TMI Blog2021 (7) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... e language, nonetheless the findings recorded by the ITAT being findings of fact, the appeal cannot be entertained in absence of any substantial question of law being involved in the same. It may be noted that the Appeal under Section 260A could be admitted only on the High Court being satisfied that the case involves a substantial question of law. - R/TAX APPEAL NO. 162 of 2021 - - - Dated:- 15-7-2021 - HONOURABLE MS. JUSTICE BELA M. TRIVEDI And HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI MR.VARUN K. PATEL (3802) FOR THE APPELLANT ORDER (PER : HONOURABLE MS. JUSTICE BELA M. TRIVEDI) 1. The present Tax Appeal filed by the appellant - The Principal Commissioner of Income-Tax, Vadodara-3, under section 260A of the Income-Tax Act, 1961 (hereinafter referred to as the said Act ) is directed against the impugned order dated 30.09.2019 passed by the Income Tax Appellate Tribunal (hereinafter referred to as ITAT ) IN ITA No. 2283/Ahd/2010 for the A.Y. 2006-07 in case of the respondent assessee. 2. The learned Senior Standing Counsel Mr. Varun K. Patel for the appellant has proposed the following two substantial questions of law in the present appeal : - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82.98 Lacs = 0.022 Lacs 205639.24 M.T. = ₹ 2229 Per Mertic Tone Consumption working furnished by assessee during assessment proceedings Consumption of Raw material in M.T. Dora Unit 65275 M.T. Hoskote Unit 117420 M.T. 182695 M.T. Difference between consumption of raw material as per return and as per working submitted during assessment proceedings : - As per return of Income 205639 M.T. Less : As per working 182695 M.T. Discrepancy 22944 M.T. Discrepancy in ₹ 22944 M.T. x ₹ 2229 = ₹ 5,11,42,176/- Therefore discrepancy in terms of % is as under: Dora Unit 9408 M.T. x 100 = 14.41% 65275 M.T. Hoskote Unit 13536 M.T. x 100 = 11.52% 117420 M.T. After considering all the facts and circumstances of the case and thereafter taking into consideration of all possible wastage, 2.5% is most appropriate and reasonable for both Dora and Haskote Unit. Dora Unit 65275 x 2.5% = 1632 M.T. Hoskote Unit 117420 x 2.5% = 2936 M.T. Discrepancy after taking into account wastage / shortage is : Dora Unit = 9408 M.T. - 1632 M.T. = 7776 M.T. Hoskote Unit = 13536 M.T. - 2936 M.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue preferred an appeal being No. 2283 of 2010 in respect of the A.Y. 2006-07, before the ITAT. The ITAT passed the common impugned order on 30.09.2019 in respect of the Appeals filed by the respondent assessee as well as by the appellant Department, for the various assessment orders i.e. A.Ys. 1998-99, 1999-2000, 2001-02, 2003-04, 2005-06, 2006-07 and 2007-08. So far as the appeal of the Revenue being No. ITA No. 2283 of 2010 for the A.Y. 2006-07 was concerned, the ITAT dismissed the same by observing as under: - 112. Ground No. 1 is against the deletion of addition of ₹ 4,09,60,104/- on account of discrepancy in stock and ₹ 4,07,214/- being estimated value of scrap. 113. We have heard the rival submissions and both the parties agreed that the facts are similar as in the case of A.Y. 2005-06 and 2003-04. Therefore, our findings as recorded for 2003-04 and 2005-06 in the appeal of the Revenue in the earlier part of this order would apply to this ground of appeal, accordingly this ground of appeal of Revenue is therefore dismissed. 114. In the result, appeal of the Revenue for A.Y. 2006-07 is dismissed. 7. Being aggrieved by the same, the present Tax App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic calculation and conversion of stock maintained in MT into sq. mtrs. Therefore, there has to be variation in the working of the assessee which was filed as the Assessing Officer wanted the same in a particular format. However, the Assessing Officer has not brought out any defects in maintenance of books of accounts. Therefore, mere arithmetic calculation made is not suffice for making addition. Further, the similar issue has been adjudicated in earlier part of this order for A.Y. 2003-04. Therefore, our findings given therein against the appeal of the Revenue, therefore following the same this ground of appeal is dismissed. 10. In view of the above, it is clear that on the basis of the findings recorded by the ITAT for the A.Y. 2005-06, in the earlier part of the impugned order, it has dismissed the appeal of the revenue for the A.Y. 2006-07. It has been observed by the ITAT that the addition with regard to the value of discrepancy of stock by the Assessing Officer was based on the arithmetic calculation and conversion of stock maintained in Metric tonne into sq. mtrs. and therefore there has to be variation in the working of the assessee, which was filed as the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial question of law is involved. The tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question is of general public importance, or (3) whether it is an open question in the sense that issue is not settled by pronouncement of this Court or Privy Council or by the Federal Court, or (4) the issue is not free from difficulty, and (5) it calls for a discussion for alternative view. There is no scope for interference by the High Court with a finding recorded when such finding could be treated to be a finding of fact. 12. Again the Supreme Court in case of Vijay Kumar Talwar versus Commissioner of Income Tax in (2011) 330 ITR 1 considered the issue of substantial question in context of Section 260A of the IT Act and observed as under: 18. It is manifest from a bare reading of the Section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression substantial question of law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l stages and impelling necessity of avoiding prolongation in the life of any lis. 20. In Hero Vinoth (Minor) Vs. Seshammal (2006) 5 SCC 545, 556, this Court has observed that: The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the wellrecognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 21. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been (2006) 5 SCC 545 taken into consideration or inadmissible evidence has been taken into consideration or legal principles have no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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