2009 (11) TMI 44 - HC - Income Tax

Rejection of books of account - The Assessing Officer rejected the books of account and assessed net profit @ 10% of the turn over. On appeal, net profit rate was reduced to 9.25%. The Department filed appeal before the Tribunal and the assessee filed cross-objections. The appeal of the Department was dismissed but cross-objections of the assessee were not considered on merits, while dismissing the appeal of the Department. The assessee applied for recalling of the order and for decision of cross-objections on merits. ITAT rejected the prayer held that - assessee submits that while deciding the appeal of the Department, the Tribunal only considered whether reduction of the net profit rate from 10% to 9.25% was justified or not and not the question whether said rate should be further reduced to 6.29%, as sought by the assessee - From perusal of the impugned order, it is clear that the view point of the assessee put forward by way of cross-objections was not considered on merits. Accordingly, question referred has to be answered in favour of the assessee and against the Department. The cross-objections of the assessee are, thus, required to be heard and decided on merits - Decided in favor of assessee

Summary

Issues:
1. Whether the Tribunal was right in dismissing the cross objections filed by the assessee regarding the rate of profits?
2. Whether the cross-objections of the assessee should be heard and decided on merits?

Analysis:

Issue 1:
The Income Tax Appellate Tribunal referred a question of law under Section 256(1) of the Income Tax Act, 1961, regarding the dismissal of cross objections by the assessee. The Tribunal had earlier considered the rate of profits and upheld it, leading to the dismissal of the Department's appeal. However, the cross-objections of the assessee were not considered on merits. The assessee argued that the Tribunal only assessed the reduction of the net profit rate from 10% to 9.25% and did not address whether the rate should be further reduced to 6.29%, as requested by the assessee. Citing Hari Shankar Rastogi versus Sham Manohar, the assessee contended that the scope of cross objections should have been considered.

Issue 2:
Upon hearing both parties, the Court found that the assessee's viewpoint presented through cross-objections was not evaluated on merits in the impugned order. Consequently, the Court ruled in favor of the assessee and against the Department. The Court directed that the cross-objections of the assessee should be heard and decided on merits. The reference was disposed of accordingly by the Court.

In conclusion, the judgment addressed the issue of dismissing cross objections by the assessee and emphasized the necessity to consider and decide on the merits of such objections. The Court's decision highlighted the importance of evaluating all aspects raised by the parties involved in the appeal process to ensure a fair and comprehensive assessment of the case.