Lakham Damjibhai Bhensala, Veraval V. Dy. Commr. Of Income Tax, Cen. Cir.-2, , Rajkot

ITSSA 58/RJT/2018

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4642 (ITAT-RAJKOT)
• Duration Of Justice: 5 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-12-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-12-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 08-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Salary income; Corroborative evidences; Assessment record; Retraction
• Section: 145; 132; 69C; 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted Through Virtual Court) Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member Shri Lakham Damji Bhensala, Opp. Kurshna Krupa Bunglow, Street No. 6, Khadkhad, Veraval PAN No: ABVPB5860F (Appellant) Vs The Dy. CIT, Central Circle-2, Rajkot (Respondent) Assessee Represented: Shri Mehul Ranpura, A.R. Revenue Represented: Shri Shramdeep Sinha, CIT-DR Date of hearing : 05-12-2023 Date of pronouncement : 15-12-2023 आदेश/ORDER PER BENCH:- These appeals are filed by the Assessee as against common Appellate order dated 16.02.2018 for the Assessment Years 2009-10 to 2013-14 and Appellate order dated 25.01.2018 for the Assessment Year 2014-15 passed by the Commissioner of Income Tax (Appeals)-11, Ahmedabad arising out of the assessment orders passed under section 143(3) r.w.s. 153A of the Income Tax Act, IT(SS)A Nos: 57 to 61/Rjt/2018 & IT(SS)A No: 56/Rjt/2018 Assessment Years: 2009-10 to 2013-14 & 2014-15 I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 2 1961 (hereinafter referred to as ‘the Act’). Since the issues involved herein are common the same are disposed of by this common order. 2. The brief facts of the case is that the assessee is an individual and engaged in the business of processing and exporting of sea foods through his Proprietary concern M/s. Gopal Sea Foods. The assessee also engaged in the business of manufacturing of ice bars through his proprietary concern M/s. Khodiya Ice Factory. The assessee was filing his original Returns of Income regularly. There was a search action u/s. 132 of the Act in the case of the assessee’s group, residential premises of its General Manager namely Mr. Inayatalikhan Pathan. During the course of search in the case of Mr. I.A. Pathan, statement was recorded u/s. 132(4) that he is getting total salary of Rs. 3 Lacs per month from the assessee for the past six years, out of which Rs. 50,000/- was received in cheque and balance Rs. 2.50 Lacs in cash. Based on the above statement, cash payment of Rs. 2.50 Lacs per month is treated as the unaccounted salary payment made by the firm to its General Manager and added as the income u/s. 69C of the Act for the Assessment Years 2009-10 to 2013-14. For the Assessment Year 2014-15, the Assessing Officer made an addition of Rs. 25,77,177/- being the undisclosed income of the assessee and demanded tax thereon. 3. Aggrieved against the assessment orders, the assessee filed appeals before Commissioner of Income Tax (Appeals.). The Ld. CIT(A) confirmed the unaccounted salary paid to its General Manager of Rs. 1.5 Lacs for the Assessment Year 2009-10 and Rs. 3 I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 3 Lacs for the Assessment Years 2010-11 to 2013-14 by observing as follows: 7.2 Facts of the case, submission of the appellant and assessment order have been carefully considered. The key thing to be noted is that, nothing incriminating has been found either from the possession of the appellant nor from the possession of the employee. Barring the statement of the employee, nothing worthwhile is in the possession of the AO to make the addition. Even the statement of the employee was retracted subsequently. This retraction was made with due justification. While passing order in appeal No. CIT(A)-11/CC-2/288-R to 294-R/Raj/16-17 in the case of Inayatalikhan Pathan, the following finding was given by the undersigned, which is reproduced below:- " Para-6 .....The appellant is an employee of Gopal Fisheries group. He has also been covered under search and seizure action on 3.3.2015 along with Gopal Fisheries group. During the course of search, statement u/s. 132(4) was recorded in which he stated that he is getting salary of Rs 3 lakh per month i.e, Rs 50,000 by cheque and Rs 2.5 lac by cash. However, during post search proceedings, this deposement was retracted by way of affidavit dated 4.1.2016. The AO, in the assessment order, has held the retraction as an after thought because it is filed about 18 months after the statement given. The appellant contended that the statement was recorded under duress and coercion, for which he has cited following discrepancies. a. That the figure of salary mismatches between question no. 5 and 34 b. At one plac of his statement there is record of borrowed cash of Rs 3 lacs. c. There is mismatch of names of the persons delivering cash to the appellant. d. In replying to the question as to the maintenance of any cash salary register (Q No. 16), the appellant stated that Shri Hasmukhbhai Dav keeps salary register for recording the cash salary given and such register is kept at the office premises of M/s, Gopal Sea Foods. During the course of search at the office premises of M/s. Gopal Sea Foods, salary register for the period November 2014 to February 2015 was seized and inventoried at Annexure A- 16, wherein salary given to the appellant is shown at Rs 50,000 per month, e. There is also discrepancy about the modus operandi of business in two different occasions in the same statement. 6.1 The appellant contended that he was made to depose as per the terms of the authorized officer. He also argued that, he was to spell out his salary particulars for six years, whereas, he was employed in the said firm for last 10 years. Therefore the deposement was made tailor made, in order to I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 4 assess the six years involved in the search relevant proceedings. Citing all the above incidences, the appellant had retracted his statement. The AR has also cited various judicial pronouncements in support of his arguments justifying the retraction of deposement made during search. I consider the action of the AO to reject the retraction filed by the appellant is justified, as it was filed too late i.e., after 18 months of the date of statement recorded. I also did not find merit in the contention of the appellant that the statement was recorded under pressure and duress, The statement was recorded during the search in the presence of two independent witnesses and it has been signed at the end that statement has been given in sound mental condition, without duress or pressure. Thus, this contention of the appellant is rejected. But it is a fact that there are inconsistencies in the statement given by the appellant. In the statement recorded on 3.3.2015 during search, the appellant stated while replying question no. 5 that he is getting salary of Rs 3,00,000 p.m. for last six years out of which Rs 50,000/- is given by cheque and Rs 2.5 takh in cash, in the same statement, whle replying question No 34, the appellant stated that he gets Rs 50,000 by cheque and Rs 1,53,000/- by cash. In the same statement, the appellant stated two different figures as salary received in cash i.e., Rs 2 lakh & Rs 1.53 lakh. Moreovr, in the FY 2008-09 i.e., related to AY 2009-10 the appellant had shown salary income at Rs 2,85,000/- which comes to Rs 23,750/- p.m. by cheque. This also prove that the statement given about receipt of salary in cheque is also not correct. Although the statement given u/s. 132(4) is an admissible evidence, but if there are contradiction in the statement itself, then such statement has to be relied upon carefully. The appellant cited several other inconsistencies in the statement as mentioned in the submission. The appellant also relied upon several case laws I which it has been held that the additions made only on the basis of statement u/s. 132(4) without corroborative evidence is not justified. In the appellant's case, the AO made the additions only on the basis of statement and no evidence was found during the search to show any cash payment as salary to the appellant. During the search, cash of Rs 3,53,000/- and gold jewellery worth Rs 2,69,034/- was found. Except this, no asset was found owned by the appellant or his family members. During the search at the business premises of Gopal Group of cases, several evidences showing cash expenditure & receipts were found. In all these evidences, there is no document or single entry, which shows cash salary payment to the appellant. Even at the residenceof the appellant, no document or asset was found, which prove receipt of such high amount as cash. In such situation, the maximum additions made only on the basis of statement, which itself has several inconsistencies cannot be considered as justified, thus, the additions of Rs 30,00,000/- p.a. for all these years are found excessive. There are in consistencies about the amount received in cash but there is consistency that some amount was received in cashes no evidence was found showing salary receipt in cash, it is reasonable to estimate that the appellant received Rs 1.5 lakh (Rs 2,85,000 shown by cheques p.a) salary in cash in FY 2008-09 related to AY 2009-10 and Rs 3 lakh (Rs 6,00,000/- shown by cheque p.a.) in cash for AY 2010-11 to 2015-16 each. Hence, additions to the extent of Rs 1.5 lakh for AY 2009-10 and Rs 3 lakh for AY 2010-11 to 2015-16 for each assessment year are confirmed. Remaining additions are deleted.” I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 5 7.2.1 Now since the above additions are confirmed partly in the hands of the employee Shri Inayatalikhan Pathan, the same gets also confirmed to this extent in the hands of the assessee. Hence, additions to the extent of Rs 1.5 lakh for AY 2009-10 and Rs 3 lakh for AY 2010-11 to 2013-14 for each assessment year are confirmed. Remaining additions are deleted. This ground of appeal is partly allowed. 4. Aggrieved against the above addition, the assessee is in appeal before us in IT(SS)A Nos. 57 to 61/Rjt/2018 raising the following Grounds of Appeal: 1.0 The grounds of appeal mentioned hereunder are without prejudice to one another. 2.0 The learned Commissioner of Income-tax (Appeals)-l 1, Ahmedabad [CIT(A)] erred on facts as also in law in retaining addition of Rs. 1,50,000/- made on account of alleged unexplained salary paid to employee namely Shri Inayatalikhan A. Pathan. The addition retained is totally unjustified and uncalled for and deserves to be deleted and may kindly be deleted. 3.0 The learned CIT(A) erred on facts as also in law in retaining addition of Rs.1,20,500/- out of total addition of Rs. 6,02,500/- made on the alleged ground of unaccounted sale of Wires. The addition retained is totally unjustified and uncalled and may kindly be deleted. 4.0 Your Honor's appellant craves leave to add, amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal. 5. Ld. Counsel Mr. Mehul Ranpura appearing for the assessee submitted before us that there is no seized material as regarding salary payment deemed to be paid by way of cash to the General Manager Mr. InayatAlikhan Pathan, except statement recorded by the Investigating Authorities, during the course of search. Further Ld. CIT(A) also held that during the course of search in the premises of Mr. I.A. Pathan, cash of Rs. 3,53,000/- and gold jewellery worth of Rs. 2,69,034/- were only found. There is no other asset found or owned by the Mr. I.A. Pathan or his family members. During the search action in the business premises of the assessee firm namely Gopal Group, there is no incriminating material found, except salary register seized by the department. Though Ld. CIT(A) in the I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 6 case of Mr. I.A. Pathan confirmed the addition. On further appeal by the assessee before this Hon’ble Tribunal in IT(SS)A Nos. 38 to 43/Rjt/2018 and 68/Rjt/2018 vide order dated 01.02,2022, Co- ordinate Bench of this Tribunal deleted the additions on the ground that no incriminating materials was found or seized by the Revenue. But additions were made based on statement recorded during the course of search, without corroborative evidences. Thus Ld. Counsel pleaded following the Co-ordinate Bench decision of this Tribunal to delete the addition made on account of payment alleged unaccounted salary in the hands of the assessee. 5.1. The Ld. Counsel not pressed Ground No. 3 namely retaining addition of Rs. 1,20,500/- on account of unaccounted sales of wires. Hence this ground is dismissed as not pressed. 6. Per contra, Ld. CIT-DR Shri Shramdeep Sinha appearing for the Revenue strongly supported the order passed by the Assessing Officer. The Ld. CIT-DR respectfully submitted that the decision made by the Co-ordinate Bench of this Tribunal in the case of Mr. I.A. Pathan is without properly appreciating the statements recorded u/s. 132(4) of the Act during the course of search by the department. Therefore the ratio of the decision is not to be followed in the present assessee’s case and thereby requested to uphold the orders passed by the Lower Authorities. 7. We have given our thoughtful consideration and perused the materials available on record including the Paper Book and case laws filed by the assessee. It is seen from assessment records that I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 7 there is no mention about seized material as relating to the additions made on account of unexplained salary expenses u/s. 69C of Rs. 30 Lacs for each assessment years. The above addition also made based on the statement recorded u/s. 132(4) in the case of Mr. I.A. Pathan during the course of search in his residential premises on 03.03.2015. The relevant statements recorded from Mr. Inayatalikhan Pathan are which are more relevant reads as follows: “.....Q: 16- In response of previous questions about payment of salary to you and other staff of M/s. Gopal Sea Food, it is stated by you that salary paid to you and other staff in cash. Please state the person who pay to you and staff salary in cash. Please also explain about maintenance of any cash salary register or anything else by him. In which place such register is being kept? Ans:- Shri Hashmukhbhai Dave, working in capacity of clerk use to pay salary in cash. He keeps salary register with him which is kept in office at Gopal Sea Food, 2 nd , GIDC, Veraval. As regards the residence address of Hashmukhbhai Dave it is not know me. However, I have contact no with me. His contact no. is – 9275077675. ................. Q: 34- In response to earlier question asked you have said that I get Rs. 2.50 lacs salary per month in cash from the concern where you work. Keeping this in mind you are asked to explain why all salary taken in past 06 years in cash be treated as your unaccounted income. Please response? Ans:- In this connection I would like to clarify that I get Rs. 1,53,000/- in cash and Rs. 50,000/- in cheque as salary per month from my concern. Rest amount I get from my company as & when required basis.” 7.1. In answer to Question No. 16, Mr. I.A. Pathan stated that he received cash payment in salary from one Shri Hashmukhbhai Dave, who is working as Clerk in assessee’s firm M/s. Gopal Sea Foods at Veraval. His Cell Phone Number was also informed to the Investigating Authorities, who was maintaining the salary register. In the statement recorded in Question No. 34 to Mr. I.A. Pathan that he said to get Rs. 2.50 Lacs salary per month in cash and asked to I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 8 explain why the same received in past six years be treated as his unaccounted income. 7.2. In reply Mr. Inayatalikhan Pathan clarified that he get Rs. 1,53,000/- in cash and Rs. 50,000/- in cheque as salary from the concerned Firm. Rest amount he get from the company as and when required. Thus it is seen from Question No. 16 Mr. I.A. Pathan was asked to explain the payment of salary and in reply he admitted receipt of salary in cash from Shri Hashmukhbhai Dave and given his Cell Phone Number for further verification. However it appears no investigation is made with Shri Hashmukhbhai Dave who is working as a Clerk in the assessee’s firm. Further the salary register of M/s. Gopal Sea Foods was seized by the department as Annexure-A-16 which is having 16 pages (which is available in Paper Book at Page Nos. 31 to 64). On perusal of the same, there is no entry regarding cash payment of salary. Thus based on the statement recorded during the course of search in the case of Mr. I.A. Pathan the above addition is made by the Assessing Officer, which is without corroborative evidences is not sustainable in law. 8. After considering the facts of the case in detail, the Co-ordinate Bench of this Tribunal in the case of Shri Inayatalikhan Pathan in IT(SS)A Nos. 38 to 43/Rjt/2018 has held as follows: “....8. We have heard both the parties and perused all the relevant materials available on record. It is pertinent to note that during the search and seizure operation, the Revenue has not found any incriminating documents or any cogent document or evidence relating to the assessee directly or indirectly. The addition made by the Assessing Officer as relates to unaccounted salary does not sustain in the eyes of law as the salary vouchers which was presented before the Assessing Officer clearly shows the actual salary paid to the assessee which was verifiable from the records of the assessee's bank account and other relevant documents. I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 9 Merely relying on the statement which the Assessing Officer as well as the CIT(A) though admitting that the said statement is vague and inconsistent cannot be the basis for addition. The reliance of the decision in case of Saumya Construction (supra) by the Ld. AR is apt in the present case. ................................ In the present case also, no incriminating documents were found and the only basis for the addition was that of statement which was not confronted to the assessee at all. Thus, assessment itself is not just and proper. Therefore, the additional ground raised by the assessee for Assessment Years 2009-10 to 2014-15 is allowed and the addition does not sustain in all these appeals. 9. In the result IT(SS)A Nos.38 to 43/RJT/2019 for Assessment Years 2009-10 to 2014-15 are allowed.” 8.1. Though the Ld. CIT-DR argues that the order passed by this Co-ordinate Bench of this Tribunal is not correct in law, however he could not place on record, whether the same was challenged by the Revenue before the High Court of Gujarat if so, what is the present status of the case. Further we do not find any incriminating material seized on account of salary payment in the premises of the assessee as well as in the residential premises of Mr. Inayatalikhan Pathan. Therefore the addition made based only on the statement recorded on unaccounted salary expenses is liable to be deleted. Thus we do not find any infirmity in the orders passed by the Co- ordinate Bench. For the reasons stated above, the Grounds raised by the assessee on the addition made on account of undisclosed salary expenses are hereby allowed. 9. In the result, the appeals filed by the Assessee in IT(SS)A Nos. 57 to 61/Rjt/218 are hereby allowed. I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 10 IT(SS)A No. 56/Rjt/2018 for A.Y. 2014-15. 10. The brief facts of the case is that pursuant to the search action in the business premises of the assessee and in response to the notice issued u/s. 153A, the assessee offered additional income of Rs.37,00,000/-. However during the course of assessment proceedings, the Ld. A.O. estimated the gross profit @ 10% of the unaccounted receipt of Rs. 6,27,71,765/-, thereby estimated on unaccounted income of the assessee as Rs. 62,77,177/-. After adjusting undisclosed income offered by the assessee of Rs. 37,00,000/- balance amount Rs. 25,77,177 added as the undisclosed income of the assessee. 11. Aggrieved against the assessment order, the assessee filed appeals before Commissioner of Income Tax (Appeals) and submitted as follows: (a) That the appellant had to incur various indirect expenses such as salaries to staff, fuel, stationary, telephone, transportation etc and reference of all such expenses are forming part of seized materials (b) That the appellant has offered additional income of Rs. 37,00,000/ which in terms of the profitability ratio to the alleged unaccounted sales works out at 5.89%. As against this, Net Profit as per audited financial statements is 1.75% and therefore, the appellant has already offered the additional income on higher side. (c) As per the seized materials and as quantified by the AO, the unaccounted receipts works out to Rs. 6,27,71,765/- and unaccounted purchases & expenses at Rs. 5,90,30,647/-. The difference which tantamount to profit, is Rs. 37,41,118/-, against which, the appellant has declared ad-hoc Income of Rs. 37,00,000/-. Thus the estimation is near and about perfect. I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 11 (d) That, when both unaccounted receipts and unaccounted purchase/expense are available on record, the question of estimation does not arise. (e) That the provisions of section 145 has not been invoked and books have not been rejected, which inherently means that the book result is acceptable to the AO. 11.1. On considering the above submissions of the assessee, Ld. CIT(A) estimated the gross profit @ 7.5% by observing as follows: “....5.2 So far as finding of the AO that the appellant's books shows GP of 12.68% is concerned, the AR contends that, the formula adopted by the AO consists of export oriented benefits such as (1) VKUY License Income, (ii) Duty drawback income and (iii) exchange rate difference income. Since, such income is unlikely to be realized in unaccounted local sales of fishes, the ratio of Gross Profit as per books of account cannot be applied to the unaccounted sales of local fishes. If such items are excluded, the GP as per books of account works out at Rs. 3,20,60,015/- which is 5.12% of the turnover. Against this, the appellant had worked out profit @ 5.89% of the unaccounted sales, 5.3. From the above it can be seen that, there are sufficient reasonable justification for estimation of GP @ 5.89% by the appellant. However, it is also an accepted fact that, various expenses incurred might have already been recorded in the books and hence, the GP on unaccounted sale is always on the higher side. In the case of various other firms / persons of the same group, wherein evidence of unaccounted expenses were found, I had estimated the GP at 7.5%. Taking a similar cue (as the nature of the appellant's business is same as to its peers), I adopt GP of 7.5% on unaccounted sales. This works out to Rs 47,07,882/-. Against this, the appellant has, offered income of Rs 37,00,000/-. The balance amount of Rs 10,07,882/-stands sustained. This ground of appeal is partly allowed.” 12. Aggrieved against the above addition, the assessee is in appeal before us raising the following Grounds of Appeal: 1.0 The grounds of appeal mentioned hereunder are without prejudice to one another. 2.0 The learned Commissioner of Income-tax (Appeals)-11, Ahmedabad [CIT(A)] erred on facts as also in law in retaining addition of Rs. 10,07,882/- out of total addition made of Rs. 47,07,882/- by estimating gross profit @ 7.5% against the Gross profit estimated by appellant 5% on turnover. The profit estimated by the ld. CIT(A) is on higher side which may kindly be restricted to 5% as estimated by the appellant and oblige. Thus I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 12 the addition retained is totally unjustified and uncalled for and deserves to be deleted and may kindly be deleted. 3.0 Your Honor's appellant craves leave to add, amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal. 13. Ld. Counsel brought to our notice, the Co-ordinate Bench decision in the case of Smt. Hiraben L. Bhensala in IT(SS)A Nos. 56 & 68-72/Rjt/2018 wherein taking note of the business exigencies in the trade of Fisherman, Co-ordinate Bench of this Tribunal estimated the gross profit @ 5% on unaccounted sales observing as follows: “....We have heard the rival submissions made by the respective parties, we have also perused the relevant materials available on record. It appears that the fishing boat was purchased erected 20 years back for the purpose of fish catching business. By the passage of time after gradual growth and concentration in the business of trading and exports, boat was given to the lower class community. In fact the assessee’s family is not operating the fishing boats for catching but they have deputed people on the ports. It also appears from the statement recorded that the loose papers seized shows fishes purchased by various proprietary trading concerns of the “Gopal Group” from the tandel & khalasis of boats i.e. the person to whom boat is given. It is also the case of the assessee that since the assessee is not individually carrying out any fish catching business the question of unaccounted sells/income earned from such activities does not arise. It was further pointed out that the income earned by such boat operators it(Tandel/Khalasi) from such sale is below the basic exemption limit and therefore no PAN processed or return of income filed by such persons . We have further considered the explanation given by the assessee that a substantial portion of receipts are eroded by the expenses towards generator expenses, grocery and provisions, salary to labours, maintenance of boats, commission to the agents etc. Apart from the wastage and the fish taken by the labourers for their self consumption is also a major factor in reducing the profit margin which seems to be genuine taking into consideration the socio-economic background of the local fishermen and therefore we find force in the argument advanced by the Learned AR for considering the gross profit @ 5% on unaccounted sales. In that view of the matter we dispose of the appeal with the direction upon the Learned AO to calculate the gross profit @ 5% on the unaccounted sales and to pass consequential relief in favour of the assessee. I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 13 5. In the result assesses appeal is partly allowed for statistical purposes” Thus Ld. Counsel pleaded to follow the above order passed by the Co-ordinate Bench and allow the assessee appeal. 14. Per contra, Ld. CIT-DR supported the order passed by the Lower Authorities and requested to uphold the same. 15. We have given our thoughtful consideration and perused the materials available on record. As rightly stated by the ld. Counsel, Co-ordinate Bench of this Tribunal in the case of Smt. Hiraben L. Bhensala (cited supra) in a bunch of cases related to Sea Foods Manufacturers at Veraval. After considering the business exigencies involved in the Sea Foods Trade, Co-ordinate Bench of this Tribunal had estimated the gross profit @ 5% on unaccounted sales. This judgment of the Co-ordinate Bench is passed after this impugned order passed by the Ld. CIT(A). Therefore respectfully following the Co-ordinate Bench decision, we hereby direct the Assessing Officer to estimate the gross profit @ 5% on the unaccounted sales and pass consequential order. 16. In the result, the appeal filed by the Assessee is allowed for statistical purpose. Order pronounced in the open court on 15-12-2023 Sd/- Sd/- (WASEEM AHMED) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 15/12/2023 I.T.(SS)A Nos. 57 to 61/Rjt/2018 &56/Rjt/18 A.Ys.2009-10 to 2013-14 to 2014-15 Page No Shri Lakham Damji Bhensala Vs. DCIT 14 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, राजकोट