TMI Blog2010 (5) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Act and there is no error apparent on the proceedings also - The writ petition is therefore dismissed - O.P. NO. 37260 OF 2002 (I) - - - Dated:- 28-5-2010 - T.R. RAMACHANDRAN NAIR, J. P.K.R. Menon and George K. George for the Petitioner. A. Kumar for the Respondent. JUDGMENT 1. This writ petition is filed by the Revenue challenging the proceedings of the Settlement Commission. 2. Heard learned Standing Counsel for the Revenue and the learned counsel appearing for the second respondent. 3. The second respondent who is an assessee to Income-tax, is associated with a number of IMFL bars and restaurants either as partner or proprietor. On 6-5-1999 a search operation was conducted at the residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 itself as to why the sworn statement is not being relied upon. Actually, the second respondent had retracted the admission later on, which fact is recorded in para 6 of Ext.P4 order. It is pointed out that the Commission has adopted the very same method as in the case of M/s. Hotel Vysali Mayur Bar, situated within the same town and therefore it cannot be said that the method adopted is illegal. It is further pointed out that the method adopted cannot be said to be arbitrary and in violation of any statutory provisions warranting interference by this Court, in this writ petition. 8. Learned Standing Counsel for the Revenue relied upon the decision of a Division Bench of this Court in V. Kunhambu Sons v. CIT [1996] 219 ITR 235 with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the second respondent also. There is no case for the petitioner that they had challenged the method adopted in respect of Hotel Vysali Mayur Bar or the same has been set aside in any proceedings. It is therefore clear that the method adopted cannot be said to be arbitrary. Actually, as far as the sales of food articles are concerned, the profit rate is estimated at 20 per cent as adopted by the Assessing Officer. 10. Herein, the argument raised by the learned Standing Counsel for the Revenue is that the voluntary statement ought to have been accepted, the reliability of which was upheld by this Court in V. Kunhambu Sons's case (supra) of course, the Division Bench in the said case, had upheld the assessment on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth accretion over the years in the block period and the Commission has totally deviated from the same, while passing Ext.P2. It is explained by the learned counsel for the second respondent that the same is not correct. It is clear that Ext.P2 order has been passed after hearing both sides and after assessing various aspects. As observed already, the net profit has been determined at 3.75 per cent of the total turnover as adopted in the case of another Bar. It cannot therefore be said that the order is palpably wrong. Therefore, I find no reason to accept the said argument also. 12. In the argument notes submitted by the learned counsel for the second respondent, it is mentioned that the assessee has filed the Wealth Statement for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural defects such as violation of the mandatory procedural requirements of the provisions in Chapter XIX-A of the Income-tax Act, 1961, and/or violation of the rules of natural justice are made out; or (ii) if it is found that there is no nexus between the reasons given and the decision taken by the Settlement Commission. The court cannot interfere either with an error of fact or error of law alleged to have been committed by the Settlement Commission." 14. In Shriyans Prasad Jain's case (supra), it was held by the Apex Court thus : "Mr. Poti, learned counsel for the Revenue, is right in submitting that in this appeal this Court would not go into questions of fact or review the findings of fact recorded by the Commission. As point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised. It should be issued in grave cases where the subordinate Tribunals bodies or officers act wholly without jurisdiction or in exercise of it, or in violation of principles of natural justice or refuse to exercise jurisdiction vested in them. There is an error apparent on the face of the record. Whether there is an excess exercise of jurisdiction may depend upon the existence of some facts in each case. There are cases where jurisdiction of the inferior Tribunal depends upon fulfilment of some conditions precedent upon existence of some particular fact. Such a fact is collateral to be actual matter, which the inferior Tribunal has to try and determination. Whether it exists or not is logically and in sequence prior to the determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
