The ITO, Ahmedabad Ward-3(1), Ahmedabad V. M/s. B.R. Metal Industries, Ahmedabad

ITA 445/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8841 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-03-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 31-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: S N DIVETIA
• Section: 271(1)(c); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING:03/03/2010 DRAFTED ON: 03/03/2 010 ITA NO.445/AHD/2006 ASSESSMENT YEAR : 2001-2002 ITO, OFFICE OF THE ITO, WARD 3(1), 5 TH FLOOR, INSURANCE BUILDING, ASHRAM ROAD, AHMEDABAD. VS. M/S. B.R.METAL INDUSTRIES, 345, GVMM, ODHAV, AHMEDABAD. PAN/GIR NO. : AADFB 9806 E (ASSESSEE) .. (RESPONDENT) ASSESSEE BY : SHRI C.K.MISHRA SR. D.R. RESPONDENT BY: SHRI S.N.DIVETIA. A.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VII, AHMEDABAD , DATED 27.11.2006. 2. THE GROUNDS OF THE APPEAL READS AS UNDER:- 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CAN CELING THE ORDER PASSED UNDER SECTION 271(1)(C) OF THE INCOME TAX AC T, 1961 LEVYING OF RS.4,94,418/-. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A PARTNERSHIP FIRM, ENGAGED IN THE MANUFACTURING AS WELL AS JOB WORK OF CONVERSION OF FLATS INTO SHEETS OR STRIPS BY ROLLING MILLS. THE ASSESSEE HAD FILED ITS RETURN OF INCOME FOR A.Y. 2001-02 ON 25.10.2001 DECLARING TOTAL INCOME O F RS.4,71,600/- ALONG WITH TAX AUDIT REPORT. IN THE P&L ACCOUNT THE ASSES SEE HAD ADDED ADDITIONAL ITA NO .445 /AHD/2007 - 2 - INCOME OF RS.7,76,110/- TOWARDS THE JOB WORK WHICH WAS OFFERED FOR TAXATION IN COURSE OF SURVEY ON 23.1.2001. THERE WAS A SURVE Y U/S 133A OF THE ACT ON 23.1.2001 AT THE BUSINESS PREMISES OF THE ASSESSEE AND THE GROUP CONCERNS WHEREIN A NOTE BOOK TITLED SONAL SUPER KING WAS FOU ND AND INVENTORISED AS ANNEXURE X-LL FROM THE PREMISES OF THE SISTER CONCE RN M/S BIPIN METAL INDUSTRIES. IT CONTAINED THE DETAILS OF THE QUANTIT Y OF GOODS ENTERING THE FACTORY PREMISES FOR THE PURPOSE OF JOB WORK OF HOT ROLLING. STATEMENT OF ONE SHRI RASHMIKANT R.SHAH, PARTNER OF M/S BIPIN METAL INDUSTRIES WAS RECORDED ON 23.1.2001 WHEREIN HE HAD AGREED TO HAVE CARRIED OUT JOB WORK OF 571948 KG. FOR ASSESSEE COMPANY M/S B.R. METAL INDUSTRIES. SHRI. SHAILESH SHAH, PARTNER OF ASSESSEE COMPANY ALSO GAVE A STATEMENT A CCEPTING THAT GOODS OF 571948 KG. WHICH HAVE BEEN PROCESSED BY SISTER CONC ERN M/S BIPIN METAL INDUSTRIES ARE NOT RECORDED IN REGULAR BOOKS OF ACC OUNT. IN ADDITION, 129945 KG. OF GOODS PROCESSED BY OTHERS WERE ALSO NOT ACCO UNTED FOR BY ASSESSEE IN ITS BOOKS OF ACCOUNT. THUS, TOTAL OF 701093 KG. OF GOODS WERE PROCESSED OUTSIDE BOOKS OF ACCOUNT. THE ASSESSEE HAD OFFERED ADDITIONAL INCOME OF RS.776110 IN RESPECT OF THE ABOVE GOODS WHICH WAS C ALCULATED AT AN AVERAGE GP RATE OF 2.7% ON THE ESTIMATED SALE PRICE. HOWEVE R, WHILE FINALISING THE ASSESSMENT THE AO RECALCULATED GP RATE AT 7.5% AND CALCULATED THE ADDITIONAL INCOME AT RS.20,37,285/- AND AFTER ALLOWING SET OFF OF INCOME DECLARED IN THE RETURN, HE MADE ADDITION OF RS. 12,61,275/-. IN COU RSE OF ASSESSMENT PROCEEDINGS, THE AO ESTIMATED GP RATE OF THE ASSESS EE'S BUSINESS AT 7.45%. HE USED THIS ESTIMATED GP RATE OF 7.45% TO UNACCOUN TED PRODUCTION ALREADY ADMITTED BY THE ASSESSEE AT 701093 KGS. AND ARRIVED AT A FIGURE OF RS.20,37,285/-. THE RESULTING DIFFERENCE (RS.20,37, 288 - RS.7,76,110/- DISCLOSED IN THE RETURN) OF RS.12,61,275/- WAS ADDE D BY THE AO TO THE ASSESSEE'S TOTAL INCOME. HE INITIATED PENALTY PROCE EDINGS U/S 271 (1)(C) FOR CONCEALMENT OF INCOME TO THE EXTENT OF RS.20,37,285 /-. ITA NO .445 /AHD/2007 - 3 - 4. IN APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X(APPEALS) FOR THE REASONS MENTIONED BY HER, CONFIRMED THE ABOVE ESTIM ATED INCOME BASED ON ESTIMATION OF HIGHER GP RATE. AFTER GIVING APPEAL E FFECT, THE AO TOOK UP THE PENALTY PROCEEDINGS. HE REJECTED THE EXPLANATION OF THE ASSESSEE AND HELD THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCO ME. IN HIS ORDER, THE AO HAS HELD AS UNDER: 'THE REPLY OF THE ASSESSEE IS CAREFULLY CONSIDERED AND THE SAME IS NOT FOUND TO BE ANY RELEVANT WITH THE ISSUE IN QUESTION AND IN VIEW OF THE FACTS NARRATED IN THE ASSESSMENT ORDER AND ALSO THA T OF THE ID. C1T(A), IT IS CLEAR THAT THERE IS CONSCIOUS INTENTION BY TH E ASSESSEE TO REDUCE THE TAXABLE INCOME AND ITS TAX LIABILITY AND AS SUC H THE PROVISIONS OF SECTION 271(L)(C) ARE APPLICABLE. THE ASSESSEE, IN HIS SUBMISSION HAS FAILED TO REBUT THE BURDEN CAST ON HIM TO PROVE THA T HIS ACTION WAS BONAFIDE AND WITHOUT ANY INTENTION TO DEFRAUD THE R EVENUE. TAKING INTO CONSIDERATION THE ABOVE FACTS AND THOSE DISCUSSED ELABORATELY IN THE ASSESSMENT ORDER THE AMOUNT OF P ENALTY LEVIED IS RS.494418/- WHICH IS 100% OF THE TAX AGAINST RS. 14 ,83,2847- @ 300% SOUGHT TO BE EVADED. DEMAND NOTICE AND CHALLAN ISSU ED ACCORDINGLY. THIS ORDER IS PASSED AFTER OBTAINING PRIOR APPROVAL OF THE ADDL. C.I.T., AR-3, AHMEDABAD GIVEN VIDE HIS LETTER NO.AR-3/IV(A) /PEN. APPROV./M/S B.R.M./2005-06 DATED 23.3.2006.' 5. BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(AP PEALS), THE ASSESSEE HAS FILED A DETAILED WRITTEN SUBMISSION ST ATING THE FACTS OF THE CASE. REFERRING TO GP ADDITION IT IS SUBMITTED THAT THE A DDITION OF RS.12,61,275/- HAS BEEN MADE BY THE AO BY ADOPTING A HIGHER GP RAT E OF 7.5%. IT IS SUBMITTED THAT THOUGH THE ADDITION MADE BY THE AO H AS BEEN CONFIRMED BY THE ID. CIT(A), THE ASSESSEE IS OF THE VIEW THAT TH ERE IS NO JUSTIFICATION FOR ESTIMATING A HIGHER GP RATE OF 7.5%. THE AO HAS MAD E A RATIO ANALYSIS WHILE ARRIVING AT THIS FIGURE. THERE IS NO COMPARABLE FIG URE OF SUCH HIGH G.P. IN THIS LINE OF BUSINESS. DUE TO THIS REASON, THE ASSESSEE HAS FILED SECOND APPEAL BEFORE THE I.T.A.T., AHMEDABAD BENCH WHICH IS PENDI NG AND THE ASSESSEE IS QUITE HOPEFUL OF GETTING REDUCTION OF THE INCOME AD DED. ITA NO .445 /AHD/2007 - 4 - 6. REGARDING LEVY OF PENALTY IT WAS SUBMITTED THAT WHEN ADDITION IS MADE BY AO ON ESTIMATE BASIS IT CANNOT BE CONCLUDED THAT ASSESSEE HAS CONCEALED SUCH INCOME. HE HAS RELIED ON A NUMBER OF DECISIONS . THE ID. A.R. FURTHER SUBMITTED THAT PENALTY HAS BEEN LEVIED MERELY BECAU SE ADDITION HAS BEEN CONFIRMED BY CIT(A). HOWEVER, PENALTY COULD NOT BE AUTOMATICALLY ON THE GROUND THAT ADDITION HAS BEEN CONFIRMED BY CIT(A). FURTHER, IT IS SUBMITTED THAT THE ASSESSEE HAS FILED AN EXPLANATION REGARDIN G NOT ACCEPTING THE GP RATE OF 7.5% AS ESTIMATED BY THE AO. THE EXPLANATIO N OF THE ASSESSEE MAY NOT BE SATISFACTORY BUT NO PENALTY COULD BE LEVIED FOR THE SAME. 7. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AFTER CONSIDERING THE SUBMISSIONS ON OF THE ASSESSEE DELETED THE LEVY OF PENALTY BY THE LEARNED ASSESSING OFFICER. 8. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT IN THE QUANTUM APPEAL FILED BY THE ASSESSEE, T HE TRIBUNAL VIDE ORDER DATED 12.09.2008, IN ITA NO.11269/AHD/2005, SUSTAIN ED ADDITION OF GROSS PROFIT @ 6% IN PLACE OF 7.5 % ESTIMATED BY THE LEAR NED ASSESSING OFFICER. IT WAS SUBMITTED THAT SINCE THE GROSS PROFIT ADDITION WAS SUSTAINED AT AN ESTIMATE OF 6% BY THE TRIBUNAL AGAINST THE ESTIMATE OF THE LEARNED ASSESSING OFFICER AT 7.5%, THEREFORE, ON SUCH ESTIMATED ADDIT ION, NO PENALTY CAN BE LEVIED ON THE ASSESSEE. 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND ARGUED THAT THE GROSS PROFIT WAS ESTIMATED @ 6% ON ADMITTE D UNACCOUNTED PRODUCTION OF 6,62,532 KGS., BY THE ASSESSEE. THUS, SUPPRESSION OF PRODUCTION AND SELLING THE SAME OUTSIDE THE BOOKS OF ACCOUNT W AS ADMITTED BY THE ASSESSEE. THEREFORE, THE PENALTY WAS RIGHTLY LEVIED ON THE ASSESSEE FOR CONCEALMENT OF PRODUCTION AND SALES OUTSIDE THE BOO KS OF ACCOUNT. HENCE, ITA NO .445 /AHD/2007 - 5 - THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFIED IN DELETING THE LEVY OF PENALTY OF RS.4,94,418/- BY TH E LEARNED ASSESSING OFFICER. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT DURING THE COURSE OF SURVEY IN THE PREMISES OF THE ASSESSEE, IT WAS FOUND THAT THE ASSESSEE HAS MADE C ERTAIN PRODUCTION OUTSIDE THE BOOKS OF ACCOUNT. THE ASSESSEE ADMITTED THE SAI D PRODUCTION AND DISCLOSED INCOME OF RS.7,76,110/- ON ACCOUNT OF SUC H PRODUCTION IN THE RETURN OF INCOME FILED BY IT. THE AFORESAID INCOME WAS DISCLOSED BY THE ASSESSEE BY ADOPTING THE SAME GROSS PROFIT RATE WHI CH WAS ARRIVED AT FROM THE BOOKS OF ACCOUNT IN RESPECT OF REGULAR PRODUCTI ON ENTERED THEREIN. HOWEVER, ON ASSESSMENT, THE INCOME WAS NOT ACCEPTED ON THE BASIS OF THE REGULAR PRODUCTION AND FOR THE REASON THAT CERTAIN EXPENSES MIGHT HAVE BEEN ACCOUNTED FOR FULLY IN THE BOOKS OF ACCOUNT. THE IN COME ON THE ABOVE PRODUCTION WAS ESTIMATED @6% BY THE TRIBUNAL. ON TH E ABOVE ENHANCEMENT OF INCOME ON ESTIMATE PENALTY UNDER SECTION 271(1)( C) WAS LEVIED BY THE LEARNED ASSESSING OFFICER AT RS.4,94,418/-, WHICH W AS DELETED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BY OBSERVING AS UNDER:- 8. I HAVE CAREFULLY CONSIDERED THE ABOVE SUBMISSIO NS. IT IS A FACT THAT THE APPELLANT HAS SOLD CERTAIN GOODS OUTS IDE THE BOOKS WHICH WAS DETECTED ON THE COURSE OF SURVEY. ON THE BASIS OF DISCUSSION HELD WITH THE AO, THE APPELLANT HAS DISC LOSED INCOME OF RS.7,76,110/- BY ADOPTING A GP RATE OF 2.70%. TH IS DISCLOSURE OF INCOME IS ON AN ESTIMATE BASIS. HOWEVER, IN THE AS SESSMENT PROCEEDINGS, THE AO WAS OF THE VIEW THAT THE GP RAT E OF 2.7% WHICH WAS MADE THE BASIS FOR DISCLOSURE IS NOT A CO RRECT GP RATE, HE HAS EXCLUDED VARIOUS EXPENDITURES AND ESTIMATED THE CORRECT GP RATE AT 7.5% WHICH HAS BEEN ACCEPTED BY THE ID.C IT(A). FROM THE ABOVE, IT IS CLEAR THAT THE AO HAS ESTIMATED A HIGHER GP RATE AND ON THAT BASIS HE HAS MADE CERTAIN ADDITION. THE RE IS NO REFERENCE TO ANY SPECIFIC ITEM OR AMOUNT OF CONCEAL MENT. THE AO HAS NOT BROUGHT ON RECORD ANY ITEM OF INCOME WHICH HAS BEEN OMITTED BY THE APPELLANT OR ANY ITEM OF EXPE NDITURE WHICH HAS BEEN FALSELY CLAIMED. WHAT THE AO HAS DONE IS T O REWORK THE ITA NO .445 /AHD/2007 - 6 - GP ON THE BASIS OF EXCLUSION OF SOME EXPENDITURE. B UT NOTHING HAS BEEN BROUGHT ON RECORD TO PROVE THAT THE APPELLANT HAS EARNED THAT INCOME. THUS, THE ADDITION WHICH IS BASED ON HIGHER ESTIMATE OF GP CANNOT BE SAID TO BE CONCEALED INCOM E OF THE APPELLANT. 8.1 FROM THE ASSESSMENT ORDER AND PENALTY ORDER IT IS CLEAR THAT AO HAS NOT POINTED TO ANY SPECIFIC OMISSION OF INCOME BY THE APPELLANT OR ANY SPECIFIC CLAIM OF EXPENDITURE BY T HE APPELLANT WHICH HAS BEEN FOUND TO BE FALSE OR BOGUS. THIS MEA NS, THE AO HAS NOT ESTABLISHED A SPECIFIC CASE OF FILING INACC URATE PARTICULARS OR CONCEALING PARTICULARS OF INCOME. 8.2. IN A NUMBER OF CASES, THE COURTS HAVE HELD THA T WHEN ADDITION IS MADE ON ESTIMATE BY APPLYING A HIGHER G P RATE, NO PENALTY IS LEVIABLE. 8.3 IN THE CASE CIT VS. SUBHASH TRADING CO., 221 ITR 110 (GUJ) IT HAS BEEN HELD THAT THOUGH BOOK RESULT OF APPELLANT WAS REJECTED, SINCE THERE WAS NO EVIDENCE TO CONCLUDE A POSITIVE AND SPECIFIC FINDING THAT THERE WAS CONCEALMENT, PENALTY LEVIED U/S 271(L)(C) CANNOT BE SUSTAINED. APPELLANT'S BURDEN TO PRESUMPT ION RAISED BY THE REVENUE UNDER EXPLANATION 1 TO SECTION 271 (1 ) (C) STAND REBUTTED ON THE BASIS OF MATERIALS AVAILABLE ON REC ORD. THE ABOVE VIEW HAS BEEN HELD IN THE FOLLOWING CASES : (A) IN THE CASE OF CIT VS. M.M. RICO MILLS, 2 53 ITR 17 ( P & H) IT HAS BEEN HELD AS UNDER: ' MERELY BECAUSE THE ADDITION HAD BEEN MADE ON ESTI MATE UNDER THE PROVISO TO SECTION 145(1) BY ADOPTING THE VIEW THAT THE GROSS PROFIT SHOWN IN THE BOOKS OF ACCOUNT WAS TOO LOW AS THERE WERE DEFECTS IN THE METHOD OF ACCOUNTI NG EMPLOYED DID NOT AUTOMATICALLY LEAD TO THE CONCLUSI ON THAT THERE WAS FAILURE TO RETURN THE CORRECT INCOME BY M EANS-OF FRAUD OR GROSS OR WILLFUL NEGLECT.' (B) CIT S. AARKAY SAREE MUSEUM, 187 ITR 147 (B OM) 'IN THIS CASE WHILE UPHOLDING THE ACTION OF TRIBUNA L CANCELLING THE PENALTY, IT HAS BEEN HELD THAT THE T RIBUNAL HAD RIGHTLY HELD THAT MERELY BECAUSE CERTAIN ADDITI ONS WERE MADE IN THE TRADING ACCOUNT BY THE ASSESSING OFFICE R, IT DID NOT NECESSARILY FOLLOW THAT THE ASSESSES HAD CONCEA LED ITS INCOME' ITA NO .445 /AHD/2007 - 7 - (C) NAVJIVAN MILLS VS. CIT, 252 ITR 417 (GUJ.) 'IN THIS CASE IT IS HELD THAT THE INCOME-TAX OFFICE R AFTER PROCESSING THE SEIZED MATERIAL MADE FURTHER ESTIMAT ES THEREFROM AND HENCE THE ADDITION MADE AND SUSTAINED ON THE BASIS OF SUCH ESTIMATE COULD NOT BE SAID TO RES ULT IN A SITUATION WHERE IT WOULD BE POSSIBLE TO ASCRIBE THE FAILURE TO RETURN THE CORRECT INCOME TO THE APPELLANT ON AC COUNT OF ANY FRAUD, OR ANY GROSS WILLFUL NEGLECT. IT THAT BE THE CASE, THE EXPLANATION TO SECTION 271 (L)(C) COULD NOT BE INVOKED AGAINST THE APPELLANT AND PENALTY LEVIED COULD NOT BE SUSTAINED. EVEN IF THE EXPLANATION TO SECTION 271(L )(C) OF THE ACT WERE HELD TO BE APPLICABLE IT COULD BE SAID THA T THE APPELLANT HAD REBUTTED THE PRESUMPTION, I.E. DISCHA RGE THE BURDEN.' IN VIEW OF THE ABOVE DECISIONS AND TAKING INTO ACCO UNT THE FACTS OF THE CASE OF THE APPELLANT, THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) HELD THAT THE APPELLANT CANNOT BE SAID TO HAVE CONCEALED PARTICULARS OF INCOME OR FILING OF I NACCURATE PARTICULARS OF INCOME. THEREFORE, THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) HELD THAT THE AO IS NOT JUSTIFI ED IN TREATING GP ADDITION OF RS. 12,61,7767- AS CONCEALED INCOME OF THE APPELLANT AND CANCELLED THE PENALTY ORDER PASSED UN DER SECTION 271(1)(C) LEVYING PENALTY OF RS.4,94,418/- IS CANCE LLED. 11. THE LEARNED DEPARTMENTAL REPRESENTATIVE ARGUED THAT AS IT IS NOT DISPUTE THAT THE ASSESSEE HAS ENTERED INTO TRANSACT IONS OF PRODUCTION OUTSIDE THE BOOKS OF ACCOUNT THEREFORE, THE LEARNED ASSESSI NG OFFICER WAS JUSTIFIED IN IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFI ED IN DELETING SUCH PENALTY. WE FIND THAT UNDER PROVISIONS OF SECTION 2 71(1)(C) OF THE ACT, THE PENALTY IS LEVIABLE IN RESPECT OF CONCEALMENT OF IN COME OR FOR THE DEFAULT OF FURNISHING INACCURATE PARTICULARS OF INCOME IN THE RETURN OF INCOME. PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE ONLY BECAUS E OF ENTERING INTO CERTAIN TRANSACTIONS OUTSIDE THE BOOKS OF ACCOUNT. THE FAC T OF CONCEALMENT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME HAS TO BE INFERRED FROM THE RETURN OF INCOME ACTUALLY FILED BY THE ASSESSEE AND IF THE ASSESSEE HAS SHOWN INCOME IN RESPECT OF TRANSACTIONS ENTERED OUTSIDE T HE BOOKS OF ACCOUNT IN THE ITA NO .445 /AHD/2007 - 8 - RETURN OF INCOME FILED BY IT THEN NO PENALTY UNDER SECTION 271(1)(C) IS EXIGIBLE. FURTHER, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. WE FIND THAT NO MATERI AL WAS BROUGHT ON RECORD TO SHOW THAT THE ESTIMATION OF INCOME AS MAD E BY THE ASSESSEE IN ITS RETURN OF INCOME WAS MALAFIDE AND THE ASSESSEE ACTU ALLY EARNED MORE INCOME THAN THAT. IN ABSENCE OF ANY SUCH POSITIVE M ATERIAL BROUGHT ON RECORD, WE DO NOT FIND ANY ERROR IN THE ORDER OF LE ARNED COMMISSIONER OF INCOME TAX(APPEALS), IT IS CONFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER, SIGNED DATED AND PRONOUNCED IN THE COURT 05 /03/2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD; DATED 05/03/2010. PARAS# COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS). 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD