revenue’s appeal by observing thus :
“6.
We find that the assessee has declared GP of Rs.422981/- on sales of
Rs.30,46,988 in Assessment Year 2002-03 whereas the figure in
Assessment year 2002-03 are Rs.4531963/- and Rs.9552824/-in AT
2003-04 respectively. Thus, GP of last year was 13.88% and in the
current year 4744%. The assessee has maintained regular books of
account which are supported by purchases and sales vouchers, bank
pay in slip, cheques daily inventory register, labour charges and
receipt book. All these books are maintained on day to day basis and
it is found on the day of survey and also cash books was also found
on the day of survey. The assessee has produced all the books of
accounts which were audited u/s.44AB of the Act and there was no
adverse remarks by the Assessing officer and defects were found by
Assessing Officer. We find that the assessee was maintaining all the
books of accounts. Therefore, we are of the view that 50% of
Rs.10,97,923/- would be fair and reasonable in the facts and
circumstances of cases. Accordingly, we delete 50% of Rs.10,97,923/-
retain the balance. The assessee will get the benefit of
Rs.5,48,961/-. Therefore, GP was taken at Rs.12,95,242/- –
5,48,961/- =7,46,291/-. The CIT(A) has given relief of Rs,
2,04,310/- and in addition to this we have also given relief of
Rs.5,48,961/-. Therefore, it comes to we also given the relief of
Rs.7,53,271/- Accordingly, ground no.1 of assessee’s appeal is
partly allowed and dismiss the revenue’s appeal on ground no.1.”
As
can be noted from the findings of the Tribunal, Tribunal satisfied
itself with regard to the maintenance of books of account by the
assessee and its substantiating the same with requisite materials
and therefore, it had a valid base for deciding the facts presented
to it. Thus as is apparent, the issue is essentially based on facts
which were presented before the Tribunal. It appears that Tribunal
has taken good care assessing the issue and also had elaborated
factual details before arriving at such conclusion, which in opinion
of this Court does not require any interference. There is no other
question of law to be considered by this Court much-less substantial
question of law. Tax Appeal is therefore, dismissed.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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