ITO, Jabalpur V. M/s. Santosh Jaiswal, Jabalpur

ITA 286/JAB/2006

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1644 (ITAT-JABALPUR)
• Duration Of Justice: 15 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 17-11-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR GUPTA
• Assessee Lawyers: SANJAY SETH
• Keywords: Business income; Additional evidence; Tax effect; Set aside
• Section: 144; 143(3); 268A; 143(2)

Judgement Text

1 | P a g e IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through web-based video conferencing platform) BEFORE SHRI SANJAY ARORA, HON‟BLE ACCOUNTANT MEMBER & SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER I.T.A. No. 286/JAB/2006 (Asst. Year: 2003-04) C.O.No. 09/JAB/2007 (Arising out of I.T.A. No. 286/JAB/2006) (Asst. Year: 2003-04) A Revenue by : Shri Rajesh Kumar Gupta, Sr. DR Assessee by : Shri Sanjay Seth, FCA Date of hearing : 08/04/2022 Date of pronouncement : 01/07/2022 ITO, Ward-1(2), Jabalpur. vs. Kartik Jaiswal [as LR of late Shri Santosh Jaiswal], Excise Contractor, Ranjhi, Jabalpur (MP) [PAN: AAYFS 9557 J] (of lt. Sh. Santosh Jaiswal) (Appellant) (Respondent) Kartik Jaiswal [as LR of Shri Santosh Jaiswal], Excise Contractor, Ranjhi, Jabalpur (MP) PAN : AAYFS 9557 J (of lt. Sh. Santosh Jaiswal) vs. ITO, Ward-1(2), Jabalpur. (Applicant) (Respondent) ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 2 | P a g e O R D E R Per Bench This is an Appeal and the Cross Objection (CO) by the Revenue and the Assessee respectively, agitating the part allowance of his appeal contesting his assessment under section 143(3) of the Income Tax Act, 1961 („the Act‟, hereinafter) dated 30/03/2006 for the Assessment Year (AY) 2003-04 by the Commissioner of Income Tax (Appeals), Jabalpur („CIT(A)‟ for short) vide order u/s. 250(6) dated 15/09/2006. Brief facts 2. The assessee, an individual, is a liquor vendor, for which he obtained a licence from the Excise Department of the State of MP, for the relevant year for the Ratlam District of MP (through an open auction process), paying a licence fee of Rs. 1700 lacs, besides another Rs. 5.21 lacs (for the beer licence). The assessee returned a loss of Rs. 19,618 on 28/11/2003, which was subject to verification procedure by the Assessing Officer (AO) by issue of notice u/s. 143(2) on 28/10/2004. The assessee, who did not produce his books of account during the assessment proceedings despite being called upon to, was accordingly assessed at an income of Rs. 1,38,42,426 u/s. 144. Toward this, the AO estimated the assessee‟s gross profit (GP) at 7.6% on turnover of Rs. 2776 lacs, or at Rs. 210.98 lacs (as against the disclosed GP rate of 6.42% and turnover at Rs. 2441 lacs and Rs. 154.86 lacs. The basic reason for the same was the non-maintenance of sale vouchers, nay, even daily sale-sheets at the 85 shops (in the district) through which the liquor was sold, so that both the sale quantity (i.e., volume) and sale price (consideration) were not subject to verification or could be relied upon. As regards the expenses claimed from the gross profit, the same were again un-evidenced, except on bank guarantee per se (i.e., excluding other expenses on valuation, project report)(Rs.10.50 lacs), which was disallowed as pertaining to the ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 3 | P a g e immediately preceding year. The expenses were also, accordingly, estimated by the AO, allowing them at 50% to 80% of that claimed, estimating the sales at Rs. 2669 lacs (at 1.57 times the licence fee). The interest income on bank FDR, an admitted income, was separately added, and income assessed at Rs. 4.90 lacs, and income assessed at Rs. 138.42 lacs. In appeal, the ld. CIT(A), while upholding the non-acceptance of the declared book results, estimated the income by applying the net profit rate of 2.5%, allowing, thus, part relief. Further appeals by both the assessee and the Revenue were decided by the Tribunal vide it‟s order dated 25/05/2007. The basis for the same was a decision by the Hon'ble jurisdictional High Court in Badri Prasad Bhagwandas & Co. vs. CIT [1995] 82 Taxman 109 (MP), wherein the Hon'ble Court had, validating the method of estimating the sales on the basis of the licence fee, approved a sale conversion ratio of 2.5 times the licence fee and a net profit rate of 5% (of sales). The matter was carried in further appeal at the instance of the assessee before the Hon'ble High Court which, vide it‟s order dated 23/11/2009, set aside the Tribunal‟s order, directing adjudication afresh per a speaking order after hearing the parties. This explains the instant proceedings. 3. Before us, the matter was argued at length. The Revenue‟s appeal, it was argued, survives no longer due to low tax-effect u/s. 268A in view of the Instruction No. 03/2018 dated 11/07/2018 followed by Instruction No. 17/2019 dated 08/08/2019, both issued u/s. 268A(1) r/w s. 268A(4), which applied to pending appeals as well. Further, Ratlam District, it was contended by the ld. counsel for the assessee, Shri Seth, arguing the assessee‟s CO on merits, was during the relevant year facing drought, a continuing condition. Toward this, State Government (in the Irrigation Department) notification dated 20/11/2000 deferring the collection of „sinchai kar‟ (stated to be irrigation charges) (PB-4, pgs.1-3) was produced as well as the excise revenue (by way of licence fee) for the Ratlam District for f.y.2001-02, for the immediately preceding year being at Rs. 511 lacs ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 4 | P a g e (PB-1, pgs. 02-18). Only 35 (out of 85 available) shops could be auctioned for that year, which itself was proof enough of the drought condition. There was thus no warrant for estimation of sales and profit thereon higher than that disclosed. Toward expenses, he claimed that the assessee had justified the acceptance of that claimed on the basis of reasonability, i.e., when reckoned on per shop basis, averaging it over 85 shops. This sums up assessee‟s case before us, while the Revenue would, in response, rely on the orders by the Revenue authorities as indeed by the Tribunal. 4. We have heard the parties, and perused the material on record. 4.1 The first thing that needs to be, in the given facts and circumstances, kept in focus is the directions by the Hon'ble High Court while setting aside the matter back to the Tribunal for fresh adjudication. The same read as under:- “12. On a perusal of the order of the Tribunal, it is vivid that the Tribunal has arrived at an abrupt conclusion without adverting to the facts and without expressing an opinion as to how the decision in Badri Prasad Bhagwandas (supra) is applicable. In case of this nature, it is incumbent on the part of the Tribunal being a final fact finding authority to scan the facts and apply the law. An application of mind should be parent and arriving of conclusion should be on a proper basis. Neither the Court nor the Tribunal can reach a conclusion without scrutiny of the facts in an apt manner and that would tantamount not to ascribing of reasons in a proper manner. It is the duty of the Tribunal to cautiously exercise power by scanning all the facts as its conclusion based on facts is treated to be final unless it is perverse. In the case at hand, as is luminescent, the Tribunal has not dealt with the facts in proper perspective and not afforded an opportunity to the assessee by calling for the record from the assessing officer and has applied the ratio of the decision rendered in Badri Prasad Bhagwandas (supra) without holding whether the same would be applicable to the factual matrix. 13. In view of the aforesaid, we are unable to concur with the decision rendered by the Tribunal inasmuch it paves the path of vulnerability due to inapposite delineation of facts and recording of abrupt conclusion without appreciating the factual matrix in proper perspective. Thus, the order of the Tribunal has to pave the path of extinction and, accordingly, the same is set aside. 14. Resultantly, the appeal is allowed and the order passed by the Tribunal is set aside and the matter is remanded to the Tribunal for fresh adjudication. There shall be no order as to costs.” ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 5 | P a g e Clearly, it is the case of an open set aside with directions. The reason is simple. The matter is principally one of fact, i.e., the aspect of non-reliability of the assessee declared results and, thus, the non-acceptance, or the invocation of s. 145(3) (entitling the assessing authority to make an assessment in the manner provided in s. 144), being not in dispute, the issue at hand boils down to what ought to be the best estimate of the assessee‟s income from the business of liquor vending in the facts and circumstances of the case. The Hon'ble Madras High Court, following Apex Court, has in CIT vs. Rayala Corporation (P.) Ltd. [1995] 215 ITR 883 (Mad), clarified that it is the best judgment of the assessing authority and no other. It is only he who is in law entitled to make the estimate, to the best of his judgment, based on the materials adduced by the assessee as well as that gathered by him. Allowing the assessee opportunity to furnish fresh evidence, not before the assessing authority, would tantamount to converting a sec. 144 proceedings into a sec. 143(3) proceedings, which an appellate court cannot, unless of course the applicability of sec. 144 itself is, on challenge, struck down. The function of an appellate authority under the circumstances is thus limited to whether any infirmity attends the said estimation process – purely a matter of fact, by the AO. It was, accordingly, explained to the parties during hearing that we shall, where we find any material as having a bearing in the matter, have to restore it back to the file of the AO for, firstly, verification of the said information now being provided and, further, revisiting his estimate in light thereof. This, again, would only be in an extreme case where compelling and relevant evidence/s is brought forth by the assessee, explaining also the reason for non-furnishing of the same earlier, inasmuch as the same, as apparent, extends the scope of the proceedings which, as explained, is inadmissible. Rule 46A (of the Income Tax Rules, 1962) governing the admission of additional evidence before the first appellate authority is, as is well-settled, mandatory. Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963, which deals with the admission of additional ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 6 | P a g e evidence before the Appellate Tribunal, is even more stringent, practically excluding the furnishing of the additional evidence by the parties before it. The same is again, as explained by the Apex Court in Roshan Di Hatti vs. CIT [1977] 107 ITR 938 (SC), mandatory in character. Reference in this context may also be made to decisions in Tek Ram (thro' LRs) v. CIT [2013] 357 ITR 133 (SC); Velji Deoraj & Co. v. CIT [1968] 68 ITR 708 (Bom); and CIT v. Text Hundred India Pvt. Ltd. [2013] 351 ITR 57 (Del), to cite some leading decisions in the matter, explaining the parameters circumscribing the exercise of power to call for or admit additional evidence by the second appellate authority. Needless to add, we find the same as wholly missing and non-existent in the instant case. In fact, any evidence furnished after a time lag; the year of assessment having expired nearly two decades ago, itself makes it vulnerable on that ground, besides the challenge of its verifiability. This is apart from the load on the administrative machinery and the unfeasibility of verification after a time lag, which, though cannot be formalized in a rule, depend as it does on the nature of the evidence and that of the verification which it is amenable to. It is for these reasons that the Apex Court in Keshav Mills Co. Ltd. v. CIT [1965] 56 ITR 365 (SC) held that it loses its evidentiary value. Besides the reliability of evidence being furnished after such a time lag, as obtains in the instant case, rendered suspect for that reason, and the concomitant issue of its verifiability, it raises very serious issue of the conduct of the assessee, who drag proceedings for years. Why, one may ask, was the said reason (of drought) not raised earlier, in fact, before the assessing authority, for non-attendance before whom there is no explanation. Why, again, one may ask, it was not advanced before the ld. CIT(A), proceedings before whom commenced in April, 2006, leading evidence in the matter. Where indeed so, that in fact would be the first thing that any reasonable person would state, while in the instant case it was not so even before the Tribunal, or even the Hon‟ble High Court, and in fact even not in the second round till the second appellate stage. No explanation for this weird ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 7 | P a g e conduct on the part of the assessee was forthcoming from Sh. Seth during hearing, despite being queried in the matter. Inasmuch as this is the second round before the Tribunal, with it having been subject to a decision by the Hon'ble High Court, which needs to be honoured both in letter and in spirit, Sh. Seth was repeatedly inquired about the evidence which the assessee claimed before the Hon'ble High Court to be unable to be furnish before the Tribunal in the first place, and if the same had been before the Revenue authorities in the second round, whose orders mention of no such evidence furnished by the assessee and, rather, sans any reference to any additional evidence. Now, if this is not a mockery of the process of law, what, one may ask, is, and ought to, and for that reason alone, rubbished. 4.2 We may, nevertheless, specifically consider the reasons that led to the set aside of the Tribunal‟s order by the Hon‟ble High Court. It found fault with the adjudication by the Tribunal in the first round as it had, despite being called upon by the assessee to, not called for the material relied upon by the AO. Two, the case law relied upon by the Tribunal in revising the AO‟s estimate was for a period since when the excise policy had changed. None of these two instances (i.e. change excise policy and the material relied upon by the AO in framing assessment) were insisted upon by the assessee before us in the second round. In fact, we are unable to find nor could the parties, upon asking, show us as to what that material is. Further, true, the excise policy had changed. However, the assessee could not, despite being asked, and more than once, tell as to how and what impact the change in policy would have on the profit, which is only thing relevant as far as the assessment of income is concerned. Rather, Sh. Seth would admit to the same having no measurable impact on the profit. This is understandable as, whatever be the excise rate and it is manner of collection, for the assessee-vendor what matters is the cost – both direct and indirect, to him, which is to be recovered so as to fetch him a reasonable return on investment. This is precisely why the profit formula in all cases relied upon by ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 8 | P a g e either side, and in fact in such a cases that come before the Tribunal from time to time, proceed on investment as the basis, estimating sales as a ratio thereof and, further, applying a margin on that sale. The said formula would thus continue to hold, and it is only the parameters therein, i.e., the sale conversion ratio and the profit rate (on the sale), that would require being adapted, and whose value may vary depending upon the facts and circumstances of the case. At this stage, we may clarify that we are conscious that the Revenue‟s appeal survives no longer in view of the low tax effect. While that is true, it may have no material bearing inasmuch as a substance of the cross appeals is the same, i.e., the most appropriate estimate of the assessee‟s business income in the given facts and circumstances of the case, and which would necessarily require specifying the defect in the AO‟s estimate, where the same is not being upheld or accepted as such. While none have, at any stage, by the assessee-appellant. The assessee also could not specify the materials which were required to be sought from the AO, as claimed before the Hon'ble High Court, which rather it could obtain himself upon inspecting the assessment record. We say so as, as afore-noted, we find no reference to any such material in the assessment order. The AO only noted two decisions by the Tribunal adopting different parametric values and, taking a mean path, applied an average parameteric value. In fact, even this „reliance‟, if we may say so, by the AO, has not been assailed before us; the assessee‟s sole case being of an acceptance of the declared results in view of the drought conditions. 4.3 Inasmuch as the prevalence of drought conditions, a supervening macro environmental factor, which would decidedly have a dampening effect on the sale of liquor, which is impacted by the disposal income, the assessee, despite the legal constraints of the assessment being a best judgment assessment, which aspect per se is not under challenge, allowed to set up his case on that basis. We did this in the sole interest of justice, even as we wonder why this was not at any time earlier, ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 9 | P a g e i.e., either before the AO or before the three appellate authorities (i.e., up to the Hon'ble High Court) before whom the matter travelled, while this, where so, would be the first thing that an assessee would have stated years earlier. The credibility of any evidence also gets considerably diluted with time, besides impairing the verification process (Keshav Mills Co. Ltd. (supra)). Be that as it may, we find no evidence worth the name. The very fact that the assessee paid Rs. 17.05 crores as licence fee (including for the beer licence), bidding for all the 85 shops in the district, as against the value of Rs.5.11 crores (for 35 shops) a year earlier, is rather itself proof enough of a remarkable change in the underlying economic conditions. If anything, taking advantage of a much below par collection for the immediately preceding year, so that the State Government would only be overly keen to sell all the shops, the assessee could, and most likely would, have pressed home the tactical and psychological advantage, bidding at a discount. In fact, the assessee‟s case gets disproved by the fact of a licence fee of Rs. 17.05 crores for the current year, as against at Rs. 5.11 cr. for the immediately preceding year, whereat in fact the drought conditions can be said to exist and, rather, stand exhibited, including of the same continuing from the year 2000. The licence fee, it may be noted thus, indicates the confidence in and a fair assessment of market by the bidder. Nothing, thus, turns on the assessee‟s plea, itself unproved, of the existence of the drought conditions during the relevant previous year. The AO has applied an average sale conversion ratio of 1.63 times the licence fee (LF), i.e., of two values of 1.57 and 1.70 adopted in the two cases (specified by name in the assessment order) decided by the Tribunal. As aforesaid, the same has not been assailed in any manner before us. We, therefore, consider it valid in the facts and circumstances of the case. 4.4 The next step in the estimation process is the profit earned, i.e., the profit rate to be applied. While the AO applied the gross profit (GP) rate, followed by specific disallowances in view of the absence of substantiation of his claims by the assessee, the ld. CIT(A) changed the said method by estimating the net profit rate. ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 10 | P a g e He does not, while doing so, state any reason for the same. He also does not find fault with the method adopted by the AO, whose best judgment the law provides for, nor do we find any. This is as while the sale had to be necessarily estimated, leading to estimation of the gross (or trading) profit, i.e., the sale minus direct cost thereof, there is no compelling reason to estimate the net profit. The observation by the Apex court in CIT v. A. Krishnaswami Mudaliar [1964] 53 ITR 122 (SC) in this regard, are apposite: „If, therefore, there is a system of accounting regularly employed and by appropriate adjustments from the accounts maintained taxable profit may properly be deduced, the Income-tax Officer is bound to compute the profits in accordance with the method of accounting. But where in the opinion of the Income-tax Officer the profits cannot properly be deduced from the system accounting adopted by the assessee it is open to him to adopt a more suitable basis for computation of the true profits.‟ (pg. 129) 4.5. As a first step in the process, we therefore estimate the assessee‟s GP rate, which has been estimated at 7.6 % by the AO, by applying the rate disclosed in a parallel case, i.e., Amarkantak Enterprises. Though the year is different, no distinguishing feature has been shown. The return of income of the said firm (for AY 2000-01), furnished by the assessee (PB-3, pgs. 01-03), would be of no assistance in the matter. The said year, as found, impacted by drought conditions. Two, there is no indication of the profit rate, gross or net, therein, to be of any help. The estimation of the gross profit, is, in our view, an extension of the process of estimation of sale, as it is only upon applying the GP rate that the suppression in profit on account of suppression in sales can be determined. We, accordingly, consider the rate applied by the AO as reasonable. The GP is accordingly taken at Rs. 210.98 lacs (Rs. 27676 lacs @ 7.60 %). Here we may clarify that the two cases referred to by the AO are only indicative of the rates exhibited in different decisions which have found approval by the Tribunal. No further significance may be attached to these two cases. As explained by the Apex Court in several cases Kachwala Gems vs. CIT [2007] 288 ITR 10 (SC); CST vs. ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 11 | P a g e H. M. Esufali H. M. AbdulAli [1973] 90 ITR 271 (SC), et. al. the process of estimation necessarily involves some guess work. In it‟s words: „In estimating any escaped turnover, it is inevitable that there is some guess-work. The assessing authority while making the best judgment assessment, no doubt, should arrive at his conclusions without any bias and on a rational basis. That authority should not be vindictive or capricious. If the estimate made by the assessing authority is a bona fide estimate and is based on a rational basis, the fact that there is no good proof in support of that estimate is immaterial. Prima facie, the assessing authority is the best judge of the situation. It is his best judgment and not of anyone else. The High Court cannot substitute its best judgment for that of the assessing authority.‟ 4.6. The next step is the expenditure to be deducted from the GP in arriving at the net profit (NP). Toward this, we firstly observe that the interest on bank FDR (Rs. 4.90 lacs), even though assessed as business income, is liable to be separately added and, accordingly, uphold the action of the AO in doing so. The beer licence fee (Rs. 5.21 lacs) stands already considered as part of the trading cost. This leaves us with following expenditure, each of which forms part of the regular normative business income: Salary Expenses 84,99,641/- Electricity Expenses 8,65,820/- Bank Guarantee 12,22,463/- Bank interest 1,36,138/- Bank Commission 44,364/- Shop Rent 24,81,696/- Vehicle Rent & Exp. 14,98,368/- Parivahan Shulk 17,150/- Miscellaneous Exp. 2,67,941 (total 1,50,33,581) The assessee has, for each expenditure, not explained, at any stage, the non- maintenance of the primary vouchers evidencing the expenditure; in fact, has not even produced the books of account. The AO was therefore constrained to estimate the allowance and, thus, disallowance as well. That is, though he has apparently disallowed the expenditure in the absence of substantiation, the same has not been expenditure-wise, but on estimated basis. While change of method from GP to NP ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 12 | P a g e by CIT(A) cannot be countenanced, and we disapprove the same, i.e., in principle, we find the same as justified under the circumstances in respect of disallowance of expenditure. The expenditure claimed by the assessee, subject to the disallowance for want of evidence, is thus Rs. 139.84 lacs (i.e., other than the expenditure on bank guarantee per se, at Rs. 10.50 lacs, which shall entail no disallowance for the reason that the same, though incurred in March 2002, pertains to the current year, the first year of the assessee‟s business.), which works out to 5 % of sales (as estimated). A twenty per cent 20% disallowance is, in our view, appropriate, which works to Rs. 27.97 lacs. 4.7 The NP, subject to allowance of interest to partners thus works out to Rs. 93.51 lacs. The same cannot, however, exceed Rs.66.73 lacs inasmuch as the Revenue‟s appeal stands dismissed u/s. 268A. As regards the allowance of interest to partners, the same stands disallowed by the AO in view of the non-satisfaction of the condition sec. 185 by the assessee. This aspect, though raised by the assessee in his appeal before him, has not been decided by the ld.CIT(A). The assessee has neither raised this issue in appeal before us (in its CO) nor moved the ld. CIT(A) u/s. 154, seeking adjudication in its respect. In absence of any fining by the first appellate authority, that by the assessing authority shall prevail, the appellate authority has no power to review its order, rectification of which also cannot be applied for at this stage. Shri Seth, on being questioned the matter, would submit that inasmuch as assessee is definitely aggrieved by the said non- adjudication by the ld.CIT(A), the matter be restored to his file for the same, also taking us through the assessee‟s written submissions before him in the matter. We consider it appropriate under the circumstances to do so, admit the assessee‟s said plea under rule 11 (Appellate Tribunal) Rules to which no objection either for admission or restoration was very fairly raised by Shri Sharma, ld. Sr. DR. Subject therefore to the adjudication qua allowance of income to partners u/s. 36(1)(iii) r/w s. 40(v), and subject to further satisfaction of section 185, we confirm the ITA No. 286/JAB/2006 (A.Y.2003-04) C.O.No. 09/JAB/2007 ITO v. Kartik Jaiswal 13 | P a g e assessee‟s income at Rs. 66.73 lacs. The ld. CIT(A) shall adjudicate qua partners‟ interest in accordance with law per a separate order after duly hearing both the sides. Needless to add an allowance by the ld. CIT(A) shall cause an addition in the hands of the individual partners and vice-verse, both the parties are at liberty to contest the adjudication by the CIT(A), even as that by the Revenue shall be subject to s. 268A. 5. In the result, Revenue‟s appeal is dismissed as not maintainable and the assessee‟s CO is partly allowed. Order pronounced in open Court on July 01, 2022 Sd/- Sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 01/07/2022 vr/- Copy to: 1. The Appellant: ITO, Ward-1(2), Jabalpur. 2. The Respondent: Kartik Jaiswal, LR of late Shri Santosh Jaiswal, Excise Contractor, Ranjhi, Jabalpur (MP) through L/H Kartik Jaiswal 3. The CI T-1, Jabalpur (MP) 4. The CI T( Appeals)-1, Jabalpur (MP) 5. The Sr . DR, I TAT, Jabalpur 6. Guard File. By order (VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Jabalpur.