ITO, SRIGANGANAGAR V. Sh. Gouri Shankar Singal, SRIGANGANAGAR

ITA 319/JODH/2013

• Counselvise Citation: 31923314 RSA 2013
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Rejection of books of accounts; Business income; Onus to prove
• Section: 133(6); 145; 68

Judgement Text

[1] IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N. K. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 319/JODH/2013 ASSESSMENT YEAR:2009-10 THE I.T.O. VS. SHRI GOURI SHANKAR SINGHAL WARD-1, PROP. M/S AMIT DISTRIBUTORS SRIGANGANAGAR. 64, NEW CLOTH MARKET SRIGANGANAGAR. PAN: AETPS0047N (APPELLANT) (RESPONDENT) C.O. NO.28/JODH/2013 (IN I.T.A. NO. 319/JODH/2013) ASSESSMENT YEAR:2009-10 SHRI GOURI SHANKAR SINGHAL VS. THE I.T.O. PROP. M/S AMIT DISTRIBUTORS WARD-1, 64, NEW CLOTH MARKET SRIGANGANAGAR. SRIGANGANAGAR. PAN: AETPS0047N (OBJECTOR) (RESPONDENT) REVENUE BY : SHRI N.A. JOSHI, D.R. ASSESSEE BY : SHRI SURESH OJHA. DATE OF HEARING : 03/12/2013 DATE OF PRONOUNCEMENT : 13/12/2013 O R D E R PER N.K.SAINI, A.M THE APPEAL OF THE DEPARTMENT AND THE CROSS OBJECTI ON FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28.02 .2013 OF LEARNED CIT(A)- BIKANER. [2] 2. FIRST WE WILL DEAL WITH CROSS OBJECTION OF THE A SSESSEE IN C.O. NO. 28/JODH/2013. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS CROSS OBJECTION. 1. THAT THE COMMISSIONER OF INCOME TAX SHOULD HAVE ACCEPTED THE RETURN OF INCOME LOOKING TO THE FACTS AND CIRCUMS TANCES OF THE CASES. 2. THAT THE REJECTION OF BOOKS OF ACCOUNTS U/S 145 IS ILLEGAL AND AGAINST THE LAW. 3. THE INCOME TAX OFFICER AS WELL AS THE COMMISSIO NER OF INCOME TAX (APPEALS) SHOULD HAVE ACCEPTED DIFFERENCE IN THE BALANCE AS DECLARED BY THE ASSESSEE. 4. THAT THE EXPENSES SUSTAINED BY THE COMMISSIONER OF INCOME TAX (APPEALS) OUT OF RS. 19,353/- IS ILLEGAL AND AGAINST THE LAW. 5. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) SH OULD HAVE ACCEPTED THE HOUSE HOLD EXPENSES DECLARED BY THE ASSESSEE, THE ADDITION SUSTAINED BY THE COMMISSIONER OF INC OME TAX (APPEALS) UNDER HOUSE HOLD EXPENSES IS ILLEGAL AN D AGAINST THE LAW LOOKING TO THE ORDER OF HON'BLE TRIBUNAL IN C ASE OF PYARELAL. 6. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) RI GHTLY DELETED THE ADDITION MADE BY THE INCOME TAX OFFICER ARBIT RARILY AND AGAINST THE LAW. 3. AT THE FIRST INSTANCE, THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED GROUND NO. 4 RELATING TO THE SUSTENANCE OF ADDITION OF RS. 19,353/- OUT OF THE EXPENSES. 4. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THA T THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE D THAT THE ASSESSEE HAD SHOWN FOLLOWING EXPENSES IN THE PROFIT AND LOSS ACC OUNT:- 1. TELEPHONE EXPENSE RS. 11,552/- 2. SHOP EXPENSE RS. 08,613/- 3. REFRESHMENT EXPENSE RS. 26,085/- 4. PETROL EXPENSE RS. 73,439/- 5. TRAVELLING EXPENSE RS. 57,922/- 6. CAR WASH RS. 15,922/- TOTAL EXPENSES RS. 1,93,533/- [3] THE ASSESSING OFFICER DISALLOWED 20% OF THE ABOVE EXPENSES BY GIVING A GENERAL OBSERVATION THAT THE SAID EXPENSES WERE N OT FULLY VOUCHED AND PERSONAL USE ON ACCOUNT OF TELEPHONE AND TRAVELLING COULD NOT BE RULED OUT. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE DISALLOWANCE WAS MADE BY GIVING A GENERAL OBSERVATION AND WITHOUT POINTING OUT ANY SPECIFIC DEFECT IN THE EXPENSES CLAIMED. IT WAS ALSO STATED THAT THE DISALLOWANCE WAS ON HIGHER SID E. 6. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, RESTRICTED THE DISALLOWANCE TO 10% OF THE EXPENSES . NOW THE ASSESSEE HAS FILED THE CROSS OBJECTION. 7. DURING THE COURSE OF HEARING, THE LEARNED COUNSE L FOR THE ASSESSEE SUBMITTED THAT ALL THE EXPENSES WERE INCURRED FOR T HE BUSINESS PURPOSES AND NO SPECIFIC DEFECT WAS POINTED OUT BY THE ASSESSING OFFICER, THEREFORE THE DISALLOWANCES SUSTAINED BY THE LD. CIT(A) WAS NOT J USTIFIED. 8. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. SUPPO RTED THE ORDER OF THE ASSESSING OFFICER. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE IN STANT CASE, IT IS NOTICED THAT THE ASSESSING OFFICER WHILE MAKING THE DISALLOWANCE @ 20% OF THE EXPENSES CLAIMED HAD NOT GIVEN ANY SPECIFIC INSTANCE WHERE T HE EXPENSES WERE INCURRED FOR PERSONAL PURPOSES. THE LD. CIT(A) WHIL E RESTRICTING THE DISALLOWANCE @ 10% HAD ALSO NOT GIVEN ANY COGENT RE ASON. AT THE SAME TIME, IN SUCH TYPE OF CASES, THE PERSONAL USE ON AC COUNT OF TELEPHONE AND [4] VEHICLE, CANNOT BE RULED OUT. IN OUR OPINION, THE D ISALLOWANCE SUSTAINED BY THE LD. CIT(A) IS ON HIGHER SIDE. WE, THEREFORE, TO CO VER THE LEAKAGE IF ANY AND TO MEET THE ENDS OF JUSTICE, RESTRICT THE DISALLOWANCE TO RS. 5,000/-. 10. ANOTHER ISSUE RAISED BY THE ASSESSEE VIDE GROUN D NO. 5 RELATES TO SUSTENANCE OF ADDITION ON ACCOUNT OF HOUSE HOLD EXP ENSES. 11. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE TH AT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE D THAT THE ASSESSEE HAD SHOWN RS. 87,000/- ON ACCOUNT OF HOUSE HOLD EXPENSE S. HE ASKED THE ASSESSEE TO EXPLAIN REASONABLENESS OF THOSE EXPENSE S. THE ASSESSEE SUBMITTED THAT A SUM OF RS. 1,12,000/- WAS WITHDRAW N ON ACCOUNT OF HOUSE HOLD EXPENSES OUT OF WHICH RS. 25,000/- HAD BEEN PA ID FOR EDUCATION AND THE FAMILY OF ASSESSEE CONSISTS OF HIMSELF, WIFE AND TW O CHILDREN, THEREFORE, CONSIDERING THE SIZE OF FAMILY AND SIMPLE LIVING ST ANDARD, HOUSE HOLD EXPENSES WERE JUSTIFIED. HOWEVER, THE ASSESSING OFF ICER WAS NOT SATISFIED FROM THE EXPLANATION OF THE ASSESSEE AND ESTIMATED THE HOUSE HOLD EXPENSES @ RS. 12,000/- PER MONTH TOTALLING TO RS. 1,44,000/ - AND PROPOSED TO MAKE ADDITION OF RS. 57,000/-. HOWEVER, NO ADDITION WAS MADE BY STATING THAT IT IS TO BE TELESCOPED WITH THE TRADING ADDITION. 12. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A), WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. NOW THE ASSESSEE HAS FILED THE CROSS OBJECTION. [5] 13. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND IN HIS RIVAL SUBMI SSIONS, THE LEARNED D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 14. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE EXPLAINED THA T A SUM OF RS. 1,12,000/- WAS WITHDRAWN FOR HOUSE HOLD EXPENSES, HOWEVER, THE ASSESSING OFFICER CONSIDERED ONLY RS. 87,000/- FOR THE PURPOSES OF HO USE HOLD EXPENSES AND EXCLUDED THE EXPENSES OF RS. 25,000./-, WHICH WERE INCURRED BY THE ASSESSEE FOR THE EDUCATION OF THE CHILDREN. IN TH E PRESENT CASE, THE ASSESSING OFFICER WHILE ESTIMATING MONTHLY EXPENSES @ RS. 12,000/- HAS NOT GIVEN ANY BASIS, IN OUR OPINION, THE WITHDRAWAL OF RS. 1,12,000/- SHOWN BY THE ASSESSEE FOR THE PURPOSES OF HOUSE HOLD EXPENSES, A PPEARS TO BE REASONABLE CONSIDERING THE SIZE OF THE FAMILY. MOREOVER, THE C ONTENTION THAT THE ASSESSEE IS LIVING A SIMPLE LIFE IS NOT REBUTTED. WE, THEREF ORE, ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE A DDITION ON ACCOUNT OF HOUSE HOLD EXPENSES AND THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER. ACCORDINGLY THE ISSUE AGITAT ED BY THE ASSESSEE IS DECIDED IN HIS FAVOUR. NO OTHER GROUND RAISED IN TH E CROSS OBJECTION WAS ARGUED BY EITHER OF THE PARTY. 15. NOW WE WILL DEAL WITH THE APPEAL OF THE DEPARTM ENT IN I.T.A. NO. 319/JODH/2013, FOLLOWING GROUNDS HAVE BEEN RAISED:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN:- [6] I) DELETING ADDITION OF RS. 17,96,448/- MADE ON ACC OUNT OF G.P. RATE. II) DELETING ADDITION OF RS. 1,31,000/- MADE U/S 68 OF THE I.T. ACT, 1961. III) DELETING ADDITION OF RS. 24,14,889/- MADE U/S 68 OF THE I.T. ACT, 1961. IV) DELETING ADDITION OF RS. 19,353/- MADE ON ACCOU NT OF MISC. EXPENSES. 16. VIDE GROUND NO. (I), GRIEVANCE OF THE DEPARTMEN T RELATES TO DELETION OF ADDITION OF RS. 17,96,448 MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF G.P. RATE. 17. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT T HE ASSESSEE FILED THE RETURN OF INCOME ON 29/9/2009 DECLARING AN INCOME OF RS. 1 ,49,120/-. LATER ON THE CASE WAS SELECTED FOR SCRUTINY. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER POINTED OUT THAT THE GROSS PROFIT DECLARED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION WA S ON LOWER SIDE, IN COMPARISON TO THE EARLIER YEARS, THE DETAIL WAS AS UNDER:- A.Y. TOTAL SALES GROSS PROFIT G.P. RATE IN % 2007-08 1,07,85,602 775850 7.19% 2008-09 1,55,00,227 962520 6.21% 2009-10 1,79,10,760 1071815 5.98% 18. THE ASSESSING OFFICER REJECTED THE BOOKS OF ACC OUNT BY OBSERVING AS UNDER:- 1. THE ASSESSEE HAS NOT PRODUCED THE OPENING STOC K AND CLOSING STOCK INVENTORIES. 2. THERE IS DIFFERENCE IN THE BALANCES OF THE PART IES FROM WHOM THE GOODS WERE PURCHASED BY THE ASSESSEE. [7] 3. CONFIRMATION OF SOME OF THE PARTIES, FROM WHOM THE ASSESSEE HAS PURCHASED THE GOODS COULD NOT BE RECEIVED. 4. THERE IS DIFFERENCE IN THE QUALITY OF THE GOODS MENTIONED IN THE PURCHASE BILLS AND SALES BILLS. THE ASSESSING OFFICER APPLIED THE G.P. RATE OF 17 .22%, WHICH WAS DECLARED BY A COMPARABLE CASE OF M/S TARSEM KUMAR & COMPANY, SRIGANGANAGAR. 19. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) AND SUBMITTED THAT HE HAD MAINTAINED COMPLETE QUANTITAT IVE TALLY OF OPENING AND CLOSING STOCK, COPY OF THE SAME WAS FURNISHED TO T HE LD. CIT(A). AS REGARDS TO THE DIFFERENCE IN THE BALANCE OF THE PARTIES FRO M WHOM GOODS WERE PURCHASED, IT WAS SUBMITTED THAT AT THE TIME OF ASS ESSMENT PROCEEDINGS, COPIES OF THE CONFIRMATION COULD NOT BE RECEIVED BY THE ASSESSEE AND TIME WAS SOUGHT FOR FILING THE SAME. HOWEVER, THE ASSESS ING OFFICER PASSED THE ASSESSMENT ORDER WITHOUT PROVIDING THE OPPORTUNITY EVEN WHEN THE CASE WAS NOT GETTING TIME BARRED. THE ASSESSEE FURNISHED CON FIRMATION BEFORE THE LD. CIT(A) AND EXPLAINED THAT THE DIFFERENCE WAS DUE T O DIFFERENT METHOD OF ACCOUNTING OF DISCOUNTS AND THAT THE PARTIES MADE T HE ENTRIES OF DISCOUNT AT THE TIME OF ISSUANCE OF BILLS WHEREAS THE ASSESSEE ENTERED THE DISCOUNT AT THE TIME OF PAYMENT. THE LD. CIT(A), HOWEVER, CONFIRMED THE ACTION OF THE ASSESSING OFFICER FOR APPLICATION OF THE PROVISIONS OF SECTION 145(3) OF THE ACT FOR REJECTING THE BOOKS OF ACCOUNT. 20. AS REGARDS TO THE APPLICATION OF G.P. RATE ON THE BASIS OF THE CASE OF M/S TARSEM KUMAR & COMPANY, THE SUBMISSIONS OF THE ASSESSEE WAS THAT [8] THE SAID CASE WAS NOT COMPARABLE. IT WAS FURTHER ST ATED THAT THE ASSESSEE ASKED THE ASSESSING OFFICER TO PROVIDE THE DETAILS REGARDING SALES, PRODUCTS SOLD AND THE EXPENSES INCURRED ON THE SALES BY THE SAID PARTY, BUT THOSE WERE NOT PROVIDED. THE ASSESSEE ALSO SUBMITTED BEFORE TH E LD. CIT(A) AS UNDER:- EVEN WITHOUT THE PROPER INFORMATION ABOUT THE CASE OF M/S TARSEM KUMAR & COMPANY, THE ASSESSEE HAS FILED THE DIFFERE NCE OF FACTS BY HIS LETTER DATED 07.06.2011. COPY OF THE LETTER IS ATTA CHED HEREWITH. IN THE LETTER, THE ASSESSEE HAS RAISED THE FOLLOWING OBJEC TIONS:- 1. TARSEM KUMAR & COMPANY IS THE AUTHORISED DISTRIB UTOR OF M/S SIYARAM MILLS FOR SRI GANGANAGAR AND HANUMANGARH DI ST. WHEREAS THE ASSESSEE IS HAVING THE DEALING WITHIN THE SRI G ANGANAGAR DISTT. ONLY. 2. TARSEM KUMAR & COMPANY IS DEALING IN BRANDED GOO DS AND HAVE NO COMPETITOR IN BOTH THE DISTRICTS WHEREAS THE ASS ESSEE IS DEALING IN THE GENERAL GOODS AND HAVE A LOT OF COMPETITOR. 3. THE ASSESSEE IS PURELY DEALING ON WHOLESALE BASI S WHEREAS TARSEM KUMAR & COMPANY IS DEALING IN WHOLESALE AS W ELL AS RETAILS BASIS. 4. THE STOCK RATIO OF TARSEM KUMAR & COMPANY IS 41. 42% AS AGAINST 21.61% DECLARED BY THE ASSESSEE WHICH MEAN THAT THE ROTATION OF THE ASSESSEE IS DOUBLE THEN THE ROTATION OF M/S TAR SEM KUMAR & COMPANY, WHICH IS POSSIBLE ONLY BY REDUCING THE MAR GIN. 5. SHOP OF THE ASSESSEE IS SMALL WHEREAS THE SHOP OF M/S TARSEM KUMAR & COMPANY IS THREE TIME BIGGER. 6. IN SPITE OF SUCH A HEAVY INFRASTRUCTURE AND STOC K THE SALES OF M/S TARSEM KUMAR & COMPANY IS NOT FAR MORE EXCESSIVE TH EN THE SALES OF THE ASSESSEE. 7. HIGH GROSS PROFIT IS ADJUSTED BY DEBITING THE HE AVY EXPENDITURE IN THE PROFIT AND LOSS ACCOUNT. [9] FROM THE ABOVE YOUR GOODSELF WILL PLEASE FIND THA T THE PROPER INFORMATIONS ABOUT THE COMPARABLE CASE WERE NOT SUP PLIED BY THE A.O. BUT ON THE GENERAL KNOWLEDGE AND APPARENT FACTS THE ASSESSEE HAS TRIED TO EXPLAIN THE FACT THAT THE RESULTS OF M/S T ARSEM KUMAR & COMPANY ARE NOT THE COMPARABLE WITH THE CASE OF THE ASSESSEE. MERE FORMALITY OF AFFORDING AN OPPORTUNITY IS NOT JUSTIFIED IN LAW. SIR HERE THE QUESTION MAY ARISE THAT THE OPPORTUNIT Y WAS ALLOWED TO THE ASSESSEE BUT IN FACT MERE OPPORTUNITY IS NOT SUFFIC IENT BUT IT MUST BE A CLEAR OPPORTUNITY TO DEMONSTRATE AGAINST THE PROPOS ED ACTION. AS CLEAR FROM THE FACT THAT EVEN AFTER THE SPECIFIC DEMAND T HE LEARNED A.O. HAS SUPPLIED THE FACTS ONLY TO THE EXTENT WHICH GOES IN HIS FAVOUR AND SO IT CANNOT BE SAID THAT THE ACTION OF THE A.O. IS COVER ED UNDER THE DEFINITION OF REASONABLE OPPORTUNITY. IN THE APPEAL OF R.B. SHREERAM DURGA PRASAD & FATEHCHAND NURSING DASS VS. SETTLEME NT COMMISSION REPORTED IN (1989) 176 ITR 169, HON'BLE SUPREME COU RT HAVE HELD AS UNDER:- MERE OPPORTUNITY TO MAKE A SUBMISSION IS NOT ENOU GH, BUT IT SHOULD BE A CLEAR OPPORTUNITY SO THAT THE ASSESSEE CAN MAKE AN EFFECTIVE REPRESENTATION AGAINST THE PROPOSED ACTIO N. IN VIEW OF THE ABOVE IT IS REQUESTED THAT THE LEAR NED A.O. MAY PLEASE BE DIRECTED TO SUPPLY THE DESIRED INFORMATIONS TO T HE ASSESSEE SO THAT THE NECESSARY REPLY MAY BE FILED. NON PROVIDING THE PROPER OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HIS CASE IS NOT ACCORDIN G TO THE SENTIMENTS OF THE LAW AND THE ADDITION MADE ON THE BASIS OF ON E SIDED VIEW MAY PLEASE BE CANCELLED. HERE I WOULD LIKE TO BRING TO YOUR KIND NOTICE TH AT TO JUSTIFY THE G.P. DECLARED THE ASSESSEE HAS FILED A CHART SHOWIN G THE PURCHASE AND SALE RATES OF SOME OF THE ITEMS AND ALSO PRODUCED T HE BOOKS OF ACCOUNTS WITH COMPLETE PURCHASE AND SALES BILLS TO SUBSTANTIATE THE G.P. ON THE SAME. THE COPY OF THE CHART FILED BEFOR E THE A.O. IS ATTACHED HEREWITH FOR YOUR READY REFERENCE AND RECO RDS. FROM THE CHART, YOU WILL PLEASE OBSERVE THAT AVERAGE G.P. IN THESE ITEMS IS 5.84%. ALL THE ABOVE SUBMISSIONS OF THE ASSESSEE WERE RE JECTED BY THE LEARNED A.O. ON SOME STRANGE OBSERVATIONS. THE FIRS T OBSERVATION IS [10] THAT THE G.P. DECLARED BY THE TARSEM KUMAR & COMPAN Y IS AFTER ADJUSTING THE FREIGHT & CARRIAGE WHEREAS THE ASSESS EE HAS DEBITED THE FREIGHT & CARRIAGE IN THE PROFIT AND LOSS ACCOUNT. SIR THIS FACT ONLY NARRATES THE DIFFERENCE IN THE G.P. ONLY AND NOTHIN G ELSE. G.P. IS ALREADY UNDER DISPUTE ON THE FACTS OF BOTH THE CASE S AND SO THIS OBSERVATION HAVE NO MEANING. SECONDLY THE LEARNED A.O. HAVE OBSERVED THAT M/S TARSEM KUMAR & COMPANY HAVE PRODUCED THE INVENTORY OF OPEN ING AND CLOSING STOCK WHEREAS THE ASSESSEE HAS NOT PRODUCED ANY SUC H RECORD. IN THIS REGARD, I WOULD LIKE TO DRAW YOUR KIND ATTENTION TH AT FROM THE VERY BEGINNING THE ASSESSEE WAS INFORMING THE A.O. ABOUT THE AVAILABILITY OF THE OPENING AND CLOSING STOCK INVENTORY BUT THE LEA RNED A.O. WAS CONTINUOUSLY INSISTING FOR THE DAY TO DAY STOCK REG ISTER WHICH IS ALSO NOT PRODUCED BY M/S TARSEM KUMAR & COMPANY. COPY OF THE OPENING AND CLOSING STOCK INVENTORY ARE ATTACHED HEREWITH FOR Y OUR READY REFERENCE AND RECORDS. HAD THE EARNED A.O. HAVE EVER ASKED, T HE SAME COULD HAVE BEEN FILED THERE. THIRD REASONS GIVEN BY THE LEARNED A.O. ITSELF GO ES AGAINST THE CASE OF THE A.O. LEARNED A.O. HAS OBSERVED THAT M/S TARSEM KUMAR & COMPANY IS PAYING THE INTEREST AMOUNTING TO RS. 195 2982/- AND WORKING WITH THE BORROWED FUNDS WHEREAS THE ASSESSE E IS WORKING WITH HIS OWN FUNDS. SIR IT IS BUT NATURAL THAT THE PERSO N WHO IS DOING THE BUSINESS WITH BORROWED FUNDS WILL WORK ONLY IN THE HIGH G.P. GOODS AND NOT LOW G.P. GOODS AS THE ASSESSEE IS DOING. FOURTH OBJECTION OF THE A.O. IS THAT THE TURNOVER OF THE ASSESSEE AND M/S TARSEM KUMAR & COMPANY ARE ALMOST SAME AND THE SHOPS OF BOTH THE PARTIES ARE IN THE SAME MARKET AND HENCE T HE PLEA OF COMPETITION CANNOT BE ACCEPTED. IN THIS REGARD, IT IS STATED THAT THIS FACT ALSO GOES AGAINST THE A.O. M/S TARSEM KUMAR & COMPA NY IS AUTHORISED DISTRIBUTOR OF M/S SIYARAM MILLS, A BIG BRAND, FOR TWO DISTRICTS EVEN THEN THEY COULD MANAGE TO SELL THE GOODS EQUAL TO THE ASSESSEE WHEREAS THE ASSESSEE IS DEALING IN THE GENERAL GOOD S THAT ALSO IN THE OPEN MARKET. YOU WILL PLEASE APPRECIATE THAT THE PO LICY OF THE ASSESSEE IS TO INCREASE THE TURNOVER BY CHARGING THE LOWER M ARGIN. [11] ONE MORE OBSERVATION IS GIVEN BY THE A.O. ON PAGE 6 OF THE ASSESSMENT ORDER IN WHICH THE A.O. HAS WRITTEN THAT FOR EARNING THE MORE PROFIT THE ASSESSEE HAS INTRODUCED BOGUS CREDI TORS AND UNSECURED LOANS. IN THIS REGARD, IT IS STATED THAT FROM THE ABOVE IT APPEARS THAT THE LEARNED A.O. TRYING TO STATE THAT ACTUALLY THE PROFIT OF THE ASSESSEE IS LOW BUT TO INCREASE THE SAME THE AS SESSEE HAS INTRODUCED BOGUS CREDITORS AND UNSECURED LOANS. IF IT IS TRUE THEN AT ONE HAND THE A.O. IS SAYING THAT THE ASSESSEE IS DECLAR ING LOWER PROFIT AND ON THE OTHER HAND SAYING THAT THE PROFIT IS INCREAS ED BY UNFAIR MEANS. IN VIEW OF THE ABOVE, IT IS REQUESTED THAT THE A DDITION MADE BY THE A.O. BY APPLYING THE G.P. RATE OF 17.22% ON THE BASIS OF THE COMPARABLE CASE IS NOT BASED PROPERLY. THE ASSESSEE , BY ITEM WISE DETAILS HAVE SHOWN THAT THE G.P. IN THE GOODS SOLD BY HIM ARE NEAR TO THE G.P. DECLARED WHEREAS THE FACTS OF M/S TARSEM K UMAR & COMPANY ARE NOT COMPARABLE WITH THE CASE OF THE ASSESSEE. 21. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE, OBSERVED THAT THE COMPARABLE CASE QUOTED BY THE ASS ESSING OFFICER WAS NOT APPLICABLE IN THE CASE OF THE ASSESSEE AS THE FACTS WERE ALTOGETHER DIFFERENT IN ALL THE CASES. THE LD. CIT(A) POINTED OUT THAT AS P ER DECISION OF I.T.A.T. OF JODHPUR BENCH FOR DECIDING THE G.P., THE PAST HISTO RY OF THE ASSESSEE WAS ONLY THE RELEVANT FACTOR. THE LD. CIT(A) OBSERVED T HAT THE ASSESSEE HAD SHOWN G.P. RATE OF 6.21% IN THE ASSESSMENT YEAR 200 8-09 AND 7.10% IN THE ASSESSMENT YEAR 2007-08. HE, THEREFORE, WAS OF THE VIEW THAT THE APPLICATION OF G.P. RATE OF 7.19% WAS MORE REASONABLE LOOKING T O THE FACTS OF THE ASSESSEES CASE. ACCORDINGLY, HE DIRECTED THE ASSES SING OFFICER TO APPLY G.P. RATE OF 7.19%. NOW THE DEPARTMENT IS IN APPEAL. 22. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE, IT IS NOTICED THAT THE [12] ASSESSING OFFICER AFTER REJECTING THE BOOKS OF ACCO UNT, APPLIED G.P. RATE OF 17.22% ON THE BASIS OF CASE OF M/S TARSEM KUMAR & C OMPANY. THE ASSESSEE DISTINGUISHED THE FACTS OF HIS CASE WITH T HE CASE OF M/S TARSEM KUMAR & COMPANY, THEREFORE, AFTER REJECTING THE BOO KS OF ACCOUNT, THE G.P. RATE WAS TO BE APPLIED CONSIDERING THE PAST HISTORY OF THE ASSESSEE. IN THE PRESENT CASE, LD. CIT(A) DIRECTED THE ASSESSING OFF ICER TO APPLY THE G.P. RATE ON THE BASIS OF THE G.P. RATE OF IMMEDIATELY TWO AS SESSMENT YEARS AND THE MAXIMUM G.P. RATE I.E. 7.19% DECLARED BY THE ASSESS EE AND ACCEPTED BY THE DEPARTMENT IN THE ASSESSMENT YEAR 2007-08 WAS DIREC TED TO BE APPLIED. IN OUR OPINION, THE VIEW TAKEN BY THE LD. CIT(A) WAS JUSTIFIED, SO IT DOES NOT REQUIRE ANY INTERFERENCE ON OUR PART. 23. THE NEXT ISSUE VIDE GROUND NO. (II) RELATES TO DELETION OF ADDITION OF RS. 1,31,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. 24. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT T HE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICED THAT THE ASSESSEE WAS HAVING SQUARED UP ACCOUNT OF 10 PARTIES. HE MADE THE ADDIT ION OF RS. 1,31,000/- BY OBSERVING THAT THE ASSESSEE COULD NOT PROVE THE CRE DITWORTHINESS OF THOSE CREDITORS. 25. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT( A) AND SUBMITTED THAT THE CONFIRMATION OF ALL THE CREDITORS WERE FILED AN D THE STATEMENTS WERE ALSO RECORDED BY THE ASSESSING OFFICER EXCEPT IN ONE CAS E, THEREFORE, THE ASSESSEE DISCHARGED HIS BURDEN TO PROVE THE CREDITS . THE ASSESSEE ALSO STATED BEFORE THE LD. CIT(A) AS UNDER:- [13] BY FILING THE CONFIRMATIONS AND PRESENTING THE CRE DITORS FOR STATEMENT THE ASSESSEE HAS DISCHARGED HIS BURDEN AN D NOW IT WAS ON THE A.O. TO BRING SOME MATERIAL ON RECORD TO PROVE THAT THESE CREDITS ARE FROM SOME UNDISCLOSED SOURCE OF INCOME OF THE A SSESSEE. WITHOUT ESTABLISHING CONTRARY IT IS NOT PERMITTED IN LAW TO MAKE ADDITION U/S 68. THE VIEW OF THE ASSESSEE IS SUPPORTED BY THE JUDGME NT OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF KANHAIYALAL JAN GID VS. ACIT REPORTED IN (2008) 217 CTR 354 IN WHICH IT WAS HELD BY THE HON'BLE COURT THAT ASSESSEE HAVING FILED CONFIRMATION FROM THE CREDITOR AND HAVING PRODUCED THE CREDITOR BEFORE THE A.O. WHERE THE CREDITOR AFFIRMED ADVANCEMENT OF LOAN TO ASSESSEE, NO ADDITI ON U/S 68 COULD BE MADE IN THE HANDS OF ASSESSEE ON THE GROUND THAT TH E CREDITOR COULD NOT SATISFACTORILY EXPLAIN THE SOURCE OF LOAN. 26. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE DELETED THE IMPUGNED ADDITION BY OBSERVING THAT THE FACTS OF THE ASSESSEES CASE WERE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF KANHAIYALAL JANGID VS. ACIT DECIDED BY THE HON'BLE JURISDICTIONAL HIGH COU RT. ACCORDINGLY, THE ADDITION OF RS. 1,31,000/ WAS DELETED. NOW THE DEPA RTMENT IS IN APPEAL. 27. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND THE MATERIAL AVAILABLE ON RECORD, IT APPEARS THAT THE ASSESSEE N OT ONLY FILED THE CONFIRMATION FROM THE CASH CREDITORS, WHOSE ACCOUNT S WERE SQUARED UP BUT ALSO PRODUCED THEM BEFORE THE ASSESSING OFFICER WHO RECORDED THEIR STATEMENT. IN THE PRESENT CASE, THE ASSESSING OFFIC ER COULD NOT BRING ANY MATERIAL ON RECORD TO SUBSTANTIATE THAT THE CREDITS WERE FROM UNDISCLOSED INCOME OF THE ASSESSEE. THEREFORE, THE LD. CIT(A) W AS JUSTIFIED IN DELETING THE IMPUGNED ADDITION BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KANHAIYALA L JANGID VS. ACIT (SUPRA). [14] WE THEREFORE, DO NOT SEE ANY VALID GROUND TO INTERF ERE WITH THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE. 28. THE NEXT ISSUE VIDE NO. (III) RELATES TO DELETI ON OF ADDITION OF RS. 24,14,889/- MADE BY THE ASSESSING OFFICER. 29. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT T HE ASSESSING OFFICER MADE THE ADDITION U/S 68 OF THE ACT ON ACCOUNT OF TRADE CREDITORS IN THE NAME OF 8 PARTIES AMOUNTING TO RS. 24,44,973/-. THE SAID ADDI TION WAS MADE BY THE ASSESSING OFFICER BY OBSERVING THAT THE CONFIRMATIO N COULD NOT BE OBTAINED AS THE PARTIES COULD NOT BE TRACED. 30. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTE R TO THE LD. CIT(A) AND MADE THE FOLLOWING SUBMISSIONS:- THE FACT IS THAT THE ASSESSEE WAS PURCHASING THE G OODS FROM THESE PARTIES AND THERE WAS SOME AMOUNT STANDING TO THE CREDIT OF THESE PARTIES, IN THE BALANCE SHEET OF THE ASSESSEE . CREDITS WERE ON ACCOUNT OF PURCHASE OF GOODS ON CREDIT. OUT OF THES E 8 PARTIES, LEARNED A.O. HAS ISSUED NOTICE U/S 133(6) TO 5 PARTIES I.E. M/S KUBER FASHIONS, M/S UNIQUE FASHIONS, M/S RADHA KISHAN SILK MILLS, M /S RAJ SONS AND M/S RIYA CREATIONS. WHICH WERE RETURNED BACK BY THE POSTAL DEPARTMENT WITH THE REMARK THAT THE PARTY LEFT THE PLACE, ADDRESS IS NOT CORRECT OR THE ADDRESS IS NOT COMPLETE. LEARNED A.O . CONFRONTED THE ASSESSEE ABOUT THE NON DELIVERY OF THE NOTICES TO T HESE PARTIES. ASSESSEE VIDE HIS LETTER DATED 16.08.2011 THAT THE DEALING WITH THESE PARTIES ARE THROUGH THE COMMISSION AGENT M/S B.K. A GENCY, SURAT AND THE ASSESSEE HAS SEND THE LETTER TO THE AGENT FOR O BTAINING THE NEW ADDRESSES OF THESE PARTIES. LATER ON 14.10.2011 THE ASSESSEE HAS FILED THE NEW ADDRESSES OF THE 4 PARTIES AND SHOWN HIS IN ABILITY TO ABOUT THE ADDRESS OF THE 5 TH PARTY. AFTER THAT THE LEARNED A.O. HAS COMPLETED T HE ASSESSMENT ON 31.10.2011 BUT IN THE MEANWHILE NEITH ER ISSUED THE NEW NOTICE U/S 133(6) TO THESE PARTIES NOR ASKED TH E ASSESSEE TO FILE THE CONFIRMED COPIES OF ACCOUNT OF THESE PARTIES. H AD THE A.O. ASKED THE ASSESSEE TO FILE THE CONFIRMATIONS OF THESE PAR TIES, THE ASSESSEE [15] WOULD HAVE FILED THE SAME. ANY HOW IF YOUR GOODSELF THINK IT NECESSARY NOW THEN THE COPIES CAN BE SUPPLIED BY THE ASSESSEE . SIR, FIRST OF ALL LEARNED A.O. HAS ISSUED THE SHO W CAUSE FOR 5 PARTIES WHEREAS MADE ADDITIONS FOR 8 PARTIES. REGAR DING THE ADDITION OF THE REST THREE PARTIES A.O. HAS NOT GIVEN ANY REASO N IN THE ORDER. ALL THESE PARTIES ARE THE SUPPLIER OF THE ASSESSE E AND THE ASSESSEE IS PURCHASING THE GOODS FROM THESE PARTIES . THE ASSESSEE IS PURCHASING THE GOODS ON CREDIT BASIS. THE ASSESSEE IS MAINTAINING THE COMPLETE BILLS OF THE PURCHASES FROM THESE PARTIES AND THE SAME WERE PRODUCED BEFORE THE A.O. AND NOW CAN BE PRODUCED BE FORE YOUR GOODSELF. THE PAYMENTS WERE MADE THROUGH THE BANK. SIR SIMPLY BECAUSE THE DIRECT CONFIRMATION OF THE SE PARTIES COULD NOT BE OBTAINED DOES NOT EMPOWER THE A.O. TO TREAT THE AMOUNTS AS BOGUS. THE AMOUNTS STANDING TO THE CREDIT OF THESE PARTIES ARE ON ACCOUNT OF PURCHASE OF GOODS ON CREDIT BASIS AND TH E ASSESSEE HAS PRODUCED ALL THE BILLS OF PURCHASE ISSUED BY THESE PARTIES. THE ASSESSEE HAS MADE THE PAYMENT THROUGH THE BANK AND ALSO PRODUCED HIS BANK STATEMENTS. LEARNED A.O. HAS NO WHERE DENI ED THESE FACTS BUT SIMPLY ON THE OBSERVATION THAT THE ADDRESS COUL D NOT FOUND PROPER OR THE DIRECT COPIES OF THE CREDITORS COULD NOT OBT AINED, MADE THE ADDITION OF SUCH A HEAVY AMOUNT. HERE IT WOULD NOT BE OUT OF PLACE TO MENTION THAT THE LEARNED A.O. HAD MADE THE ADDITION BY INVOKING THE PROVISIO NS OF SECTION 68. SECTION 68 SAYS THAT WHERE ANY AMOUNT FOUND CREDITE D IN THE BOOKS OF ASSESSEE ONLY THEN THE PROVISIONS OF SECTION 68 CAN BE INVOKED. IN THE CASE OF THE ASSESSEE THE CREDIT WAS ON ACCOUNT OF G OODS PURCHASED ON CREDIT. THE PROVISIONS OF SECTION 68 ARE NOT APPLIC ABLE IN CASE OF CREDIT PURCHASES. THE POINT OF VIEW OF THE ASSESSEE IS SUP PORTED BY THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE APPEAL OF CIT VS. PANCHAM DASS JAIN REPORTED IN (2006) 205 CTR 444 IN WHICH THE HON'BLE COURT HAVE HELD THAT PROVISIONS OF SECTION 68 ARE NOT ATTRACTED TO AMOUNTS REPRESENTING PURCHASES MADE ON CREDIT. I T WAS OBSERVED: THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING OF FACT BASED ON APPRECIATION OF MATERIAL AND EVIDENCE ON RECORD THA T THE A.O. HAD ACCEPTED THE PURCHASES, SALES AS ALSO THE TRADING R ESULT DISCLOSED BY [16] THE ASSESSEE. IT HAD RECORDED A FINDING THAT THE TW O AMOUNTS REPRESENTED THE PURCHASES MADE BY THE ASSESSEE ON C REDIT AND, THEREFORE, THE PROVISIONS OF SECTION 68 COULD NOT B E ATTRACTED IN THE PRESENT CASE. THE VIEW TAKEN BY THE TRIBUNAL ON THI S ISSUE IS SUSTAINABLE INASMUCH AS, ON THE BASIS OF THE FINDIN GS RECORDED BY IT THAT THESE TWO AMOUNTS REPRESENTED PURCHASES MADE B Y THE ASSESSEE ON CREDIT AND THE PURCHASES AND SALES HAVING BEEN A CCEPTED BY THE DEPARTMENT, THE QUESTION OF ADDITION OF THE SAID TW O AMOUNTS U/S 68 DID NOT ARISE INASMUCH AS THE PROVISIONS OF SECTION 68 WOULD NOT BE ATTRACTED ON THE PURCHASES MADE ON CREDIT. 31. THE LD. CIT(A) AFTER CONSIDERING THIS SUBMISSIO N OF THE ASSESSEE THAT PROPER OPPORTUNITY WAS NOT PROVIDED, ASKED THE ASSE SSEE WHETHER, THE CONFIRMED COPIES OF ACCOUNTS FROM THE BOOKS OF THOS E PARTIES COULD BE PROVIDED AT THIS STAGE. IN RESPONSE TO THE SAME, TH E ASSESSEE FILED THE COPIES OF ACCOUNTS FROM ALL THE PARTIES, WHICH REVEALED TH AT THERE WERE SLIGHT DIFFERENCE DUE TO DIFFERENT SYSTEM OF ACCOUNTING OF DISCOUNTS ADOPTED BY THE ASSESSEE AND THE PARTIES. 32. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, OBSERVED THAT THE ADDITION OF TOTAL AMOUNT OUTSTAND ING TO THE CREDIT OF ALL THE PARTIES COULD NOT BE ADDED BECAUSE THE ASSESSEE WAS PURCHASING THE GOODS FROM THOSE PARTIES ON CREDIT BASIS AND SENDING THE PAYMENT THROUGH BANKING CHANNELS, SO IT COULD NOT BE SAID THAT THOSE PARTIE S WERE NOT TRACEABLE OR THE TOTAL AMOUNTS SHOWN IN THE NAME OF THOSE PARTIES W ERE BOGUS. HE FURTHER OBSERVED THAT THE ASSESSING OFFICER HAD NO WHERE ES TABLISHED THAT THOSE WERE THE BOGUS PARTIES OR THE AMOUNT SHOWN IN THEIR NAMES, WERE BOGUS. THE LD. CIT(A) WAS OF THE VIEW THAT THE PROVISIONS OF SECTION 68 OF THE ACT WERE NOT ATTRACTED TO THE AMOUNTS REPRESENTING PURC HASES MADE ON CREDIT. [17] RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. PANCHAM DASS JAIN REPORTED IN (2006) 205 CTR 444. AS REGARDS TO THE DIFFERENCE IN THE BALANCES, THE LD. CIT(A) WAS OF THE VIEW THAT THE ASSESSEE BY SHOWING THE HIGHER CREDIT BALANCES HAD ALSO INFLATED THE PURCHASES WHICH RESULTED IN THE REDUCTION OF PROFIT . LD. CIT(A) POINTED OUT THAT THERE WAS NO DIFFERENCE IN THE BALANCES OF THE 5 PA RTIES NAMELY M/S KUBER FASHIONS, M/S RAJ SONS, M/S RIYA CREATIONS, M/S RAD HA KISHAN FABRICS AND M/S SIDHI VINAYAK. HE ALSO POINTED OUT THAT THE DIF FERENCES WERE IN THE ACCOUNTS OF THREE PARTIES AS PER FOLLOWING DETAILS: - M/S UNIQUE FASHIONS 922739-893755 = 28984/- M/S NEHAL SILK MILLS 226657-226757 = 100/- M/S SHIV SHAKTI TEXTILES 174114-173114 = 1000/- 33. THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER T O RESTRICT THE ADDITION ON ACCOUNT OF THE ABOVE SAID DIFFERENCES AND THE REMAI NING ADDITION MADE BY THE ASSESSING OFFICER BY INVOKING PROVISIONS OF SECTION 68 OF THE ACT WAS DELETED. NOW THE DEPARTMENT IS IN APPEAL. 34. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PR ESENT CASE, IT APPEARS THAT THE AMOUNT OF OUTSTANDING IN THE NAME OF TRADE CRED ITORS WAS ADDED BY THE ASSESSING OFFICER IN SPITE OF THE FACT THAT THE PUR CHASES MADE FROM THOSE PARTIES WERE ACCEPTED AND EVEN THE PAYMENTS MADE TH ROUGH BANKING CHANNEL WERE NOT DOUBTED, THEREFORE, IT CANNOT BE SAID THAT THE TRADE CREDITORS WERE NOT TRACEABLE BECAUSE THE PAYMENTS WERE MADE THROUG H BANKING CHANNEL TO [18] THOSE PARTIES, WHICH HAD BEEN ACCEPTED. IN THE PRES ENT CASE, IT IS NOTICED THAT THE ASSESSEE WAS MAKING THE PURCHASES ON CREDIT BAS IS AND THE PAYMENTS WERE MADE TO THE CREDITORS THROUGH BANKING CHANNEL. IT IS ALSO NOT THE CASE OF THE ASSESSING OFFICER THAT THERE WAS CESSATION OF T HE LIABILITIES OR THOSE LIABILITIES WERE BOGUS, THEREFORE WHEN THE ASSESSIN G OFFICER ACCEPTED THE PURCHASES FROM THE CREDITORS THEN THERE WAS NO REAS ON TO DOUBT THE CREDIT BALANCES. IN THE PRESENT CASE, WHEREVER DIFFERENCE WAS THERE IN THE ACCOUNTS OF THE ASSESSEE VIS A VIS COPY OF ACCOUNT FURNISHED BY THE CREDITORS, LD. CIT(A) HAS SUSTAINED THE ADDITION, WE, THEREFORE, D O NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENTAL APPEAL. 35. THE LAST ISSUE VIDE GROUND NO. (IV) RELATES TO DELETION OF ADDITION OF RS. 19,353/- MADE BY THE ASSESSING OFFICER ON ACCOUNT O F MISC. EXPENSES. THIS ISSUE, WE HAVE ALREADY ADJUDICATED WHILE DECIDING T HE CROSS OBJECTION OF THE ASSESSEE WHEREIN A SIMILAR ISSUE WAS RAISED VIDE GR OUND NO. 4 AND A PART RELIEF HAS BEEN ALLOWED TO THE ASSESSEE, THEREFORE, WE DO NOT SEE ANY MERIT IN THIS GROUND OF THE DEPARTMENTAL APPEAL. 36. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 13/12/2013) . SD/- SD/- (HARI OM MARATHA) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED: 13/12/2013 [19] *RANJAN COPY FORWARDED TO: 1. APPELLANT. 2. RESPONDENT 3. CIT(A) 4. CIT 5. D.R. ASSISTANT REGISTRAR JODHPUR