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TMI Blog2017 (8) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount advertisement expenses (vi) No accounting of income received on lodging house. Cash Rs. 18,25,450/- was found and seized, gold jewellery weighing 1522.6 grams were found, but not seized. Hence, for the block period 1996-97 to 2002-2003 and for the period 1.4.2002 to 23.1.2003 assessment was framed under Section 158 BC read with Section 143 of the Act and notice under Section 158 BC of the Act was issued on 3.11.2003 and the assessment was completed u/s.158 BC read with Section 143(3) of the Act on 31.3.2005 and determined the total undisclosed income as Rs. 2,59,57,634/- as against the income returns submitted by the respondent/Assessee of Rs. 69,40,422/-. 3. Aggrieved by the Block Assessment order, the Assessee preferred an appeal before the Commissioner of Income Tax (Appeals) in I.T.A.No.27/2005-06. The Commissioner of Income Tax (Appeals) vide order dated 31.3.2006, partly allowed the appeal of the Assessee. The Commissioner of Income Tax (Appeals) confirmed all the additions but deleted a sum of Rs. 24,48,242/- on inflation or cost of medicines. 4. Challenging the order passed by the Commissioner of Income Tax (Appeals), the Assessee preferred an appeal before the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and lateron submitted that upto 30% of the money was not received. The tribunal has accepted the contention of the Assessee by pointing out that the Assessing Officer himself estimated the cost of medicines about 42% in the assessment year 2001-02. Thus, the total cost for purchase of medicines admitted by the Assessing Officer is Rs. 73,57,878/- as against the total collection including the unaccounted collection of Rs. 1,74,05,435/- which comes to 42.27%. But the cost of purchase gone down to 26.46% and 18.82% for assessment year 2002-03 and 2003-04 respectively. The tribunal has accepted the contention of the Assessee on the ground that Assessee is carrying on practice in Unani system of medicine and therefore, Assessee was charging lumsum fees including the cost of medicines. Without giving any reasons and when no material has been placed by the Assessee to prove his contention, the tribunal has partly allowed the appeal filed by the Assessee allowing the deduction of 42% from the gross receipts towards non receipt fees as well as cost of medicines. Therefore, the order passed by the Tribunal is perverse in granting deduction of 42% without any materials. Hence, the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income estimated by the Assessing Officer and the wealth of the respondent/ Assessee stood as Rs. 59 lakhs as against Rs. 2.55 Crores and further submitted that there was no evidence in the hands of the department indicating the receipt of the above estimated income at Rs. 2.55 Crores. Further, it is the case of the respondent/Assessee that the Assessing Officer himself had allowed the cost of purchase of medicine for the Assessment year 2001-02 at 42.27% of the total estimated collections. On the basis of the said deductions granted by the Assessing Officer, the respondent/Assessee pleaded for deductions with regard to expenses incurred on account of purchase of medicine, advertisement and further on account of non receipt of income mentioned in the Consultation register seized by the Department during the course of search. 12. Accepting the said contention, the tribunal has partly allowed the appeal of the respondent/Assessee. According to the learned counsel, there is no substantial question of law involved in the second appeal. Therefore, there is no error or illegality or perversity in the order passed by the tribunal. Hence, Tax appeal is liable to be dismissed. 13. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Assessing Officer has been sustained. 17. Assailing the said order, the Assessee/respondent has preferred an appeal in IT (SS) No.94/Mds/2006 before the Income Tax Appellate Tribunal, Chennai on the ground that the assessment should be framed on net asset method and estimation of professional receipts including discount on non-realisation of such purchases and deduction for purchase on medicines etc. and other grounds were also raised, in respect of other issues. 18. The tribunal by taking into consideration of the purchase of medicine for the assessment year 2001-02 allowed 42.27% for the above said period and set aside the order passed by the Commissioner of Income Tax (Appeals), Chennai and added 42% from the gross receipts estimated for non-receipts bills, as well as the cost of medicines. 19. In so far as the other issues are concerned, the Tribunal has partly allowed the appeal. Challenging the said order, tax appeal has been preferred raising the substantial questions of law as stated above. 20. The learned counsel for the appellant would submit that the only issue involved in this appeal is that ITAT has given a relief of Rs. 1,09,02,206/- by directing the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paras 16, 17, 18, and 19 of the said judgment: ''16. An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correction or reversal. It is creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. 17. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment shuld be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those thing also are supposed to be granted, without which the jurisdiction cannot be exercised.'' 23. In Narayanan Chettiar Industries vs. Income-Tax Officer reported in [2005] 277 ITR 426 (Mad) the First Bench of this Court held as under: "A perusal of the impugned order of the Income-tax Appellate Tribunal shows that there was no finding ..... 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