TMI Blog2007 (2) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Appellate Tribunal, Patna Bench, Patna, whereby the Tribunal dismissed the appeal filed by the Revenue and further allowed cross-objections filed by the respondent-assessees. 3 For better appreciation of the fact of the case, first of all we shall take up Tax Appeal No. 9 of 2002. The respondent-assessee derives income from dealing in vegetable oil and edible oil, etc. The respondent also derives income from commission on sale of edible oil received from various manufacturers of the States other than erstwhile Bihar. The respondent used to issue Form No. F for all such goods to the consignor and on the basis of this Form No. F, the consignor used to get rebate from sales tax on the consignment sale in his own State. The allegation ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 40,350 12,74,090 12,33,740 5. 1992-93 28,440 15,66,496 15,38,056 4 Aggrieved by the said assessment, the respondent-assessee preferred an appeal before the Commissioner of Income-tax (Appeals), Ranchi which was registered as Tax Appeals Nos. 32, 33, 34, 35, 36 of 2001. The Commissioner of Income-tax (Appeals) (in short "CIT(A)") after hearing the parties partly allowed the appeals and held that the matter needs reconsideration by the assessing authority. The appellant-Revenue, aggrieved by the said order of the Commissioner of Income-tax (Appeals), moved the Tribunal by filing appeals, which were registered as Tax Appeal Nos. 165, 166, 167 and 169 of 2001. The Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved and therefore, the instant appeal is liable to be dismissed. In this regard, learned counsel relied upon various decisions of different High Courts. 7 As noticed above, the respondent is an assessee and deals in edible oil. The respondent filed his return of income. Subsequently, it came to the notice of the income-tax authorities that the respondent was consignment agent of various edible oil suppliers outside the erstwhile State of Bihar. In this process, the respondent used to issue Form No. F for all such goods to the consignor-supplier and the consignor-supplier used to get rebate on sales tax on consignment sale in its own State. It was held that the respondent in the counterfoil of Form No. F used to enter lower figure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant might have collected sales tax on the concealed turnover and which was not disclosed to the Commercial Tax Department and has enjoyed it. At this juncture, learned counsel Sri S. K. Poddar, advocate has objected by saying that it is only conjecture and surmise and there is no material on record to suggest that 'the sales tax had been collected and pocketed by the appellant. So far as the commission as disclosed in the income-tax return is concerned, vis-a-vis total consignment sale made even as per the Commercial Tax Department is correct and fully verifiable. There is no discrepancy in respect of 'arhat' commission vis-a-vis consignment sale. Learned counsel has also submitted that the Department has also not pointed out any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as regular assessment for the purposes of sub-section (1). In this case, the assessment was first made under section 143(1) and no assessment under section 147 has been made for the first time. Thus, Explanation 2 is not attracted. Interest charged is hereby cancelled 10 The Commissioner of Income-tax (Appeals) in his order considered the submissions of the assessee that the Sales Tax Officer on the disclosed turnover has found that sales tax has been duly reflected in the books of account and was paid to the Commercial Tax Department. The Commissioner of Income-tax (Appeals) also took notice of the case of the appellant that no sales tax was realized since all the cash memos issued are for the net price of the goods sold a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this court. This appeal is, therefore, allowed and the impugned order passed by the Tribunal is set aside and the order passed by the Commissioner of Income-tax (Appeals) is restored. 12 So far as other appeals being Tax Appeals Nos. 15, 28, 29, 31, 33, 35, 36, 38, 27, 42, 40 and 45 of 2003 involving similar facts are concerned, the Tribunal, in the order held that the said appeals shall be governed by the order passed in the appeal from which T. A. No. 9 of 2002 arises. 13 In the aforesaid facts, all these appeals are allowed and the orders passed by the Tribunal are set aside. The matter is remitted back to the Assessing Officer in terms of the order passed by the Commissioner of Income-tax (Appeals) in Appeal No. 32 of 2000-01 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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