TMI Blog2017 (8) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, this finding of the Ld. CIT(A) is not justified. He ought to given specific reasoning for sustaining such addition. In our view, addition cannot be made purely on the basis of conjecture. Therefore, this additional ground of the Cross Objection of the assessee is allowed - ITA No. 259/JP/2012 And C.O. No. 30/JP/2012 - - - Dated:- 13-7-2017 - SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM For The Revenue : Shri A.S. Nehra (Addl. JCIT) For The Assessee : Shri Mahendra Gargia (Advocate) ORDER PER SHRI KUL BHART, JM. This Appeal by the Revenue (259/JP/2012) and Cross Objection by the assessee (30/JP/2012) both are directed against the order of Ld. Commissioner of Income Tax (Appeals)-III, Jaipur dated 23/12/2011 pertaining to the Assessment Year 2008-09. Both Appeal and Cross Objection were taken up together and are being disposed off by way of consolidated order for the sake of convenience and brevity. 2. The Appeal of the Revenue and the Cross objection of the assessee were dismissed vide order dated 22/12/2015 on account of low tax effect. Subsequently, it was brought to the notice of the Bench, by the way of Miscellaneous Application, on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned disallowance made by the AO be deleted. On perusal of para 4 of the assessment order, wherein the Ld. AO has discussed the impugned disallowance, the submissions of the Ld. AR made in support of this groud of appeal and after going though the relevant para i.e. 12 13 of aforesaid order of the Hon ble Jurisdictional Bench of the ITAT, I find that the contention of the Ld. AR as factually correct and in order. Under similar circumstances, the course have held that the principal of judicial discipline demands that the decisions of higher wisdom, given i.r.o., the common issue, should be followed by the subordinate authorities in other cases involving the same matter. In other words, for the sake of better judicial administration and unity, the decisions given by jurisdictional Tribunal/Courts are bending in nature on the lower appellate/ administrative authorities. The above ratios have been echoed in the following decisions:- i. Dunlop India Ltd. - 154 ITR 172(SC) ii. Bank of Baroda - 256 ITR 385(Bom) Accordingly, while respectfully following aforementioned order of the Hon ble ITAT, Jaipur Bench, passed in the appellant s own case for AY 2007-08, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in favour of the assessee by the decision of the Tribunal pertaining to the Assessment Year 2007-08 in ITA No. 1401/JP/2010. This finding is not controverted by the Revenue in ITA No. 1401/JP/2010 CO No. 06/JP/2011. The copy of the decision of the Tribunal, is enclosed at Paper Book page no. 20-51. Therefore, we do not see any reason to disturb the finding of the Ld. CIT(A), same is hereby affirmed, this ground of Revenue s appeal is dismissed. 6. Ground no. 3 , is general in nature and needs no separate adjudication. 7. In the result, appeal of the Revenue is dismissed. 8. Now, we take up Cross Objection 30/JP/2012 pertaining to the Assessment year 2008-09. The Assessee has raised the following ground of Cross Objection. 1. The Ld. CIT(A) erred in law as well as on the facts of the case in invoking Sec. 145(3) of the Act. The provision so invoked being contrary to the provisions of law and facts, the same kindly be quashed. 2. The cross-objection prays your honour indulges to add, amend or alter of or any of the ground of CO on or before the date of hearing. The assessee has also taken an additional ground of Cross Objection that reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on laws as well as facts. The AO though alleged some deficiencies in A. Y. 2007-08 (also taken basis for rejection this year) however, none of them are such so as to be based for invoking Sec. 145 and more particularly when they are contrary to facts and the submissions, as discussed hereunder. 2.2 It is not disputed that the assessee has maintained all the books of account at all the cost centers consisting of cash book, Journal, ledger. All purchase, sales and expenses are fully vouched. Complete stock records for all the items traded are maintained. The accounts are audited u/s 44AB (PB 60-62). No adverse comment has been made by the tax auditor. Further all the books of account were duly produced before the AO as admitted by him at page 1 para 1 of his order. 2.3 In this year firstly, the AO has not at all pointed out any specific defects, in the accounts of this year. He merely relied upon the assessment for A. Y 2007-08 without carrying out any independent examination and pointing out any defects. Every year is a separate year and the AO was supposed to record independent finding for this year. There appears no cogent material or satisfaction on any of the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits: Alternatively 3.1 Addition need not be made, even if Sec 145 invoked: The law is well settled that even invoking of Sec. 145 does not confer blind powers upon the lower authorities. They are bound to make an honest estimation of income, based on the material available on record, past history of the case, local knowledge and repute of the assessee, as held in CIT v. Gotan Lime Khaniz Udyog 256 ITR 243 (Raj). However, it will appears that the Ld. CIT (A) has not made a fair estimation in conformity of the above settled judicial guideline. 3.2.1 Enhancement of income is against law facts: At the outset, it is submitted that a bare perusal of the CIT (A) order shall reveal that he proceeded more on drawing inferences, logics and corollaries against by going the actual facts figures of the present year and by making a comparison thereof with the preceding year. Though he called for the record yet however, he did not examine the specific contention of the Ld. AR [page 21 para 6.4 of CIT (A)] that the facts circumstances in the current year were different (at least on this aspect) than the previous year. He even did not mention the figure / % of commission passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by comparing the figures of the suppressed sale of last year viz-aviz addition sustained by the Hon'ble ITAT at ₹ 2.50 Lacs and ignoring that the total addition in that year was made of ₹ 30.87 Lacs. In fact, one must appreciate that a huge addition oif ₹ 30.87 Lacs was reduced to a meagre ₹ 2.50 Lacs and this way there was no occasion to make any addition at all this year. 10. Ld. D/R opposed the submissions and submitted that the Assessing Officer has given specific finding with regard to the defects into the books of accounts. 11. We have heard the rival contentions, perused the material available on record and gone through the order of the authorities below. 12. Ground no. 1 and 2 of the Cross Objection against rejection of books of accounts. In para 2.3 of the order of the Ld. CIT(A) has upheld the action of the Assessing Officer. As the facts are identical, as were in assessment year 2007-08 after considering the totality of the facts and material placed before us. There was sharp increase into the expenses. The assessee had not challenged the rejection of books of account in the Assessment Year 2007-08. Even in the submissions made be ..... 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