TMI Blog2018 (11) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... ly regarding a part of the process, and therefore, the additions made on account of wastage was improper. The Tribunal was justified in not agreeing with the A.O.'s determination as to the wastage. We find no reason to interfere with the fact finding of the Tribunal. Estimation of the shortage claimed on transportation - additions made by the A.O. on the basis that there was an excess claim - Held that:- It is observed that the rates are finalised only after negotiations and at the time of booking, the rates are put as it is applicable to good quality oil. Apart from the two rates pointed out by the A.O., there is absolutely no other evidence to substantiate the case of under-invoicing as found by the A.O. The Tribunal has found that cru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench, in which four appeals filed by the Revenue were dismissed; while the assesse's appeal was allowed. 2. The assessment pertaining to the years 2001-02 to 2004-05 were challenged in four appeals filed by the Revenue, while there was a cross-appeal filed by the assessee pertaining to the year 2004-05. 3. The appeals arise from the assessments completed under Section 153A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'), except for the assessment year 2004-05, which was competed under Section 143(3) of the Act. Since the issues involved were common, it was disposed of by a common order by the Tribunal. 4. The facts in brief are thus: The assessee company is engaged in the business of manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is to be upheld ? 7. We heard the Senior Counsel, Government of India (Taxes) and the learned Counsel appearing for the assessee. 8. Regarding the percentage of waste in the refining process of palm oil and palmolein, the assessee claimed wastage at 7.90%. The A.O. on visiting the premises of the assessee's factory and based on the statement of the Production Manager, who had allegedly admitted that the wastage of the oil in the bleaching process was not more than 0.25%, made an assessment that the wastage could not be more than 0.65%. It was found that the wastage claimed for all the years was calculated at a higher rate and additions made. The A.O. could not have on his own assessment, arrived at a conclusion regarding the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificates issued by Marine Surveyors on loss in transportation; found the claim to be excessive for reason of no claim was raised before the insurer. The A.O. found that the assessee has not furnished any evidence to the effect of having made a claim with the Insurance Company for the alleged loss in transportation and therefore, the A.O. restricted the transport loss at 0.25% and disallowed the excess claimed by the assessee for the assessment years 2002-03 and 2003-04. With respect to assessment year 2004-05, the A.O. has observed that as per the Marine Surveyors Certificate, loss to the extent of 0.1% was permissible and above the said loss, the assessee could have lodged a claim to the Insurance Company for reimbursement and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary were changed due to subsequent negotiation and the assessee had utterly failed to bring on record anything on this count. The learned Counsel for the assessee would argue that the diary was in the form of an order book and no adverse inference could be drawn against the assessee as the hard-disk of the computer was seized during the course of search. It is also submitted that the rates of palm oil and palmolein are different. The Tribunal has observed that the A.O. has not made any attempt to separate the quantity of the cash sales of palm oil and palmolein, but has taken an average rate. That could not have been done because the rates are different. The diary, which was seized, is only an order book and additions could not have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysia and Singapore, through ships and necessarily the oil settled at the bottom is bound to be inferior than the oil at the upper level of the container. It is rightly pointed out that there are no duplicate books maintained with two rates contradicting each other and therefore the C.I.T. (Appeals) and the Tribunal rightly came to the conclusion that the additions made on this count were not appropriate. 12. The assessee's appeal before the Tribunal was pertaining to the confirmation by the CIT (Appeals) of the additions made by the A.O. on alleged suppression of sales by under-invoicing sales to M/s Sulekha Traders to the tune of ₹ 1,63,346/- for the assessment year 2004- 05. The Tribunal has found that this is an issue identi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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