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2012 (8) TMI 299 - AT - Income TaxRejecting application for rectification of mistake - mistake in sales for 2 months - Held that:- As per the Tribunal order in the first round, it was directed by the Tribunal that the sales of two months i.e. 01.01.2000 to 29.02.2000 should be estimated but there is no such direction by the tribunal that the same has to be estimated on the basis of sale for six months i.e. from 01.07.1999 to 31.12.1999. Therefore such estimation has to be made as close as possible to the actual figure - As the A.O. himself noted the sale figure from 01.12.1999 to 26.02.2000 and the sale figure for Dec 1999 is separately available there is no requirement to estimate the sale from 01.01.2000 to 26.02.2000 because the actual sale figure for this period can be easily worked out by reducing the sale figure of De 1999 form the sale figure of 01.12.1999 to 26.02.2000 - direction to A.O. to adopt the estimated sale figure of two months from 01.01.2000 to 29.02.2000 at Rs.74,81,858/- and thus assessee gets relief of Rs.12,55,994/- over and above the relief allowed by the A.O - partly in favour of assessee. Mistake in amount of expenditure allowed - Held that:- As the tribunal in the first round noted that chart submitted by the assessee as per which it was claimed by the assessee that the A.O. has not allowed in full the deduction being the difference of expenditure claimed in the receipt and payment account and in the P & L account. The tribunal has restored back the matter to the file of the A.O. for examination of this contention of the assessee and to decide the matter afresh. The A.O. has allowed deduction of Rs.47,87,106/- without giving any basis for working out of this amount as against claim of the assessee - as in the interest of justice, this matter should go back to the file of the A.O. for a fresh decision - in favour of assessee for statistical purposes Mistake in not granting deduction of sales tax - Held that:- As per the computation of income filed by the assessee for the AY. 1997-98, and as per the assessment order for this year u/s 43B it is seen that there was unpaid sales tax as on 31.03.1997 as per books of account out of which an amount of Rs.10,11,681/- was for the period up to 31.03.1996 and the sales tax outstanding for the financial year 1996-97 was Rs.7,24,521 - assessee is having collection of sales tax as per books and the same is not credited to the sales account but credited to liability account - the A.O. should examine the records afresh to find out as to how much sales tax was collected during the block period and credited to the liability account without crediting to the sales account as per the books of account. He should also find the deferment of sales tax as permitted by the State Government - in favour of assessee for statistical purposes. Disallowance of claim of debit under the head ‘debtors’ is in the nature of discount and commission - Held that:- As it is evident that the less sales shown by assessee is because of less number of boxes sold and not because of any discount or commission being reduced from the gross sales as assessee has not brought on record any evidence to support the contention that there is general trade practice in this line of business of allowing cash discount to trades and which is separately paid to them - unable to accept the assessee’s contention that debit under the head ‘debtors’ in the receipt and payment account reflects payment of discount and commission by the assessee on the sales - as every outgoing is not an expenditure and burden is upon the assessee to establish that any outgoing is in the nature of an expenditure incurred for the purpose of business. The assessee except making a claim that debit under the head ‘debtors’ is in the nature of discount and commission has not brought on record any evidence to support this claim - that the amount debited in the receipt and payment account is payment to debtors is not an allowable expenditure - against assessee. Penalty u/s. 158BFA(2) - Held that:- As penalty u/s 158BFA(2) is not mandatory - in the facts of the present case, a person of reasonable prudence can have this possible view that no undisclosed income is arising on the basis of seized material and, therefore, even though addition is confirmed by the Tribunal, penalty is not justified because there is a reasonable and bona fide reason due to which assessee was having a possible view that no undisclosed income is arising out of the seized material and, therefore, penalty u/s 158BFA(2) is not justified - in favour of assessee.
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