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TMI Blog2016 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. 2. That the ld. CIT(A) has erred further seriously on facts in sustaining the application of the net profit rate of 3.4% on freight receipts, resulting into an addition of Rs. 22,42,558/- 3. That the ld. CIT(A) has erred seriously on facts and in law in not following the earlier decisions of Hon'ble ITAT in the case of the appellant in respect of last three assessment years.'' 2.1 Brief facts of the case are that the assessee is a transporter owning self trucks, hiring other trucks and earning transport commission. Record reveals that since past many years the books of account of the assessee are rejected and taxable profits are estimated, there is no record to compare any year where assessee books have been accepted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the assessee was not verifiable. Relying on assessee's own case in preceding years, the AO after rejecting books of accounts, worked out the net profit rate of 3.40% and made addition accordingly. 2.3 Aggrieved, the assessee is in first appeal where the ld. CIT(A) referred to ITAT orders in assessee's own case for the assessment year 2006- 07, 2007-08 and 2008-09 and rejected the assessee's plea to adopt the same rate of net profit by holding as under that facts were distinguishable by following observations: ''4.3 In view of the above defects, the action of the Assessing Officer in rejecting the books of account u/s 145(3) is upheld. The counsel of the appellant has emphasized the facts of earlier years and applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings is independent and the principles of res judicata do not apply to income tax proceedings. It was held by Hon'ble Kolkata High Court in the case of CIT vs. Avery India Ltd. (255 ITR 485) that a decision taken in regard to an earlier assessment year does not operate as res judicata for a subsequent assessment year. The Hon'ble Rajasthan High Court in the case of CWT vs. Smt. Kusum Bader (185 ITR 70) held that the decision on one issue in respect of a particular assessment year cannot be held to be conclusive for another assessment year. The principle of res judicata was therefore, held to be not applicable. 4.5 In the case of Commissioner of Sales Tax, Madhya Pradesh vs. H.M. Esufali H.M. Abdulali (90 ITR 271), the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,48,63,667 1.48% 3.40% 1.75% 2008-09 17,26,10,403 1.19% 3.40% 1.50% It is contended that the addition retained by the ld. CIT(A) is exorbitant as compared to preceding years. It has not been disputed that there is increase in the turnover of the transportation charges received by the assessee and there being three ITAT orders in assessee's own case, the average net profit of the respective years should be adopted. It is further contended that it has be held by Hon'ble Jurisdictional High Court that past history of the assessee is the best guide for applying a particular rate while assessing income in case books of account are being rejected. Such view was held in the case of CIT vs. Saddruddin Hussain, (2003) 263 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troverted any of the distinguishing features pointed by ld. CIT(A) in this year as compared to others. Consequently, earlier orders based on pure facts of each year, cannot be held as binding judicial precedents and average net profit cannot be applied in this year. It is settled principle of law that principles of res judicata are not applicable as each assessment year is separate entity of assessment. Since the facts are held to be distinguishable in this year, principle of consistency is also not applicable. The assessee has failed to demonstrate that distinguishing features pointed out by the ld. CIT(A) are in any way are unjustified. The ld. DR thus relied on the order of the ld. CIT(A). 2.6 We have heard the rival contentions and per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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