Chattisgarh High Court
The Assistant Commissioner Of Income ... vs Shri Roopchand Tharani on 1 November, 2011
Author: Satish K.Agnihotri
Bench: Satish K.Agnihotri
HIGH COURT OF CHATTISGARH AT BILASPUR
TAX CASE No 58 of 2010
The Assistant Commissioner of Income Tax Raipur
...Petitioners
versus
Shri Roopchand Tharani
...Respondents
! Shri Rajeev Shrivastava Standing Counsel for the appellant
^ Shri S Rajeshwara Rao Advocate for the respondent
CORAM: Honble Shri Satish K Agnihotri & Honble Shri Radhe Shyam Sharma JJ
Dated: 01/11/2011
: Judgement
O R D E R
(Passed on 01st day of November, 2011) APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT. Per Satish K.Agnihotri, J.
1. The instant appeal is preferred by the Revenue against the order dated 17.09.2009 passed by the Income Tax Appellate Tribunal, Bilaspur Bench, Bilaspur (for short `the Tribunal') in I.T.A No. 22/BLPR/2009.
2. The appeal of the Revenue was admitted on the following substantial questions of law:
"Whether the ITAT was right in upholding the order of CIT (Appeals) wherein it was held that the AO rejected the books of Accounts of the assessee maintained and audited by the Chartered Accountant without pointing out any mistake in the books? "
3. The facts, in brief, are that the Assessing Officer (for short `the AO'), while processing the return under section 143(1) of the Income Tax Act, 1961 (for short `the Act, 1961'), issued notice to the assessee under section 143(2) and 142(1) of the Act, 1961. The assessee appeared through Advocates and Chartered Accountant and produced the books of account. The AO, holding that the assessee maintained books of accounts/documents, thought it was claimed to be maintained on day to day basis but not fully verifiable. Thus, the NP rates for assessee was worked out to 3% considering the average NP disclosed at Bhatapara by other assessees. The difference of NP 2.21% worked out for Rs. 20,62,465/- was added back to the assessee's income, vide assessment order dated 31.10.2008.
4. Being aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) {for short `the CIT(A)}. The CIT(A), by order dated 10.03.2009, held as under:
"3.2..The AO did not point out any specific mistake in the books of accounts maintained. The GP was shown at 3.89% in the preceding year on total turnover of Rs. 9.14 crores and NP at 0.55%, whereas this year on total turnover of Rs. 9.33 crores, GP was shown at 4.59% and NP at 0.79%. Thus, the trading results have shown increased trend. The yield of different products remained at the same rates as in the preceding year. The AO did not point out specific mistake warranting application of the provisions of section 145(3). Therefore, the addition is not reasonable and hence deleted."
5. Thereagainst, the Revenue preferred an appeal before the Tribunal. The Tribunal, after having considered all the aspects of the matter, came to the conclusion that the order passed by the CIT(A) was just and proper as the AO did not specify any mistake and had further not pointed out any defect. Thus, the order passed by the CIT(A) was upheld and the appeal filed by the Revenue was dismissed.
6. We have perused all the documents produced before this Court. We found that it is purely a question of facts and the CIT(A) as well as the Tribunal have rightly recorded that the AO, without pointing out any specific mistake in the books of accounts have held that the books of accounts and other documents were not fully verifiable. The finding of the AO was rightly held as erroneous. There is no perversity in appreciation of facts.
7. The substantial question of law arises for consideration only if there is perversity in the finding of fact. The Supreme Court, in Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi1, held as under:
"23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)".
8. This Court, in Commissioner of Income Tax, Raipur v.Shri Mangalchand Parekh, GE Road, Rajnandgaon2, observed as under:
"30. In view of the foregoing, we are of the considered opinion that the findings recorded by the CIT (A) and affirmed by the ITAT are based on proper appreciation of facts and are not perverse, being correlated with each and every transaction. Thus, the issue is purely question of facts. No question of law, more so substantial questions of law, as aforestated, arise in the facts of the case.
31. As an upshot, both the appeals being bereft of merit, are liable to be and are hereby dismissed."
9. The instant appeal involves only on the question of facts, as the facts have been determined by the CIT (A) and affirmed by the Tribunal. Thus, it is a question of facts alone and no question of law, much less substantial question of law, arise in this case for consideration under section 260-A of the Income Tax Act.
10. The appeal is accordingly dismissed. No order asto costs.
JUDGE