TMI Blog2018 (6) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... we will take appeal in I.T.A.No. 529/Ind/2015. 3. This appeal is barred by time by 29 days. The Ld. Counsel for the assessee has submitted an application seeking condonation of delay stating that due to death of his brother, the assessee could not file the appeal in time. The assessee has also submitted a death certificate alongwith paper cutting as evidence. To this effect, the assessee has filed an affidavit also. 4. We have perused the application and affidavit alongwith death certificate. The reasons as stated in the application demonstrates a reasonable cause. We, therefore, condone the delay and admit the appeal for adjudication. 5. Briefly stated, the facts of the case are that the assessee is engaged in the business of Trading of ferrous and non-ferrous metals. During the previous year 2009-10 relevant to assessment year 2010-11, the assessee had shown gross profit of ₹ 27,97,918/- on the gross turnover of ₹ 19,99,28,840/- @ 1.39% as against gross profit of ₹ 14,76,041/- @ 1.34 % on the gross turnover of ₹ 10,95,86,336/- declared in the immediately preceding assessment year. The AO on examination of profit and loss account found that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order u/s 143(3) by making an addition of ₹ 46,54,132/- without affording opportunity of hearing and without looking facts of the case, and the Hon'ble CIT (A)-l confirmed the same by dismissal of appeal. 3. Lump sum addition in Net Profit of ₹ 46,54,132/-:- That the Assessing Officer has passed order u/s 143(3) by making estimation of profit @ 3 % of the gross turnover i.e. ₹ 59,97,865/- on the gross turnover of ₹ 19,99,28,840/-. The estimation of such profit is quite wrong in the line of wholesale business in which Assessee deals, such estimation is wrong, arbitrary and unlawful, hence needs to be deleted. The CIT(A) erred in confirming the addition, Assessee has showed net profit at the rate of 1.39 % on total turnover during the year which was better than net profit rate of 1.34 % shown by them in preceding previous year. In the case of CHANDI MARBLES PVT. LTD. vs. ASSISTANT COMMISSIONER OF INCOME TAX ITA No. 355/Jodh/2014 (2014) 41 CCH 0094 Jodhpur Tribunal held that no addition can be made when gross profit rate of assessee was better in comparison to immediately preceding year, even if books of accounts were rejected. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t come forward and if they did not come, the assessee should not suffer. However, on behalf of revenue, it was urged that detail However, on behalf of the Revenue, it was urged that detailed inquiries were made and thereafter the conclusion was reached. The Tribunal found that there was no evidence anywhere that these concerns gave bogus vouchers to the assessee. No doubt, there were certain doubtful features, but the evidence was not adequate to conclude that the purchases made by the assessee from the said parties were bogus. The Tribunal accordingly, did not sustain the addition retained by the Appellate Assistant Commissioner. Hence, at the instance of the Revenue aforesaid question has been referred to this court for opinion. On a perusal of the order of the Tribunal, it clearly appears that whether the said transactions were bogus or not was a question of fact. The Tribunal has also pointed out that nothing is shown to indicate that any part of the fund given by the assessee to' these parties came back to the assessee in any form. It is further observed by the Tribunal that there is no evidence anywhere that these concerns gave vouchers to the assessee. Even the two state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O to be completely baseless and unsustainable. In the absence of any such finding, the genuine expenditure incurred by the assessee for value addition job work paid by A/c Payee cheque cannot be disallowed. This issue is clearly covered by the judgment of Hon'ble High Court of Gujarat in above case law. From the above discussion, it can be clearly seen that the entire issue has been decided by the Tribunal on the basis of evidence on record. The assessee had made payments for job work done through account payee cheques. There were other corroborative evidences to prove such evidence. The Assessing Officer has committed error in disallowing such claim. In addition to having made payments through Ale. Payee cheques, the assessee had also produced TDS Certificate in support of its claim. The Assessing Officer observing that such cheque payments could have been withdrawn and reverted back to the assessee were not based on evidence. We find no infirmity in the order of the Tribunal. Accordingly, Tax Appeal stands dismissed. 4. Since there is no dispute with regard to the fact that the issue involved in these appeals is covered by the aforesaid decision of this Court, we dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord. We have also gone through the case laws relied upon by the Ld. Counsel for the assessee in his written submissions. We find that the profit has been estimated by the AO by applying net profit rate at 3 %. The AO has not given any reasons for rejection of books of account. The AO ought to have taken the past history. We, therefore, direct the AO to adopt net profit rate at 1.75 % in place of 3 %. The AO shall recomputed the addition after applying the net profit @ 1.75 %. We direct accordingly. 9. In the result, the appeal filed by the assessee is partly allowed. 10. Now, we shall take up I.T.A.No. 530/Ind/2015. 11. This appeal by the assessee has been filed against the levy of penalty of ₹ 15,81,940/- u/s 271(1)(c) of the Income-tax Act, 1961. 12. This appeal is also barred by time by 29 days. The Ld. Counsel for the assessee has submitted an application seeking condonation of delay stating that due to death of his brother, the assessee could not file the appeal in time. The assessee has also submitted a death certificate alongwith paper cutting as evidence. To this effect, the assessee has filed an affidavit also. 13. We have perused the application and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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