TMI Blog2005 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... shed and set aside and the matter is restored to the file of the Tribunal for the purposes of adjudication afresh in the light of the well established legal principles enunciated by the apex court and this court. - - - - - Dated:- 10-1-2005 - Judge(s) : D. A. MEHTA., MS. H. N. DEVANI. JUDGMENT The judgment of the court was delivered by D.A. Mehta J.-Leave to amend. This appeal arises from the order of the Tribunal dated August 29, 2003, in I.T.A. No. 2750/Ahd of 1996 for the assessment year 1991-92 filed by the Revenue before the Tribunal. Heard Mr. S.N. Soparkar, learned senior advocate for the appellant, and Mr. M.R. Bhatt, learned senior standing counsel for the Revenue. Admit. The following substantial question of law arises for determination: "Whether, on the facts and in the circumstances of the case, the order of the Tribunal can be said to have been made in accordance with law and is not perverse when the decision reverses the order of the Commissioner of Income-tax (Appeals) without giving any reasons?" Notice was issued on December 6, 2004, in the light of the ratio of the decisions of this court reported in-(i) Rajesh Babubhai Damania v. CIT [2001] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce produced before him by the assessee in the form of two paper books. Both the assessee and the Revenue carried the matter in appeal before the Tribunal: the assessee challenging the retention of addition of Rs. 34,902 and the Revenue challenging the deletion of addition of Rs. 11,45,368. The Tribunal for the reasons stated in its order of August 29, 2003, allowed the appeal of the Revenue, reversing the order of the Commissioner of Income-tax (Appeals) and restored the addition of Rs. 11,45,368, it also dismissed the assessee's appeal in relation to addition of Rs. 34,902. Assailing the aforesaid order of the Tribunal learned counsel for the appellant submitted that the Tribunal has failed to exercise jurisdiction in accordance with law while reversing the order of the Commissioner of Income-tax (Appeals) inasmuch as the Tribunal has not only not discussed the evidence which weighed with the first appellate authority, but has also failed to assign any independent reasons for restoring the addition made by the Assessing Officer. He placed reliance on the following decisions of the apex court as well as the decisions of this court: (i) Omar Salay Mohamed Sait v. CIT [1959] 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e director stated that at the relevant time he was not able to lay his hands on the relevant documents/materials and, therefore, he was constrained to make the disclosure; that on scrutiny of the relevant documents it was found that all the entries of the purchases reflected by the octroi receipts were debited in the books of account except for the difference in quantity mentioned in one of the bills. The Assessing Officer having rejected this explanation the assessee carried the matter in appeal and reiterated its explanation. However, the assessee to buttress its submission, filed two paper books before the Commissioner of Income-tax (Appeals). It is an admitted fact that copies of the paper books were forwarded to the Assessing Officer whose comments were received by the Commissioner of Income-tax (Appeals) vide letter No. ACIT/Co.Cir.7(l)/Appeal/1995-96 dated October 6, 1995. The Commissioner of Income-tax (Appeals) has taken into consideration the explanation of the appellant that Shri Prahladbhai P. Patel, the chairman and managing director of the assessee-company, was looking after the business and that the other director present at the time of survey, Shri Narendra P. Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order of the Tribunal nowhere reflects as to what were the facts and evidence placed before the Commissioner of Income-tax (Appeals) by the assessee and on the basis of which the Commissioner of Income-tax (Appeals) accepted the explanation of the assessee. In the view that the court is inclined to take it is not necessary to enter into a discussion on the merits of the issue involved nor the veracity or the weightage to be assigned to the evidence available on record. Suffice it to state that as against the statement regarding admission at the time of survey, the assessee had placed on record its letter of retraction and evidence in support of such retraction. The least that was expected of the Tribunal was to discuss that evidence with reasons as to why the said retraction coupled with the evidence was not acceptable, especially when the same had been accepted by the Commissioner of Income-tax (Appeals). The Tribunal states that the explanation was not furnished before the Assessing Officer and was placed on record before the Commissioner of Income-tax (Appeals) for the first time overlooking the fact that the Commissioner of Income-tax (Appeals) in paragraph No. 2.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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