9911796707
TMI Blog2008 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Assessing Officer on account of undisclosed sales of potato left by the stores by adopting the rate of potato at the rate Rs. 45.65 per quintal though other assessees of the same trade like M/s. Shri Mahavir Cold Storages, M/s. Shyam Cold Storage have shown the sale of potatoes in the same period at the rate Rs. 140 to 160 per quintal. (3) The order of the Ld. Commissioner of Income-tax (A) being erroneous in law and on facts, be set aside that of the Assessing Officer be restored." 3. The following grounds have been raised by the assessee:- "(1) The learned Commissioner (Appeals) has erred in confirming the addition to the extent of Rs. 2,86,283 after taking this amount as difference of surrendered income of Rs. 15,00,000 and Rs. 12,13,717 (Rs. 9, 13,317 short, realisation in cold storage rent after the Survey + Rs. 3,00,000 surrendered by the appellant as income over and above the income as per profit and loss account Rs. 2,24,921). (2) The learned Commissioner (Appeals) has erred in rejecting the appellant's contention that returned income of Rs. 5,24,921 takes care of the aforesaid shortage of Rs. 2,86,283. (3) The learned Commissioner (Appeals) has erred in ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings it was observed that assessee has not shown income from sale of potatoes left by the storers though the partner of the firm admitted in his statement recorded on oath on 7-12-2000 at page 11 that potatoes left by the storers were purchased by the firm. The statement of one storer Shri Ram Singh who was present in the business premises of the firm at the time of survey was also recorded and was seen and signed by the partner Shri Pradeep Kumar. Shri Ram Singh stated in his statement that he has sold his potatoes stored in the cold storage to the assessee's firm at the rate of Rs. 30 and Rs. 20 per packet. He has also stated that other storers also have sold their potatoes to the firm. Undisclosed sale of the potatoes has also been admitted by the assessee in his statement as in furtherance of that he has made disclosure of income in his statement. The assessee was asked to explain vide order sheet entries dated 17-2-2004 about the purchase and sale of potatoes left over by the storers. The assessee filed his reply dated 3-3-2004 stated that he has shown the purchase and sale of the potatoes and expenses incurred thereon. I have perused the reply dated 3-3-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of Nikasi is paid to Palledars of cold storages as declared at page 3 of the statements." This also finds confirmation from the order sheet noting dated 32004 wherein the assessee expressed his inability to either identify or produced the buyers to whom the last left over potatoes were sold at thrown-away price. Total bags of potatoes shown sold 20138 Weight in Kg. @ 65 Kg. per bag 20138 X 65 Kg. = 13,08,070 Weight in quintals 13090 Quintals Total receipts from the sale 13090 X 138.5 = 18,12,965 @ Rs. 138.5 Less: Expenses as shown 18,479 --------- 17,94,486 Less: Sale disclosed as remain 6,17,275 --------- Undisclosed sale 11,77,211 --------- Thus, undisclosed sale of potatoes and rent realised therefrom worked out at Rs. 1177211 and as has not been disclosed by the assessee, the same is added in the total income of the assessee." (As per the translated copy kept on record by the learned A.R., the relevant portion reproduced from page 108 of the Paper Book in response to question No. 26) 6. Aggrieved by this the assessee went in appeal before the First Appellate Authority. The submissions made before the CIT(A) are recorded in pages 3 and 4 of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tato was too low and the sale proceeds of 1 quintal potato were less than Rs. 80 which is the cold storage of 100 potatoes. Thus on account of this fact the storers were not taking delivery of the potato stored by them. It was submitted that the statement of Suresh Kumar would show that the sale rate of 1 kg. of potato at Indore was Rs. 125. This was after paying truck rate to and fro from Indore and commission expenses etc. and thus the net average sale rate after deducting these costs would come to Rs. 40 per quintal. 8. The assessee also enclosed News Paper cutting for the relevant period namely around the first week of December wherein the sale price to stores had been mentioned at Rs. 30 to Rs. 40 per quintal. 9. The reference made to the names of Shyam Cold Storage and M/s. Shree Mahaveer Cold Storage, Farrukhabad for the sale rate of potato was assailed on the ground that during the assessment proceedings the Assessing Officer never communicated the names of these parties to the assessee for comparison and the said procedure was alleged to be contrary to law. 10. The submission on behalf of the assessee were confronted to the Assessing Officer as per page 6 para 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intal will be Rs. 7046.00/154.35 = Rs. 45.64. In view of the facts and figures mentioned, above, the addition of Rs. 11,77,211 by applying a sale rate of Rs. 138.50 per quintal is incorrect. Therefore, the addition of Rs. 11,77,211 on account of undisclosed sale of potatoes left by the storers does not survive and is hereby deleted. The left over potatoes by the storers of 20,138 bags were sold between 23-11-2000 to 17-2-2001 is verifiable from the copy of potato sale account. From 23-11-2000 to 7-12-2000 out of the left over potatoes, the appellant sold 5900 bags. In this account sale of potatoes are by cash as well as by drafts. The Assessing Officer understood that 20,138 bags were sold up to 72000 which was the date of survey. Thus, the Assessing Officer's observation that how 20,138 bags of left over potato could be sold when stock found at the time of survey was of about 17060 bags only is not based on proper understanding. As regards loading/unloading register, it is revealed that loading of potato took place between 11-2-2000 to 31-3-2000 (Shri Pradeep Kumar, partner, in his statement on oath by memory told that loading was done up to 1st week of April, 2000 and unloading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osting in loading and unloading register. It was submitted that this fact of incomplete posting has been pointed out by the Assessing Officer himself and this fact has not been disputed by the assessee and has been admitted by the assessee also. It has also been taken into consideration by the CIT(A). The difference it was submitted was explained in the assessment proceedings by the assessee in the following manner:- "Potato Bags No. of Bags stored 97,313 Rent received 74,404 ------ 22,909 Bags left by storer which were sold to recover rent on account of unprecedented conditions existing during the year 20,137 ------ Potatoes rotten and thrown 2,772" ------ 16. Referring to the synopsis it was submitted that the assessee reconciled the alleged difference of 11,274 bags i.e., between the balance as per loading-unloading register which was posted upto 21-11-2000 and physical verification on 7-12-2000 during the course of survey as under:- "Delivery made period 22-11-2000 to 7-12-2000 not posted in unloading register 4,981 Bags sold upto 7-12-2000 to realised-unrealized rent of Potatoes left by farmers due to unprecedented conditions, as rent could not be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the rental was Rs. 80 per quintal which fact has not been rebutted by the revenue. The farmers admittedly were unable to pay the rent and chose to abandon the potatoes. The Newspaper cutting placed at pages 86 to 89 affirming these facts were also relied upon. 20. We have heard the rival submissions and perused the material available on record. On a careful consideration of the same, we find ourselves unable to come to any other conclusion than the one arrived at by the CIT(A). It is seen that each and every argument and fact taken into consideration by the Assessing Officer has been assailed by the assessee right from the assessment proceedings by way of documentary evidence. The Assessing Officer and the learned D.R. on the other hand have placed reliance on the factum of the discrepancies in the assessee's books of account and what was found recorded up to the time of survey. The factum of incomplete recording of loading and unloading Register has been duly accepted by both the parties. The fact that the rental of cold storage was Rs. 80 per quintal is also a fact on record which is an admitted fact. Apart from the evidences led by the assessee from its own books of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 published in Dainik Jagran addressing the aspect of existence in cold storage of huge amount of potato as a result of which the farmers are hesitant to step out of their houses apprehending rental recovery by the Cold Storage owners who are also engulfed in losses of huge magnitude. Accordingly, in the peculiar facts and circumstances of the case, we find no good reason to interfere with the conclusion arrived at by the CIT(A) which are based on the reasoned facts and evidences which have not been rebutted by the revenue. Being satisfied by the finding arrived at in the impugned order, ground No. 2 raised by the revenue is rejected. 21. The facts pertaining to ground No. 1 are that due to the discrepancy noted by the survey team making note of the fact there was a shortage in the stock, the Assessing Officer required the assessee to explain the same. The explanation of the assessee that the discrepancy was due to incomplete posting in the loading and unloading register was not accepted by the Assessing Officer The undisclosed stock was estimated at Rs. 25,000 and an addition of Rs. 22,75,000 was made in the following manner:- "(2) Income on account of own trading:- During th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o stated that after receiving the draft he opened saving bank account with Bank of Baroda and after encashing the draft the account was closed. He also stated that no any other bank accounts are there either in his own name or in his family member's name. I have perused the statement of Shri Shyam Mohan Dubey and his statement appears to be concocted story as he had no means to purchase the potatoes nor have any agricultural land to grow the potatoes. Even he has not done any business of purchase and sale of potatoes as has been stated by him in his statement. Not only the above-mentioned drafts but also other drafts were received in the name of the Shyam Mohan Dubey. Though the sale proceeds through draft have been received in the name Shyam Mohan Dubey but this is merely a device to convert the drafts in money. It is also notable that the account was opened after the survey to legitimize the sale proceeds. From the above it is clear that assessee carries on his own trading of the potatoes which is further evidenced from the fact that sale proceeds through draft vide bill number 3086 found during the course of survey is in the name of the assessee. Also the assessee has declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire storage content belongs to the third party. It was also submitted that no evidence or material was found during the survey to indicate that the assessee stored 35000 bags of potatoes. It was further submitted that during the assessment proceedings no efforts were made by the Assessing Officer to point out that any particular storage appearing in the loading and unloading register in fact belonged to the assessee. It was submitted that in the 3 chambers 15060 bags were found during the survey and loose potatoes above 2000 bags was found in the veranda. As per the loading and unloading register which was written only 21-11-2000, 28033 bags and packets were in stock. Accordingly there was shortage of 11274 bags. It was submitted that the shortage was on account incomplete posting of loading and unloading register out of 11274 bags rent of Rs. 4,981 bags between 22-11-2000 to 72000 had been received. However, it had not been posted in loading and unloading register. In regard to the remaining 6293 bags, the same were left by the storers without paying cold storage rent. The absence of delivery order pointed out by the Assessing Officer it was submitted was evident from the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the left over potatoes by the storers and some potatoes purchased by him on credit from the storer. The purchase by the assessee from the storer was on a very small scale and it was argued there is no material on record to hold that the assessee was making large scale purchase of potatoes. It was submitted that the action of the Assessing Officer in estimating the assessee's own trading at 25000 bags is without any basis or evidence. It was submitted that since the assessee has already in the return filed surrendered an income of Rs. 3 lakhs on account of own trading etc. which is more than sufficient. It was submitted that no evidence has been led by the Assessing Officer to presume that the capacity of the assessee's cold storage was over and above 97267 bags to further accommodate 25000 bags. 27. These submissions were forwarded by the CIT(A) to the Assessing Officer. The Assessing Officer in the Remand Report did not accept the contention of the assessee. It was his submission that no evidence in regard to abandoning of potatoes and non-receipt of rent has been placed on record by the assessee. It was also his submission that the contention of the assessee that the entrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions the addition was deleted by the CIT(A) observing as under:- "(6) Addition on account of Trading Rs. 22,75,000:- It was reiterated by the appellant that the appellant has not stored any potato on its own account, which fact was stated in the statement on oath of Pradeep Kumar, partner, during the survey proceedings. It was also argued that in the course of assessment proceedings the Assessing Officer never pointed out that any particular storage appearing in the loading/unloading register belonged to the appellant. During the year under consideration the position of storage etc., is shown as under:- (i) Bags and packets stored by third parties 97,313 (storage capacity is of 90000 bags approx, thus storage is slaightly above the capacity). (ii) Rent received of 74404 bags (accepted) by 74,404 bags the Assessing Officer from third parties. (iii) Potato left by the storers which was sold 20,137 bags by the appellant. (iv) Bags of rotten potato thrown (accepted by 2,772 bags the AO) During the survey on 7-12-2000 loading and unloading register found was written up to 21-11-2000 thus unloading part of this register was incomplete and potato unloaded from 21-11-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o established on facts. The appellant argued that the Assessing Officer in the assessment order has not given any reference of storage of Ramanand nor in the assessment proceedings confronted the assessee with the statement of Ramanand and thus had no opportunity to cross examine this storer. Therefore, at this stage, statement of Ramanand is not admissible under law. It was further argued that while estimating the appellant's own storage of 25000 bags, the Assessing Officer has not kept in mind the total storage capacity of the appellant's cold storage. In view of the facts stated above the addition of Rs. 22,75,000 on account of alleged undisclosed own trading is not based on proper grounds. Therefore, this addition of Rs. 22,75,000 is deleted hereby." 29. Aggrieved by which the revenue is in appeal before the Tribunal. 30. Learned D.R. placed heavy reliance upon the Assessment Order and the Remand Report reproduced in the impugned order. On the basis of that it was his submission that the discrepancy in the books of account and the fact as found during the survey and as per the record made by the assessee having been brought on record. It is also his submission that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time when the old potatoes in the cold storage was already rotting and the new potatoes had also flooded the market the assessee has been argued and evidence in support has been led. Thus, after putting this fact by way of a public notice through its Association with local Newspaper it was compulsorily and necessarily had to be sold in order to recover whatever costs it could so as to reduce its probability of loss. The factum of gate passes without any signatures of the persons it was submitted further approves the case of the assessee and as the parties i.e., storers never turned up to claim the stored goods it necessarily had to be sold. It was also submitted that the prevalent practice is that small storers at the time of storing their goods in the cold storage may send their goods through some other persons and this fact alone on account of the fact that the goods may have been stored by some other persons who may have named itself does not prove that the assessee was doing its own trading of that magnitude. Accordingly, heavy reliance was placed upon the impugned order. 32. We have heard the rival submissions and perused the material available on record. On a careful consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on credit against the potato stored to tide over some personal difficulties, it is seen that a surrender of Rs. 3 lakh has already been made by the assessee. Moreover as we shall consider subsequently while considering the ground raised by the assessee in its appeal it is seen that the CIT(A) has sustained the addition of Rs. 2,86,283. These amounts are sufficient to take care of the deficiencies and inadequacies of documentary notice pointed out by the revenue. We also do not consider these deficiencies to be so major as to warrant the entire addition as on the contrary, no evidence has been lead by the revenue to demonstrate that the actual capacity of the cold storage was over and above than what has consistently been argued by the assessee. The fact of potatoes found spread out in the veranda by the survey team has also been explained by the assessee consistently to show that as per the general practice the potatoes from the cold storage were unloaded in the veranda for sorting in order to separate good potatoes from the rotting potatoes before sending them. This also has been the consistent stand of the assessee which has not been demonstrated to be false. The apprehension o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same were accepted by the assessee evidenced by the surrender in the return. The rate also of the net sale of potatoes at Rs. 45.64 per quintal agitated by the assessee and demonstrated has been accepted by the CIT(A) as observed has also not been rebutted by the revenue by way of any cogent evidence to show that the net sale rate was Rs. 140 per quintal as taken into consideration by the Assessing Officer. Similarly, the statement of the truck driver have also been adequately explained as observed that the arrangement for transport are normally made by the cold storage as the storers are not recognized by the truck drivers and the truck drivers also recognise the Cold Storage and not necessarily the individual storers. Moreover, it is seen that the estimate of 25000 bags arrived by the Assessing Officer is without any basis. Accordingly, being satisfied by the reasoning and the findings arrived at therein, ground No. 1 raise by the revenue is dismissed. 34. Coming to the assessee's appeal qua ground Nos. 1 and 2, it is seen that the facts have been taken into consideration by the CIT(A) in the following manner:- "(7) As regards the statement of Shri Suresh Khubani, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort surrender comes to Rs. 2,86,283 (Rs. 15,00,000 + Rs. 12,13,717). As per the appellant the returned income of Rs. 5,24,921 takes care of this shortage. However, the same is not acceptable since the surrender is always over and above the income accounted for in the books and hence an addition of Rs. 2,86,293 out of the total addition made by the Assessing Officer is confirmed so as to take care of the surrender made by the appellant at the time of survey under section 133A of the Income-tax Act. Since the discrepancy and concealment of income and profits pointed out by the Assessing Officer on the basis of which several additions were made by the Assessing Officer as per the assessment order remained unsupported and the very basis of addition which was based upon the capacity of the cold storage did not survive, the other additions made by the Assessing Officer are deleted hereby." 35. On behalf of the assessee it has been canvassed that during the survey no discrepancy to the tune of disclosure of Rs. 15 lakhs had been found. Additions have been made only on the presumption of sale rate of Rs. 140 per quintal and estimate of sale of potatoes on account of own trading. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tue of making a surrender the assessee ensures that the survey proceedings come to an end. As such, having halted the survey proceedings on the basis of surrender of Rs. 15 lakhs. In the peculiar facts and circumstances of the case it is seen that the surrender to an extent was justified according to the assessee also as the assessee surrendered an amount of Rs. 3 lakh. Thereby admitting limited own trading though with some storers and various other discrepancies found and confronted during the survey. The matter being of estimate by the assessee to the extent of Rs. 3lakhs and the CIT(A) on facts of a further amount of Rs. 2,86,283 over and above the Rs. 3 lakh surrendered. In the peculiar facts and circumstances we find no good reason to interfere with the finding of the CIT(A) and hold that he was justified in maintaining the addition of Rs. 2,86,283. The said action being reasonable on facts is upheld. As such, ground Nos. 1 and 2 raised by the assessee are rejected. 38. Ground Nos. 3 and 4 are general in nature and require no adjudication. 39. In the result, appeals of the assessee and the Department are dismissed. Per B.R. Jain, Accountant Member.-Despite my detailed note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted the assessee of all the materials and evidence that were found as a result of survey and had come in his possession. The replies given by assessee were considered. The sales and purchases were not found verifiable. There were discrepancies in the stock account. The material found as a result of survey revealed that the assessee has not accounted for income from rent etc., fully. The correctness and completeness of accounts was not there. In the return of income filed, the assessee himself had admitted an undisclosed income of Rs. 3,00,000. Under such glaring defects and accounts being not complete and correct, the Assessing Officer invoked the provisions of section 145 of the Act and rejected the accounts. The Assessing Officer taking note of the fact that the assessee has carried out own trading of potatoes by doing storage for himself and utilization of Bardana for that purpose without disclosing any investment therein, nor showing any consumption from the existing stock, estimated that the assessee has carried out sales of 25000 bags during the whole year for which an addition of Rs. 22,75,000 has been made as undisclosed investment. Besides, a further addition of Rs. 3,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lted in short rent Rs. 15,072 Total short in rent (3+4) Rs. 9,13,717 (Expected rent Rs. 65,62,907-Rs. 89,8,545-Rs.15,072=Rs. 56,49,116 credited in the Profit & Loss Account) Income returned including surrendered amount of Rs. 3,00,000 Rs. 5,24,921 As per the above computation, after the date of survey, the income of the appel1ant went down by Rs. 8,98,645 on account of poor sale rates of potato of 18,949 quintals contained in 22,909 bags which were left by the storers without paying cold storage rent. As stated above, the appellant has given cogent reasons and supporting evidences before the Assessing Officer as also during appeal proceedings on which a report was sought from the Assessing Officer. Due to poor realization 2772 bags of potato (22,909 - 20,138) remained unsold and got rotten. This has also been duly supported by the appellant. Besides, the appellant had to give a subsidy towards rent which also resulted in short realization of rent by Rs. 15,072 and thus the total income of the appellant went down by Rs. 9,13,717. The appellant has actually surrendered an income of Rs. 3,00,000, the short surrender comes to Rs. 2,86,283 (Rs. 15,00,000 - Rs. 12,13,717). As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia included partner's statement, incomplete books of account, unverifiable purchases and sales, statements of Shri Raju Savita, Kanhaiya Lal and Ram Singh, Stock discrepancies on the date of survey and also the utilization of capacity of cold storage, which all constituted relevant material for the purpose of making assessment in the manner provided under section 144 of the Act. He also considered the explanation tendered by the assessee in that regard. Considering the same and taking into account all such relevant material as was necessary for making assessment in the manner as provided under section 144 of the Act, he estimated that there was undisclosed investment in making unaccounted sale of 25000 bags of own potatoes stored during the whole year in his cold storage. No separate addition for unexplained investment in purchases or stock differences was made. The income from unexplained investment has been estimated at Rs. 22,75,000. The ld. CIT (Appeals), however, without showing any justification or reasonable cause deleted the entire addition of Rs. 22,75,000 merely on the basis of assessee's plea that the Assessing Officer has not kept in mind the total storage capac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in Bardana for which source of investment has not been explained is also proportionately reduced to Rs. 81,250. 8. As regards the addition of Rs. 11,77,211 as income for undisclosed sale of potatoes left by the storers, the case of the Assessing Officer was that the assessee firm has admitted that it has purchased the potatoes left by the storers, but the rate at which sales are disclosed, was not found acceptable. The incidental expenses relating thereto for loading unloading, Chhatai, Binnani, packaging, Palledari, Bardana and transportation charges etc. were also not found recorded. Certain other asses sees in the same trade like M/s. Mahavir Cold Storage, M/s. Shyam Cold Storage operating from the same area had shown the sale of potatoes in the same period between Rs. 120 to Rs. 160 per quintal. The sale rate shown by the assessee, being not verifiable, the Assessing Officer adopted the sale rate of Rs. 138.50 per quintal as per basis so adopted, given at, internal page 3 of the assessment order. The undisclosed sale price of 20138 bags after giving set off of rentals thereon has been taken at Rs. 11,77,211. 9. The ld. CIT (Appeals), however, without assigning any good re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed income of M/s. Ratan Cold Storage for financial year 2000-01 at Rs. 15,00,000. The declaration of undisclosed income was admitted to include the income from storage of potatoes and income from those potatoes which have been taken by Ratan Cold Storage and sold, any discrepancy found in the statements of Raju Savita, Kanhaiya Lal, Ram Singh, drafts found, gate passes, books and other documents, apart from difference in stock position on 21-11-2000 and the same was a relevant material for the purpose of assessment under section 144 of the Act. 11. The assessee, however, declared undisclosed income at Rs. 3,00,000 in the return of income filed by it without giving any explanation with respect to nature and source of such investment, as against which the estimated additions as aforesaid are sustained at Rs. 15,00,000 (Rs. 5,68,750 + 81,250 + 8,50,000). Since the undisclosed income constituted deemed income of the assessee, the same will not fall under the head income from "profits and gains of business or profession", the assessee would not be entitled to any deduction therefrom as has erroneously been given by the ld. CIT (Appeals) for Rs. 9,13,717 from such deemed income by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was being heard, the parties appearing before me have agreed that both the Accountant Member and Judicial Member have dismissed the assessee's appeal, meaning thereby what survives are the issues that are there in the revenue's appeal. The ld. Accountant Member allowed the revenue's appeal and the ld. Judicial Member dismissed the same. Therefore, for me, the grounds of appeal as raised in the revenue's appeal are relevant and [requires to be addressed. The grounds of appeal raised in the revenue's appeal read as under:- "(1) The Ld. Commissioner of Income-tax (A) erred in law and on facts in deleting the addition of Rs. 22,75,000 made by the Assessing Officer on account of the undisclosed own trading of the assessee ignoring the assessee's admission, corroborative statement of Ram Singh and drafts in the name of Amar Singh and Shyam Mohan Dubey and other evidences notably that of Truck Drivers and accepted by the assessee regarding own sales to various models and various Arthias. (2) The Ld. Commissioner of Income-tax (A) erred in law and on facts in deleting the addition of Rs. 11,17,221 made by the Assessing Officer (on account of undisclosed sales of potato left by the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides and gone through the records including the dissenting orders of the Division Bench. The learned Accountant Member made reference to the assessee's in the same trade like M/s. Mahavir Cold Storage and M/s. Shyam Cold Storage operating from the same area who, according to him, have offered the sale of potatoes in the same period between Rs. 120 to Rs. 160 per quintal. The learned counsel for the assessee has filed before me the copy of the order of the Tribunal in the case of Shree Mahavir Cold Storage [IT Appeal Nos. 287 & 291 (Agra) of 2004 dated 8-8-2008] for the assessment year 2001-02. After going through the newspaper cuttings and the market rates prevailing, the Tribunal accepted much lower rate. If the assessee was to be compared with any other traders, it is basic requirement that the facts of both the cases must be similar and they should be put to the assessee. This exercise has not been done either by the Assessing Officer or by the learned AM while holding the issue against the assessee. After all, the assessee is dealing in a perishable article like potato. There are newspaper cuttings which clearly show steep fall in the prices of the potato. This price of Rs. 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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