TMI Blog2015 (2) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... g of fact and on the basis of appreciation of evidence thus it is a pure finding of fact. The assessee has failed to highlight, bring on record any perversity in the order of the Tribunal so as to hold that substantial question of law is involved. The hon'ble apex court and this court has consistently held that when the matter is decided on appreciation of evidence and facts then it is finding of fact. - Decided against assessee. - INCOME TAX APPEAL NO. 582/2011 - - - Dated:- 20-8-2014 - MR. AJAY RASTOGI AND MR. J.K. RANKA, JJ. JUDGEMENT J. K. Ranka J.- The instant appeal filed by the appellant under section 260A of the Income-tax Act, 1961 (for short the Act ), is directed against the order of the Income-tax Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee-respondent submitted that the assessee is a 100 per cent. export oriented firm and all the sales of the assessee are export sales, which are duly verified by the Customs Department. It was also submitted that all the purchases are verifiable from the fact that all the payments have been made from bank and all the goods purchased stood exported. It was further submitted that they have tried to produce the creditors for verifying the purchases but they have refused to appear before the Income-tax authorities and it was submitted that the Department in this situation can issue summons to these parties and verify the purchases made by the assessee at the addresses already available with the Department. Along with the said reply, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the transactions. The assessee responded and reiterated the fact that the statements, if any, of these persons cannot be relied upon. The Assessing Officer finding no alternative noticing the above fact as also noticing the defects in the stock register rejected the book results by invoking the provisions of section 145(3) of the Act and since the assessee was unable to prove the purchases as also the defects noticed by the Assessing Officer during the course of the assessment proceedings applied a gross profit rate of 14 per cent. on the declared turnover and made a trading addition of ₹ 66,32,270. 3. The matter was challenged before the Commissioner of Income-tax (Appeals) and the facts were reiterated before the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings, which have already been enumerated. It may be that an assessee is a 100 per cent. exporter but that does not mean that the Assessing Officer is precluded from enquiring into the purchases, which were made by the assessee from the said sellers. It would be appropriate to quote the relevant paragraph 9, in which the Tribunal observed about not only rejecting the books results but also in upholding the gross profit rate of 11 per cent. The past history of the assessee is that in the earlier year the assessee has shown the gross profit rate 11.4 per cent. whereas in this year the assessee has shown the gross profit rate of 8.8. per cent. which is on a very lower side. The assessee has taken ground that the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year 2006-07. The date of purchase can be easily procured and can be filed. Therefore, in our considered view, the purchase cost as well as the sale price remained unverifiable. As we have already stated that the rejection of books of account are justified, therefore, keeping in view all these facts and circumstances, we are of the view that the learned Commissioner of Income-tax (Appeals) was justified in applying the gross profit rate of 11 per cent. instead of the gross profit rate of 11.4 per cent. shown in the immediately preceding year. The learned Commissioner of Income-tax (Appeals) has already given a margin on account of increase in the turnover as he has directed to apply 11 per cent. gross profit rate only. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that they did not sell the goods and merely issued bills without effecting the actual delivery. Once this fact has come on record that the notice could not be served for one or the other reasons and the parties did not turn up then, in our considered view, the onus and burden shifts on the assessee which has to be discharged appropriately by the assessee and we have noticed in this case that the assessee has not been able to lead any evidence in furtherance of filing of confirmatory letters or merely showing that the amounts are being paid by account payee cheques. If the assessee was able to file confirmatory letters from the sellers then the assessee was certainly aware of the whereabouts and ought to have taken further steps in produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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