1995 (8) TMI 83 - AT - Income Tax

Summary

Issues Involved:
1. Opportunity of being heard to the ITO.
2. Deletion of addition on account of unaccounted cash sales.
3. Adoption of Gross Profit (G.P.) on undisclosed sales.
4. Deletion of addition for unaccounted advance.

Summary:

Issue 1: Opportunity of being heard to the ITO

The Revenue contended that the CIT (Appeals) erred in not granting an opportunity of being heard to the ITO. Upon review, it was found that there was nothing on record to show that the opportunity was denied to the ITO. Consequently, this ground was dismissed.

Issue 2: Deletion of addition on account of unaccounted cash sales

The ITO added Rs. 10,85,003 as unaccounted sales based on loose sheets seized during a search. The CIT (Appeals) deleted this addition, accepting the assessee's explanation that the sales recorded in the loose sheets were accounted for in the books. The Tribunal upheld the CIT (Appeals)'s deletion of the addition, noting that sales cannot constitute undisclosed income if the purchases are genuine. However, the Tribunal directed that the G.P. rate should be applied on the entire sales of Rs. 10,85,003.

Issue 3: Adoption of Gross Profit (G.P.) on undisclosed sales

The CIT (Appeals) directed to adopt the G.P. only on Rs. 2,43,339, which was the difference between the alleged unaccounted sales and reconciled sales. The Tribunal disagreed, holding that the G.P. rate of 2.36% should be applied on the entire unaccounted sales of Rs. 10,85,003.

Issue 4: Deletion of addition for unaccounted advance

During the search, a receipt for Rs. 1 lakh from Shri Rajiv Kapoor was found. The ITO added this amount as income from undisclosed sources. The CIT (Appeals) deleted the addition, accepting the assessee's explanation and supporting documents, including a sworn affidavit from Shri Rajiv Kapoor. The Tribunal upheld the CIT (Appeals)'s decision, finding no infirmity in the deletion of the addition.

Separate Judgment by Judicial Member:

The Judicial Member disagreed with the findings on grounds 2 and 3, arguing that the matter required fresh scrutiny by the ITO. However, the Third Member concurred with the Accountant Member, leading to the majority view that upheld the CIT (Appeals)'s deletion of the addition of Rs. 10,85,003 but directed the application of the G.P. rate on the entire unaccounted sales.

Final Order:

The CIT (Appeals) was justified in deleting the addition of Rs. 10,85,003 made on account of unaccounted cash sales. However, the G.P. rate should be applied on the entire sales of Rs. 10,85,003, and the ITO was directed to apply a G.P. rate of 2.36% on this amount to work out the addition. The appeal was allowed in part.