TMI Blog2008 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ok results and yield and shortages as shown by the assessee were accepted ? (ii) Whether the Tribunal was right in law in estimating the production, wastage and the sales on theoretical basis and on its own without either considering the past assessment of the assessee or any comparative case or the Tribunal decision of an earlier year on identical point ? (iii) Whether on the facts and in the circumstances of the case because according to the Tribunal s. 145 applied estimating the turnover and the GP on the basis of past assessments was a right thing to do in law ? 2. This Court has issued the notice on 31st Jan., 2008. The notice was issued to the respondent and Mr. M.R. Bhatt learned senior standing counsel has filed his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng therefrom the sales of ₹ 19,51,289 computed the suppressed sales of sweets of ₹ 15,58,481 and likewise computed the suppressed sales of 'farsan' of ₹ 3,05,171 after deducting the shortage of 5 per cent. 6. Being aggrieved by the said order of the AO, the assessee preferred an appeal before the CIT(A), Baroda. The assessee pointed out before the CIT(A) that its gross profit of 22.35 per cent compares favourably with 23.69 per cent of asst. yr. 1998-99 and 23.06 per cent of asst. yr. 1997-98. The addition made by the AO would bring about the GP to 54.07 per cent. It was further pointed out that the complete details of raw materials purchased, consumption thereof and production of finished goods have been mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inbuilt defect in the Tribunal's order as pointed out by the learned counsel is that the assessee had shown the sale of 'farsan' of 22,243 kgs; the Tribunal because of theoretical basis computed it at 17,337 kgs. (in other words, lower than what the assessee had shown); whereas against the sweets sale of 22,356 kgs. shown by the assessee, the Tribunal computed 36,920 kgs. against the AO's 31,805 kgs. (in other words, higher than even the AO). Such was the result of absolutely theoretical approach of the Tribunal, unconnected with the facts of the case. 9. Being aggrieved and dissatisfied with the order dt. 1st Dec., 2006, of the Tribunal, the assessee has preferred this tax appeal before this Court. 10. Learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s etc. He has, therefore, submitted that the Tribunal's order being perverse and unreasonable, the finding given therein is required to be reversed and the appeal of the assessee is required to be allowed. 11. Mr. M.R. Bhatt, learned senior standing counsel for the Revenue has submitted that the Tribunal's order clearly reveals the finding of fact and no question of law arises out of the order of the Tribunal. Hence the appeal of the assessee is required to be dismissed at the threshold. He has submitted that the Tribunal has specifically observed in its order that looking to the assessee's business, non-maintenance of quantitative details and day-to-day stock, sales and purchases being not fully vouched, item-wise production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the inferences drawn therefrom by the Tribunal. It is an admitted fact that the assessee is an old assessee. It is regularly assessed by the Department. In the assessee's own case the matter went upto Tribunal for asst. yr. 1995-96, wherein GP is adopted at 25 per cent The Tribunal has brushed aside the said order for the asst. yr. 1975-76 only on the ground that complete facts for that year have not been furnished by the assessee and hence it is not justified to restrict to the point of GP rate. The Tribunal has also stated in its order that it is the case of the estimation of turnover and of GP rate, rather it is the case of determination of income on the basis of yield to be calculated on the basis of actual consumption. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken the figures of opening stock and the period of such stock was adopted for one week and it was multiplied by 52 weeks. The figures so arrived at are so unreasonable that it resulted into higher stock than the stock adopted by the AO. So far as the stock of sweets is concerned the Tribunal adopted sales more than the sales estimated by the AO and the stock of 'farsan' or 'namkin' had resulted into lower than what the assessee had shown. 14. For the foregoing facts which have been appreciated in their true perspective, we are of the view that the Tribunal has not correctly decided the issue raised before it and it requires reconsideration. We, therefore, set aside the order of the Tribunal and remand the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
