TMI Blog2018 (1) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by Sh. Gautam Jain Piyush Kumar Kamal, Advs Respondent by Sh. Raja Ram Sah, CIT DR ORDER Per Suchitra Kamble, JM These two appeals are filed by the assessee and the Revenue against the order dated 10/1/2013 passed u/s 263 of the Income-tax Act, 1961 order dated 30/11/2015 passed by CIT(A)-24 respectively for Assessment Year 2010- 11. 2. The grounds of appeal are as under:- I.T.A .No. 3794/DEL/2014 1. That the order made by the learned Commissioner of Income Tax, Central-I, New Delhi dated 25.3.2014 holding that order of assessment dated 29.12.2011 is erroneous in so far as it is prejudicial to interest of revenue is without jurisdiction and deserves to be quashed as such. 2. That the learned Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit on saled then such an order of assessment could not be regarded as erroneous in as much as prejudicial to the interest of revenue merely because the learned Commissioner of Income Tax had a different opinion and that too, without having established in any manner that, view adopted by the learned Assessing Officer was an impossible view. 3.2. That the finding of learned Commissioner of Income that the Assessing Officer is directed to examine the taxability of the amount of ₹ 11,57,03,488/- in the hands of the assessee on account of unaccounted sales made is based on factually misconception and, misinterpreted of provision of law and is thus untenable. 3.3. That further the learned Commissioner of Income Tax has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 8,37,60,000/- being undisclosed GP at the rate of 10% of the undisclosed sales. The CIT(A) vide order dated 31.08.2012 upheld the finding of the Assessing Officer that the undisclosed sales is ₹ 83,76,00,000/- but restricted the G.P. percentage to 5% of the undisclosed sales. Accordingly, he determined the undisclosed G.P. at ₹ 4,18,80,000/-. The assessee filed appeal against the order of the CIT(A) on this issue. Meanwhile, the CIT(A) Central-1, New Delhi vide order u/s 263 dated 25.03.2014, directed the Assessing Officer to consider the entire undisclosed sales as undisclosed income of the assessee, instead of restricting the profit to 10% of the undisclosed sales. However, the CIT(A), Central-1, New Delhi accepted the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of some diary which was allegedly stated to be incriminating material by the Revenue and the said diary found in the possession of the third party was held not sufficient to draw an inference about the alleged undisclosed income by the Tribunal vide order dated 18/5/2015 in ITA No. 5550/Del/2012 and all the advances were deleted by the Tribunal. Thus, order u/s. 263 of the Act passed by the CIT is set aside. Therefore, the appeal of the assessee is allowed. As related to Revenue Appeal, the same will not sustained as the main issue is already decided by the earlier decision of this Tribunal. 7. In result, appeal of the assessee is allowed and appeal of the revenue is dismissed. Order pronounced in the Open Court on 18th Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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