C I T vs. GYAN CHAND AJMERA

(1) DB INCOME TAX APPEAL 500/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT D.B. INCOME TAX APPEAL NO.500/2009 COMMISSIONER OF INCOME TAX, JAIPUR-II, JAIPUR Vs. SHRI GYAN CHAND AJMERA DATE: 19.04.2012 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.B. Mathur with Mr. Nikhil Simlote, for the appellant. **** Heard the learned counsel for appellant. The Assessing Officer vide its assessment order dated 28.12.2007, invoked the provisions of Section 145(3) of the Income Tax Act and made a trading addition of Rs.20,33,385/- to the returned income. Being aggrieved with the same, an appeal was preferred by the Assessee before the Commissioner of Income Tax(Appeals)-II, Jaipur who reversed the findings of Assessing Officer and deleted the trading addition made in the returned income, by discussing the matter in detail. The relevant para of the order of Commissioner of Income Tax(Appeals) i.e. Para 1.3 is reproduced as under:- “I have considered facts of the case and arguments taken by

(2) DB INCOME TAX APPEAL 500/2009 Sh. Nuhal quite carefully. It is a fact that no defect could be pointed out by the A.O. in the audited books of the appellant. Further,

when

lottery

wise quantity details were submitted for purchases, sales, sales return and net sales in the assessment proceedings vide letter dated 19.12.2007 then in those details the A.O. could not point out any defect. Considering such factual position the rejection of books of accounts by assessing officer after invoking provisions of S.145 (3) of I.T. Act cannot be approved. Without prejudice to this it is seen that the G.P. shown by the appellant was better as compared to last year and Hon'ble Rajasthan High Court in the case of Kansara Bearing Pvt. Ltd. v/s ACIT 270 ITR 235 has held that the last year's profit declared by assessee is the best guide for application of profit rate and when the G.P. shown in the last year was better and assessing officer has not given any comparable case for higher G.P. then his action to make the trading

addition

cannot

be approved. Further, he has adopted the net profit rate by compelling the net profit shown by the son of appellant in A.Y.1996-97 and A.Y.1997-98 and after that in A.Y.2001-02 Hon'ble ITAT Jaipur Bench in the case of Manish Ajmera has upheld the G.P. rate shown of 1.43%. Further, the A.O. could not point out that any of the expenditure debited in P&L A/c was fictitious or inflated. Under these circumstances making trading addition on the basis of net profit instead of gross profit also cannot be approved. With this discussion

the

corresponding trading addition as made by A.O. of Rs.20,33,385/- to the returned income is hereby deleted.” Thereafter, the Revenue preferred an appeal before the Income Tax Appellate

(3) DB INCOME TAX APPEAL 500/2009 Tribunal Jaipur Bench 'A' Jaipur, which was dismissed vide order dated 13.02.2009. Hence, the Revenue has preferred the present appeal before this Court. From the assessment order, it is clear that the matter was decided on the basis of the case of Shri Manish Ajmera. During the course of arguments, the learned counsel for Revenue fairly and frankly admitted that the appeal preferred by the Revenue in the case of Shri Manish Ajmera, has been dismissed. The trading addition in the present case, while rejecting the books of accounts, is based on facts, therefore, in our view, questions involved in the present case are relating to questions of facts and there is concurrent finding of fact by the Commissioner of Income Tax(Appeals) as well as Income Tax Appellate

Tribunal,

which

cannot

be interferred with by this Court. An income tax appeal can be admitted only on substantial questions of law, but in our view, no substantial question of law is involved in the present appeal. Hence, the appeal is dismissed in limine. (MAHESH BHAGWATI),J. (NARENDRA KUMAR JAIN-I),J. /KKC/

(4) DB INCOME TAX APPEAL 500/2009 Certificate: All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. KAMLESH KUMAR P.A.