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2011 (8) TMI 658 - KARNATAKA HIGH COURTUnaccounted sale outside the territory - determination of sale price - So far as the sale price of unaccounted arrack outside the assessee's own territory is concerned, the Tribunal has fixed the same at Rs. 1.60 Ps. plus Excise duty of Rs. 2 per sachet. The assessee has admitted that he has not included the Excise duty in the sale price. Having regard to the fact that the assessee cannot sell arrack directly to the consumers outside his own territory and the same has to be sold to the contractors outside his own territory, the sale price taken by the Tribunal at Rs. 1.60 Ps. per sachet plus excise duty of Rs. 2 per sachet cannot at all be said to be arbitrary or perverse. - the said finding of the Tribunal is justified and does not suffer from any arbitrariness or perversity - Decided against the assessee. Set off of claim - The assessee claimed that he is entitled to set off of the undisclosed income computed in respect of unaccounted sale of arrack against the income shown as miscellaneous income for the assessment year 2001-02 amounting to Rs. 8,76,75,000 and during the block period, he had assigned miscellaneous income amounting to Rs. 37,34,44,099 for the assessment years 1989-90 to 2001-02. - Tribunal has arrived at the finding that the assessee is entitled to set off of Rs. 6,00,00,000 against the undisclosed income from arrack business for the year 2001-02 and also for the block period - held that:- The said reasoning of the Tribunal is clearly erroneous and cogent and consistent reasons had been given by the Assessing Officer and the appellate authority for rejecting the said claim of the assessee for set off. Therefore, the benefit of set off given to the assessee by the Tribunal cannot at all be sustained and the same is liable to be set aside as it is perverse and arbitrary - Decided in favor of revenue. Inclusion of Excise duty in the sale price of sachet as also the levy of surcharge - held that:- the inclusion of the said Excise Duty is unassailable and levy of surcharge and interest is also justified in view of the decision of the Hon'ble Supreme Court in Rajiv Bhatara's case (2009 -TMI - 32440 - SUPREME COURT), wherein it is held that in search and seizure proceedings in respect of block assessment, levy of surcharge even without the proviso to section 113 inserted vide Finance Act, 2002, with effect from 1-6-2002 is justified and the proviso to section 113 is clarificatory in nature. - Decided in favor of revenue.
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