TMI Blog2009 (11) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... 997-98, 1998-2000. In doing so he relied on the fact that in the subsequent assessment even in the assessee’s own case the gross profit assessed was only up to 34 percent. and in comparable cases the gross profit adopted was not as high as the percentage estimated for the three assessment year in the assessee’s case. The Tribunal refixed the gross profit at 40 percent. for the first year, 45 percent, for the next year and 50 percent for the last year. On an application to set aside the ex-parte order and for rehearing, Tribunal reheard the matter and dismissed the Department’s appeals. Held that- allowing the appeals in part, that the Tribunal had not only rejected the statement as having no evidentiary value, but had not even considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted on an estimation basis under section 144 of the Income-tax Act, 1961. On appeal, the Commissioner of Income-tax (Appeals) relying on the judgment of this court in Paul Mathews and Sons v. CIT reported in [2003] 263 ITR 101 held that the statements recorded under section 133A(3) (iii) of the Income-tax Act have no evidentiary value and, therefore, he cancelled the estimation made by the Assessing Officer and refixed the gross profit at 35 per cent. In the appeals filed by the Department, the assessee did not appear during hearing. The Tribunal, however, heard the appellant-Department, perused the records and partly allowed the appeals by refixing the gross profit at 40 per cent. for the first year, 45 per cent. for the next year an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment and other proceeding under the Act. 3. This is a case where during survey the Department recovered certain account books, price list, etc. Statements were also recorded from the managing partner, from the manager of the hotel and also a supplier, all of whom have confirmed the Department's stand that accounts written are not full and complete and do not reflect the actual receipts on sales. There fore, best judgment assessment under section 144 was the only course open to the Assessing Officer. In fact, in principle, even the first appellate authority who modified the assessment has not directed acceptance of books of account. All that he has done is to fix the gross profit at a uniform rate of 35 per cent. for all the years. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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