Sharda Timber Store, Karnal V. ITO, Karnal

ITA 5717/DEL/2010

• Counselvise Citation: 571720114 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Assessee Lawyers: G N GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 5717/DEL/2010 ASSESSMENT YEAR: 2007-08 SHARDA TIMBER STORE, TIMBER MARKET, VS. ITO, WARD- 1, KARNAL. AAFFS0721B KARNAL. (APPELLANT) (RESPONDENT) ITA NO. 5662/DEL/2010 ASSESSMENT YEAR: 2007-08 ITO, WARD-1, VS. SHARDA TIMBER S TORE, TIMBER MARKET, KARNAL. SADAR BAZAR, KARNAL. (APPELLANT) (RE SPONDENT) ITA NO. 5714/DEL/2010 ASSESSMENT YEAR: 2007-08 SHANKAR TIMBER STORE, TIMBER MARKET, VS. ITO, KARNAL. WARD-1, KARNAL. (APPELLANT) (RESPONDENT) & ITA NO. 5933/DEL/2010 ASSESSMENT YEAR: 2007-08 ITO, WARD-1, VS. SHANKAR TIMBER STORE, KARNAL. TIMBER MARKET, KARNAL. (APPELLANT) (RESPONDENT) APPELLANT BY : G.N. GUPTA, CA RESPONDENT BY : S. MOHANTY, DR ORDER PER BENCH : THESE ARE FOUR APPEALS FILED BY THE REVENUE AND TWO DIFFERENT ABOVE NAMED ASSESSEES AGAINST SEPARATE ORDERS DATED 27.0 9.2010 & 14.10.2010 OF CIT(A) KARNAL RESPECTIVELY PERTAINING TO 2007 -08 ASSESSMENT YEAR ARE ITA NOS. 5717, 5662, 5714 & 5933/D/2010 2 BEING DECIDED BY A COMMON ORDER SINCE, COMMON ARGUM ENTS WERE ADVANCED BY THE PARTIES BEFORE THE BENCH QUA THE IS SUES INVOLVED. 2. TAKING UP THE CASE OF SHARDA TIMBER STORE, WHERE IN THE DEPARTMENT AND THE ASSESSEE ARE BOTH IN APPEAL VIDE ITA NO. 57 17/DEL/2010 & ITA NO. 5662/DEL/2010 RESPECTIVELY, IT IS SEEN THAT THE ASS ESSEE IN ITS APPEAL HAS RAISED THE FOLLOWING GROUNDS: 1.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE LD. CIT(APPEALS) KARNAL (HEREINAFTER CALLED CIT(A)) ERR ED IN CONFIRMING THE DECISION OF INCOME TAX OFFICER, WARD-1, KARNAL (ITO FOR SHORT) THAT THE ACCOUNTS MAINTAINED BY THE APPELLANT DESERVED TO BE REJECTED UNDER THE PROVISIONS OF SEC. 145(3) OF THE I.T. ACT, 1961 ON THE GROUNDS THAT THE TRADING RESULTS DECLARED BY THE APPELLANT WERE NOT VERIFIABLE IN THE ABSENCE OF AN ITEM WISE STOCK REGISTER AND THAT THE BOOKS O F ACCOUNTS WERE NOT IN ACCORDANCE WITH THE PROVISIONS OF SEC. 44AA OF THE INCOME TAX ACT, 1961. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, BOTH CIT(A) AND ITO ERRED IN REJECTING THE BOOK RESULTS AND MAKING AN ADDITION OF RS. 5740570/- SINCE NOT EVEN AN IOTA OF INACCURACY WAS FOUND IN THE BOOKS OF ACCOUNTS. INDEED EVEN THE TURNOVER DISCLOSED BY TH E APPELLANT WAS ACCEPTED BY THE ITO AND CIT(A). 2.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LOWER AUTHORITIES ERRED IN HOLDING THAT THE CASES OF JAI PRAKASH M/S NARWANA TIMBER STORES, KARNAL FOR A.Y. 2004-05 & 2005-06, N EERAJ JAIN PROPRIETOR JAGDAMBA TIMBER STORE KARNAL FOR A.Y. 2006-07 WERE COMPARABLE WITH THE CASE OF THE APPELLANT. 2.2 THAT WITHOUT PREJUDICE TO GROUND OF APPEAL NO. 2.1 ABOVE, THE ITO ERRED IN DRAWING THE INFERENCE FROM THE COMPARABLE CASE CITE D BY HIM THAT A GROSS PROFIT RATE OF 4.9% WAS APPLICABLE IN THE CASE OF T HE APPELLANT. CIT(A) ALSO ERRED IN DRAWING THE INFERENCE THAT A GROSS PROFIT RATE OF 4% WAS APPLICABLE IN VIEW OF THE DATA OF COMPARABLE CASE CITED BY THE ITO ON PAGE 10 OF THE ASSESSMENT ORDER. 2.3 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) ERRED IN NOT TAKING PROPER COGNIZANCE OF THE DATA OF COMPARABLE CASES CITED BY THE APPELLANT BEFORE HIM. 3. THAT WITHOUT PREJUDICE TO GROUNDS OF APPEAL NO. 1 & 2 ABOVE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADDITION SUSTAINED BY CIT(A) IS ARBITRARY AND HUGELY EXCESSIVE. 4. THAT THE APPELLANT CRAVES LIBERTY TO ADD, AMEND OR VARY ANY GROUND OF APPEAL. 2.1 THE DEPARTMENTAL GROUNDS READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DIRECTING TO WORK OUT PROFIT BY APPLYING A G.P. RATE OF 4% AS AGAINST 4.9% APPLIED BY THE AO WITHOUT APPRECIATING THAT G.P. RATE DECLARED IN THE COMPARABLE CASES OF THE LINE RELIED UPON BY THE AO HAD SHOWN BETTER RESULTS AND THE ACCOUNT BOOKS MAINTAIN ED BY THE ASSESSEE ITA NOS. 5717, 5662, 5714 & 5933/D/2010 3 SUFFERED FROM DEFECTS SO AS TO WARRANT INVOKING OF SEC. 145(3) OF THE I.T. ACT. 2. THAT APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 3. THE RELEVANT FACTS ARE THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERATION RETURNED AN INCOME OF RS. 2,09,390/-. THE AO OBSERVED THAT THE ASSESSEE FIRM IS ENGAGED IN TRADING OF TIMBER A ND EXCEPT A FEW LOCAL PURCHASES MOST OF THE PURCHASES WERE FROM SINGAPORE . THE AO ALSO OBSERVED THAT AS PER THE PURCHASE BILLS DIFFERENT V ARIETIES WERE IMPORTED THE DESCRIPTION AND QUALITY HAD BEEN MENTIONED. HOWEVE R, THE SALE BILLS DID NOT REFLECT THE SAME DESCRIPTION AND QUALITY. HENC E, THE SALE BILLS COULD NOT BE CO-RELATED TO THE PURCHASE BILLS. FURTHER SINC E IT WAS CONCLUDED THAT THE STOCK REGISTERS HAVING VALUATION OF OPENING STOCK A ND CLOSING STOCK WHICH DID NOT CONTAIN QUALITY WISE DETAILS OF TIMBER. THE TRADING RESULTS IT WAS HELD WERE NOT VERIFIABLE. AS SUCH THE AO CONSIDERED THE SAME TO BE UNVERIFIABLE. ACCORDINGLY, MAKING COMPARISON WITH SOME LOCAL CONCERNS, THE AO ESTIMATED GP @ 4.9%. IN APPEAL THE SAME WAS REDUCED TO 4%. AGGRIEVED BY THIS BOTH THE ASSESSEE AND THE DEPARTM ENT ARE IN APPEAL. 4. IN SUPPORT OF THE GROUNDS RAISED BY THE LD. AR T HAT THE REJECTION OF ASSESSEES BOOKS OF ACCOUNTS ON THE GROUND THAT THE DECLARED RESULTS WERE NOT VERIFIABLE BECAUSE OF THE NON-MAINTENANCE ITEM WISE AND QUALITY WISE DETAILS IN THE STOCK REGISTER THE ACTION WAS ASSAIL ED AS BAD IN LAW. RELIANCE WAS PLACED UPON THE FOLLOWING JUDGMENTS. 1) CIT VS.GOTAN LIME KHANIJ UDHYOG, 256 ITR 243 (RA JASTHAN); 2) MADNANI CONSTRUCTION CORPORATION P. LTD. VS. CIT , 296 ITR 45 (GAUHATI); 3) PYARELAL MITTAL VS. ACIT, 291 ITR 214(GAUHATI); 4) CIT VS. R.K. RICE MILLS, 319 ITR 173(P&H); 5) CIT VS. OM OVERSEAS, 315 ITR 185(P&H); 6) CIT VS. PARADISE HOLIDAYS, 325 ITR 13(DELHI); 7) CIT VS. JAS JACK ELEGANCE EXPORTS, 324 ITR 95(DE LHI); 8) CIT VS. MASCOT (INDIA) TOOLS AND FORGINS P. LTD. , 320 ITR 116(ALLAHABAD); 9) PANKAJ DIAMOND VS. ACIT, 5 ITR(TRIB.) 469(AHMEDA BAD); ITA NOS. 5717, 5662, 5714 & 5933/D/2010 4 4.1 IT WAS ALSO HIS STAND THAT THE AO HAS MADE A CO MPARISON AS PER PAGE 10 OF THE IMPUGNED ORDER WITH THREE DIFFERENT PARTI ES. FOR JAI PARKASH M/S NARWANA TIMBER STORE, KARNAL, HE HAS TAKEN THE FIGU RES FOR 2 ASSESSMENT YEARS WHEREIN QUA A.Y. 2004-05 HE HAS BASED HIS CON CLUSION ON THE FACT THAT GP RATE WAS 6% WHICH IS FACTUALLY WRONG AS PER THE ASSESSMENT ORDER NOW IN THE POSSESSION OF THE ASSESSEE WHICH WOULD S HOW THAT THE GROSS PROFIT DISCLOSED WAS 4.6% AND THUS, THE AVERAGING D ONE BY THE AO OF 4.90% IS ITSELF WRONG AS WHEN THE CORRECT FIGURES A RE READ INTO THE TABULATION AT PAGE 10 OF THE ASSESSMENT ORDER THE A VERAGE GP WOULD WORK OUT AS 4.55%. IT WAS HIS ARGUMENT THAT NO FACTS HA VE BEEN CONFRONTED OR DISCUSSED TO SHOW THAT FACTS OF THESE CONCERNS WERE COMPARABLE WITH THE ASSESSEE. 4.2 INVITING ATTENTION TO PAGE 13 OF THE ASSESSMENT ORDER IT WAS HIS SUBMISSION THAT THE ASSESSEE IS CARRYING ON THE BUS INESS OF TIMBER ON WHOLESALE BASIS AND THE ASSESSEE WAS NOT AWARE WHET HER THE THREE FIRMS TAKEN INTO CONSIDERATION BY THE AO WERE WHOLESALERS OR RETAILERS AS SUCH ASSESSEE SOUGHT THEIR PARTICULARS WHICH WERE NEVER CONFRONTED TO THE ASSESSEE. IT WAS HIS ARGUMENT THAT INFORMATION USE D WAS NEVER CONFRONTED TO THE ASSESSEE. THE LD. AR ON THE OTHER HAND, SOU GHT TO PLACE RELIANCE BY WAY OF SUPPLEMENTARY PAPER BOOK UPON COMPARABLE CAS ES SO AS TO CONTEND THAT THE GP RATE DECLARED BY THE ASSESSEE S HOULD BE ACCEPTED, WHEREIN COPY OF ASSESSMENT ORDER DATED 24.12.2008 P ASSED BY ITO WARD-1, KARNAL FOR A.Y. 2006-07 IN THE CASE OF M/S JANTA TIMBER STORE; COPY OF ASSESSMENT ORDER DATED 12.12.2008 PASSED BY ITO WARD-1, KARNAL FOR A.Y. 2006-07 IN THE CASE OF M/S SWASTIK TIMBER STORE & COPY OF ASSESSMENT ORDER DATED DECEMBER, 2008 PASSED BY ITO WARD-1, KARNAL FOR A.Y. 2006-07 IN THE CASE OF M/S MITTAL TIMBER S TORE WERE ENCLOSED. 4.3 IT WAS ALSO HIS STAND THAT THE SALES OF THE ASS ESSEE HAVE BEEN ACCEPTED AS SUCH THE DECLARED RESULTS SHOULD HAVE B EEN ACCEPTED. ITA NOS. 5717, 5662, 5714 & 5933/D/2010 5 5. THE LD. DR ON THE OTHER HAND, RELIED UPON THE AS SESSMENT ORDER. 6. THE PARTIES BEFORE THE BENCH WERE REQUIRED TO AD DRESS THE PAST HISTORY OF THE ASSESSEE NAMELY WHETHER THE BOOKS OF ACCOUNTS OF THE ASSESSEE HAVE BEEN REJECTED IN THE PREVIOUS YEARS; THE MANNER IN WHICH THE BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED WHETHER ASSESSMENTS HAVE BEEN MADE U/S 143(3)/143(1). WHEREAS THE LD. AR ST ATED THAT HE WAS NOT AWARE OF THE PAST HISTORY. THE LD. DR WAS OF THE V IEW THAT PAST HISTORY IS NOT RELEVANT AS RES-JUDICATA DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES O F THE CASE IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE AO. IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE THE FULL FACTS AND FI GURES OF THE COMPARABLES USED BY THE ASSESSEE HAD NOT BEEN CONFRONTED. AS P ER THE ASSESSEES CLAIM THE COMPARISON IS MADE WITH UNCOMPARABLES WHO SE FACTS HAVE ALSO BEEN WRONGLY APPRECIATED. THE ASSESEE HAS ALSO SOU GHT TO BUTTRESS ITS CLAIM RELYING UPON COMPARABLE CASES; IT IS SEEN THA T THESE WOULD CONSTITUTE FRESH EVIDENCES AS SUCH WE DO NOT ADMIT THE SAME. HOWEVER, THE FACT REMAINS THAT THE ASSESEE HAS DEMONSTRATED THAT MATE RIAL USED HAS NOT BEEN CONFRONTED TO THE ASSESEE. WE HAVE TAKEN NOTE OF THE DEPARTMENTAL STAND THAT RES-JUDICATA DOES NOT APPLY IN THE INCOM E TAX PROCEEDINGS HOWEVER, THERE IS ALSO AN EQUALLY STRONG LEGAL PRIN CIPLE TO BE CONSIDERED NAMELY CONSISTENCY. WHICH PRINCIPLE SHALL APPLY IN A SET OF FACTS HAS TO BE CONSIDERED AS PER SETTLED LEGAL PRECEDENTS ON THE F ACTS OF EACH AND EVERY CASE. GENERALLY WHEN COMPARISONS ARE RESORTED TO T HEN IT IS UNIVERSALLY A SETTLED LEGAL PRINCIPLE THAT ONES OWN PAST HISTORY IS THE BEST EVIDENCE AND BASIS FOR MAKING COMPARISONS. NO DOUBT RES-JUDICAT A DOES NOT APPLY TO THE INCOME TAX PROCEEDINGS. HOWEVER, THE PAST HISTORY OF THE ASSESSEE IS AN IMPORTANT INDICATOR WHICH IS TO BE TAKEN INTO CONSI DERATION UNLESS THERE ARE ITA NOS. 5717, 5662, 5714 & 5933/D/2010 6 REASONS FACTUAL OR LEGAL WHICH LEAD TO THE CONCLUSI ON THE PAST HISTORY HAS TO BE IGNORED. THE LEGAL PRINCIPLE THAT IF COMPARISON S ARE TO BE MADE THEN THE BEST COMPARISON IS OF THE ASSESSEES PERFORMANCE IT SELF AS STATED IS UNIVERSALLY ACCEPTED AND IN THE EVENTUALITY COMPARI SONS ARE TO BE MADE WITH OUTSIDERS THEN THE PARTIES WITH WHOM COMPARISO N ARE BEING MADE THE RELEVANT FACTS APPLICABLE TO THEM HAVE TO BE DISCLO SED TO THE ASSESSEE SO AS TO ENABLE THE ASSESSEE TO GIVE AN EFFECTIVE REPR ESENTATION. TO MAKE A COMPARISON WITH A BUSINESS CONCERN WHOSE PARTICULAR S ARE NOT KNOWN TO THE ASSESEE CANNOT BE UPHELD AS MERELY CONFRONTING THE NAMES CANNOT BE SAID TO BE AFFORDING A GENUINE AND EFFECTIVE OPPORT UNITY OF BEING HEARD AS RELEVANT FACTS HAVE NOT BEEN DISCLOSED. THE AO MU ST TAKE INTO CONSIDERATION THE LOCAL PRACTICES AND ALSO REFER TO PREVIOUS RECORD OF THE ASSESSEE AND CONSIDER COMPARABLES AFTER CONFRONTING THESE FACTS OF THE ASSESSEE SO AS TO ARRIVE AT A FAIR AND PROPER ESTIM ATE IF BEST JUDGMENT HAS TO BE RESORTED TO. THE AO WHILE MAKING THE BEST JU DGMENT IS NOT ENTITLED TO IGNORE THE ASSESSEES OWN HISTORY AS WHAT BETTER CO MPARISON THEN ONES OWN PAST. THUS, THE ASSESSEES OWN CASE CAN BE CON SIDERED AND IF STILL NEED BE FELT JUDICIALLY TO MAKE COMPARISONS WITH CO MPARABLES, THEN IT CAN BE DONE ONLY AFTER CONFRONTING THEIR FACTS TO THE A SSESSEE. 7.1 ACCORDINGLY, ON ACCOUNT OF THE REASONS GIVEN HE REINABOVE THE ISSUE IS RESTORED BACK WITH THE DIRECTION THAT THE AO SHA LL DECIDE THE ISSUE DENOVO TAKING THE PAST HISTORY OF THE ASSESSEE AND IF IT IS SO WARRANTED THAT COMPARISONS HAVE TO BE RESORTED TO THEN FULL FACTS OF THE COMPARABLE CONCERNS SHALL BE CONFRONTED TO THE ASSESSEE AND TH E ASSESSEE ACCORDINGLY SHOULD BE GIVEN A REASONABLE HEARING. THE ASSESSEE SHALL ALSO BE AT LIBERTY TO LEAD EVIDENCE IN SUPPORT OF I TS CLAIM WHICH THE AO SHALL CONSIDER AND PASS A SPEAKING ORDER IN ACCORDANCE WI TH LAW. ACCORDINGLY, BOTH THE ASSESSMENT ORDER AND THE IMPUGNED ORDER AR E SET ASIDE AND THE ISSUE IS RESTORED TO THE AO DENOVO. THE GROUNDS OF THE ASSESSEE AND THE ITA NOS. 5717, 5662, 5714 & 5933/D/2010 7 DEPARTMENT ARE ALLOWED FOR STATISTICAL PURPOSES. T HE SAID ORDER WAS PRONOUNCED IN THE PRESENCE OF THE PARTIES ON THE DA TE OF HEARING ITSELF. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE AND RE VENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. THE STAND OF THE ASSESSEE AND THE DEPARTMENT IN ITA NO. 5714/DEL/10 & ITA NO. 5933/DEL/10 IS IDENTICAL AS I T IS URGED THAT IDENTICAL GROUNDS HAVE BEEN RAISED. 10. A PERUSAL OF THE RECORD SHOWS THAT THE RELEVAN T FACTS ARE THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERATION RETURNED A N INCOME OF RS. 2,09,390/-. THE AO OBSERVED THAT THE ASSESSEE FIRM IS ENGAGED IN TRADING OF TIMBER. EXCEPT A FEW LOCAL PURCHASES MOST OF TH E PURCHASES WERE FROM SINGAPORE. THE ASSESSING OFFICER OBSERVED AS PER T HE PURCHASE BILLS THAT DIFFERENT VARIETIES WERE IMPORTED THE DESCRIPTION A ND QUALITY HAD BEEN MENTIONED THERE. HOWEVER, THE SALE BILLS DID NOT R EFLECT THE SAME DESCRIPTION AND QUALITY. HENCE, HE WAS OF THE VIEW THAT THE SALE BILLS COULD NOT BE CO-RELATED TO THE PURCHASE BILLS THE TRADING RESULTS AS SUCH WERE CONSIDERED TO BE NOT VERIFIABLE. FURTHER SINCE STO CK REGISTER DID NOT CONTAIN QUALITY WISE DETAILS OF TIMBER THE VALUATION OF OPE NING STOCK AND CLOSING STOCK WAS CONSIDERED TO BE UNVERIFIABLE. THE AO AT PAGE 8 ACCORDINGLY, MAKING COMPARISON WITH SAME LOCAL CONCERNS AS IN TH E EARLIER APPEAL ESTIMATED GP @ 4.9%. IN APPEAL THE SAME WAS REDUCE D TO 4%. AGGRIEVED BY THIS BOTH THE ASSESSEE AND THE DEPARTMENT ARE IN APPEAL. IT IS SEEN THAT THE ASSESSEE IN ITS REPLY AT PAGE 9 PARA 2 CONTENDE D BEFORE THE AO THAT AFTER PURCHASING THE ROUND TIMBER LOGS FROM THE FOR EIGN BASED PARTIES AND TRANSFERRING THE SAME FROM THE PORT PREMISES TO THE GODOWNS AT GANDHIDHAM, THE TIMBER LOGS ARE SAWN ON THE MACHINE S SET UP FOR THIS PURPOSE AND THE QUALITY OF THE MATERIAL FROM ANY PA RTICULAR ROUND LOG WOULD DEPEND UPON THE QUALITY RECEIVED AFTER SAWING AND A S PER PARA 3 IT WAS STATED THAT FOR A LAYMAN IT IS NOT POSSIBLE TO IDEN TIFY THE QUALITY OR GRADE OF ITA NOS. 5717, 5662, 5714 & 5933/D/2010 8 ANY TIMBER AFTER SAWING. AS PER PARA 6 IT WAS CONT ENDED THAT IN THE TIMBER BUSINESS IT IS NOT POSSIBLE TO MAINTAIN ITEM WISE D ETAILS AS AFTER SAWING IN DIFFERENT SIZES IT IS RECOGNIZED AS TIMBER LIKE WIS E AS IN THE TRADE OF MARBLE PURCHASED AND SOLD IT IS DESCRIBED AS MARBLE THE DA Y TO DAY STOCK REGISTER IS MAINTAINED AND SINCE THE ASSESSEE IS DEALING ONL Y IN ONE SINGLE ITEM AS PER PARA 8 PAGE 11 OF THE ASSESSMENT ORDER IT WAS C ONTENDED THAT THE QUANTITY OF ALL WOOD PURCHASED AND SOLD IS SHOWN IN CUBIC METERS. THE COMPARISON WITH THE PARTIES SOUGHT TO BE MADE BY TH E AO WAS QUESTIONED AND ON THE GROUND THAT THE FACTS WERE NOT KNOWN WHE REAS THE ASSESSEE HAS DEALT WITH HIGH-SEAS SALES AS PER PAGE 12 PARA 12 IT WAS QUESTIONED WHETHER THE COMPARABLE CASES HAVE ANY HIGH-SEAS SAL ES WHICH WERE IN LESSER QUANTITY OR NOT. AS SUCH AS PER PARA 13 IT WAS SUBMITTED THAT THE ASSESSEES OWN HISTORY WOULD BE MORE RELEVANT. THE FAILURE ON THE PART OF THE ASSESSEE IN NOT MAINTAINING STOCK REGISTER IT W AS STATED CAN BE A GROUND FOR SUSPICION HOWEVER, IF EXPLANATION OF THE ASSESSEE THAT IT IS NOT PRACTICAL OR FEASIBLE IN THE LINE OF BUSINESS IS TO BE CONSIDERED. THE REASONS FOR ACCEPTING OR REJECTION HAVE TO BE GIVEN IT HAS BEEN STATED THEREIN THAT THERE MUST BE SOMETHING MORE THAN SUSP ICION BEFORE THE AO RESORTS TO ESTIMATION. 11. ACCORDINGLY, IT IS SEEN THAT ON A PERUSAL OF TH E ASSESSMENT ORDER AND THE IMPUGNED ORDER THE FACTS QUA THE SPECIFIC ASSES SEE NEED TO BE TAKEN INTO CONSIDERATION. ACCORDINGLY FOR THE REASONS GI VEN IN ITA NO. 5717/DEL/2010 & ITA NO. 5662/D/2010 THE ISSUE IS RE STORED BACK TO THE FILE OF THE AO WITH IDENTICAL DIRECTION. THE AO SHALL D ECIDE THE SAME IN ACCORDANCE WITH LAW BY WAY OF THE SPEAKING ORDER. THE ASSESSEE HEREIN ALSO SHALL BE AT LIBERTY TO PLACE EVIDENCE IN SUPPO RT OF ITS CLAIM. AS SUCH GROUNDS RAISED BY THE DEPARTMENT AND THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 5717, 5662, 5714 & 5933/D/2010 9 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE AND T HE DEPARTMENT ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 31.01.2012. SD/- SD/- (K.D. RANJAN) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31.1.12 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR ITA NOS. 5717, 5662, 5714 & 5933/D/2010 10