TMI Blog2002 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... rs namely Shri G. Ramaiah Reddy and two HUFs with Kartas Raghava Reddy (S/o G. Ramaiah Reddy) and Dasarath (S/o G. Ramaiah Reddy). It is engaged in the manufacture and sale of bricks. 4. There is another firm by the name M/s. Anjaneya Table Mould Bricks ("ATMB" for short) which is also engaged in the same line of business i.e. manufacture and sale of bricks. The partners in this firm are, namely, Smt. Rathnamma (wife of Ramaiah Reddy), Smt H. Varalakshmi (wife of Raghava Reddy), and Smt. R. Asha (wife of R. Dasarath). On 2nd June, 1992, search operation under s. 132 of the IT Act, 1961 (hereinafter referred to as "the Act") was carried out in the case of M/s. Anjaneya Brick Works. During the course of search, several incrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 1991, to 5th Oct., 1991, which may be relevant for the asst. yr. 1992-93 and not for the asst. yr. 1991-92. (ii) After hearing the rival submissions regarding this appeal we come to the conclusion that the appellant has a good case on merits. In the assessment order dt. 31st March, 1994 for asst. yr. 1991-92, in the case of the appellant M/s. Anjaneya Brick Works, an estimation of production had been made relying on the seized document marked "A-19" which relates to asst. yr. 1992-93 and not the accounting year under consideration. The assessee/appellant's plea is that in the absence of any incriminating document, its accounts as per the returned income should have been accepted. The AO calculated the suppressed production as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of evidence regarding the unaccounted investment for the years 1991-92 and 1992-93. And also the other circumstance that the appellants are also managing the activities of the other firm, which is a sister concern, can also be concluded to be in favour of the appellants, because when both the businesses are related to one family, it is immaterial in which of the kiln, irrespective of the fact whether it is having more or less chambers, the work was got done. When two views are possible, the one which is in favour of the assessee/appellant is to be given effect to. We accept this plea of the appellant. 6. The next issue relates to the estimation done by the Department regarding unaccounted production, applying the rule of uniformity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is a business which is 100 per cent dependent on the availability of labour, who in turn are more tempted to go to their native places on the major festivals. It is also a common place knowledge that once these people go to their native homes, they take some time to come back because they come to the place of work along with their bag and baggages and go back to perform other important activities of their life including marriages, etc., of their grown-ups. So the rule of uniformity cannot be and should not be applied on the estimate basis. We concede that there can be time and times when the uniformity can be maintained but for that case there should be some direct evidence available in a given case. Likewise the estimation done by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertains to asst. yr. 1991-92. "(i) Admittedly, certain documents were seized by the Department during the course of search which are marked as "A-10" for the period from 1st April, 1990 to January 1991. The case of the appellant is that no production took place during the months of February and March 1991 outside the books, as there was no demand and there was stock on hand. (ii) The learned AO estimated the unaccounted production for February and March 1991 at 7,39,200 bricks and fixed the annual unaccounted production at 52,79,940 bricks. Finally he determined the unaccounted production at 14,51,966 bricks after taking into consideration the usual wastage etc., and fixed its sale price at 0.80 paise per brick and arrived at a turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in earlier part of our order. This is also a noticeable fact that the production of bricks is to be taken only when there is demand in excess of the stock. But in the case of this appellant the documents were seized, so the Department is at liberty to make estimation for the remaining months, but after considering the reasonable explanation of the assessee the unaccounted production thus should be recomputed in the light of our above observation in this case. (vi) So far as gross profit estimate is concerned, it cannot be 64 per cent in the absence of comparable cases. When the declared GP as per the regular books on the disclosed turnover of Rs. 15,94,265 has been only 25 per cent and the same has been accepted we hold that GP of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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