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TMI Blog2017 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... y, it had excluded the items which are now ordered to be excluded by the Tribunal. If that be so, the assessee could not have contended that for the assessment year in question, the Revenue should not have estimated its gross turnover including the items that are now ordered to be excluded. Yet another fallacy in the order of the Tribunal is that, the Tribunal has ordered that 0.44% be estimated on ₹ 59,45,76,475/-. According to us, if it is to be so estimated, firstly, the percentage of the gross profit should have been worked out on the reduced gross turnover applying the gross profit of ₹ 14,99,85,294/-. If it is so done, the percentage of gross profit for the Assessment Year in question would have been 25.23%, and if so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found it appropriate to consider gross profit, instead of net profit, as the basis for levy of tax. Thereafter, the first appellate authority made reference to the gross turnover, gross profit and percentage of gross profit returned by the assessee for the Assessment Years 2009-10, 2010-11 and 2011-12 and found that average gross profit returned was 16.94%. Then, he took note of the fact that for the assessment year in question, the assessee had returned gross profit at 16.5% only. On that basis, it was ordered that 0.44%, being the difference in the average gross profit and the returned gross profit, should be applied and ordered that the addition to total income be restricted to ₹ 39,83,347/-. 3. The assessee carried the matter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 24,39,40,964/- and the cost of shuttering materials at ₹ 5,05,85,544/-, Kerala VAT at ₹ 1,12,17,821/-, Goa VAT at ₹ 3,95,726/- and other expenses where no profit element has been involved, were not excluded which totals to ₹ 31,07,29,889/-. Therefore, the said amount of ₹ 31,07,29,889/- included in the turnover, has to be essentially excluded while estimating the income and accordingly, the Assessing Officer is directed to apply the gross profit rate of 0.44% after excluding the said turnover of ₹ 31,07,29,889/- at ₹ 59,45,76,475/-. It is ordered accordingly. Thus assessee gets the part relief and appeal of the assessee is partly allowed. 4. It is this order which is challenged befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted, there cannot be any justification for excluding any of the items while computing the total turnover of the assessee. 9. Insofar as this case is concerned, the turnover has been returned by the assessee itself and such returned turnover of the assessee included the items which are now ordered to be excluded by the Tribunal. Further, the assessee itself has no case that in the gross turnover for the previous years relied on by the first appellate authority, it had excluded the items which are now ordered to be excluded by the Tribunal. If that be so, the assessee could not have contended that for the assessment year in question, the Revenue should not have estimated its gross turnover including the items that are now ordered to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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