TMI Blog2015 (5) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. The onus to establish the facts is only on the assessee. The matter is accordingly set aside to the file of the first appellate authority to examine the assessee s contention as to parity of facts. The Department, on its part, however, cannot act de hors, or inconsistent with, the material on record, and a similarity of business conditions is a relevant factor in estimation of income. The same, however, shall not bind the Revenue authorities, who are entitled to examine other aspects of the matter as well, viz., the input costs, contract rate/s, etc. The matter, we may emphasize, is wholly factual, with it being permissible for the Revenue to show that, despite parity of facts, the said rate does not represent or yield the correct inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pool of funds, through which funds for its different purposes are channelized by the assessee. The same thus is of little assistance in identifying the actual source of funds, which may require analysis of the assessee s financial position with further reference to its contractual obligations. The matter stands already remanded to the file of the assessing authority on terms which cannot be regarded as either inapposite under the circumstances or prejudicial to the assessee. We accordingly find no reason to modify the same, as sought by the assessee per its appeal, even as in our view its argument, on the basis of which a direction to factually determine the matter has been made, is, on its face, without merit. The AO shall accordingly ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, the same be followed for the current year as well, so as to maintain consistency. The Revenue s stand, on the other hand, was that each year is an independent unit of assessment and the principle of res judicata is not applicable to the proceedings under the Act. 4. We have heard the parties, and perused the material on record. Without doubt, the principle of res judicata is not applicable to the proceedings under the Act (refer, inter alia, New Jehangir Vakil Mills Co. Ltd vs. CIT [1963] 49 ITR 137 (SC) and M. M. Ipoh vs. CIT [1968] 67 ITR 106 (SC)) and, accordingly, no assistance could be drawn from the manner in which the assessment for a particular year has been framed or came to be finalized, and is in any case, not bin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, if the projects on which profit stands assessed for AY 2003-04, are the same for which it is for the current year, the assessee is entitled to claim a review of its profit in light of its assessment for that year. The work-in-progress (WIP) for the current year would in that case be only a continuation of the WIP for that year. The onus to establish the facts is only on the assessee. The matter is accordingly set aside to the file of the first appellate authority to examine the assessee s contention as to parity of facts. The Department, on its part, however, cannot act de hors, or inconsistent with, the material on record, and a similarity of business conditions is a relevant factor in estimation of income. The same, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to the claim for depreciation. In the facts of the case, it is not clear if the profit rate for A. Y. 2003-04, on which the assessee relies, stands assessed at net or gross of depreciation, information qua which could not be supplied by the parties on being enquired by the Bench during hearing. Rather, inasmuch as no allowance for depreciation, otherwise mandatory, stands made separately, the presumption (on facts) would only be that the profit rate stands assessed taking into account all the claims, including depreciation, being, in fact, patent. We, therefore, rather than giving any specific direction on quantum, direct that the profit for the current year be first estimated before depreciation, and depreciation as exigible allowed sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee. The same thus is of little assistance in identifying the actual source of funds, which may require analysis of the assessee s financial position with further reference to its contractual obligations. The matter stands already remanded to the file of the assessing authority on terms which cannot be regarded as either inapposite under the circumstances or prejudicial to the assessee. We accordingly find no reason to modify the same, as sought by the assessee per its appeal, even as in our view its argument, on the basis of which a direction to factually determine the matter has been made, is, on its face, without merit. The AO shall accordingly observe the directions by the ld. CIT(A), and decide per a speaking order, i.e., wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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