TMI Blog2008 (9) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) adopted a rate of 40 percent as being sale which were underinvoiced. Held that- (1) what should be the percentage adopted in a given set of facts of a case was a question of fact. The Tribunal had recorded that a copy of the seized diary contained unaccounted sales and unaccounted expenditure for the period from October 13, 1990 to February 19, 1991, and this fact had been verified by the Tribunal from the paper book 19, 1991 and this fact had been verified by the Tribunal from the paper book filed before the Tribunal. The Tribunal had thereafter stated that if unaccounted sales and income therefrom were estimated for the period from April 1, 1990 to Feb, the assessee could not be denied deduction of corresponding expenditure for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to direct the Assessing Officer to allow the entire claim of Rs. 8,39,836 including the unaccounted expenditure claimed by the assessee, when the Assessing Officer had already allowed unaccounted expenditure of Rs. 3,50,184 as evidenced from the seized material ? (C) Whether the Appellate Tribunal has correctly appreciated the facts on record so as to accept the assessee's contention that deficit in marble slabs should be set off from the surplus of marble tiles without taking note of the production process and the wastage ? Tax Appeal No. 439 of 2008 (A) Whether the Appellate Tribunal has correctly appreciated the facts on record so as to direct the Assessing Officer to compute the unaccounted income in respect of underinvoicing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error in disturbing the order made by the Assessing Officer by making an estimate different than the estimate made by the Assessing officer which was based on the seized material. 5. The respondent-assessee is the owner of mines at different sites from which the assessee was extracting marble blocks. Such marble blocks are converted into slabs and marble tiles are manufactured from such slabs. For this purpose, the assessee also gets manufacturing done through different concerns on job work basis. It appears that on February 21, 1991, proceedings under section 132 of the Income-tax Act, 1961 (the Act) took place at the premises of the assessee and other two concerns. Certain documents were recovered for the period from October 13, 1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 66 percent. and 80 percent. in three instances. The assessee pointed out that there was no underinvoicing so far as the 80 percent. instance is concerned. The assessee also submitted the 4 instances where the underinvoicing varied from 3 percent. to 15 percent., 18 percent. instances where there was no underinvoicing. This fact has not been denied by the parties before us. The assessee also submitted before the Commissioner of Income-tax (Appeals) that the actual underinvoicing from October 13, 1990 to February 19, 1991, is at 36.41 percent. The Commissioner of Income-tax (Appeals), therefore, directed the Assessing Officer to estimate the rate of underinvoicing at 40 percent. In our opinion, when the asses- see has worked out the average ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penditure incurred for 130 days from October 13, 1990 to February 19, 1991 on the basis of the seized material. The assessee had claimed Rs.8,39,836 on the basis of expenditure for the entire period of 325 days from April 1, 1990 to February 19, 1991. 10. When the matter was carried in appeal, the Commissioner (Appeals) made further estimate and allowed a further sum of Rs. 2 lakhs while retaining the balance amount. Both the assessee and the Revenue carried the matter in appeal before the Tribunal. 11. The Tribunal in its impugned order has recorded that it is an admitted fact that a copy of the seized diary contains unaccounted sales and unaccounted expenditure for the period from October 13, 1990 to February 19, 1991, and this f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconciled. 15. When the assessee carried the matter in appeal before the Commissioner (Appeals), it was accepted by the assessee that the discrepancy in relation to marble block could not be reconciled and the assessee accepted the same. However, in so far as the discrepancy in stock of marble slabs and marble tiles is concerned, it was submitted that deficit in stock of slabs would be taken care of by the surplus in stock of marbles tiles because tiles are manufactured from slabs. The Commissioner (Appeals) did not accept the contention of the assessee and sustained the order of the Assessing Officer holding that if the Assessing Officer so desires the total addition could be alternatively taxed in the hands of the assessee and the two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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