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TMI Blog1989 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from record and, therefore, the order could be rectified. On perusal of these petitioners, since there appeared that there were certain omissions/mistakes, which required the assistance of both the parties and it was accordingly fixed for hearing for1st Sept., 1989and the parties extensive arguments as regards the mistakes as brought out in the petitioners for paragraphs 11 onwards have been given our very careful considerations. 2. The assessee has summarised the arguments as were raised before the Tribunal at the time of hearing of the appeal in reselect of (a) the method of accounting followed; (b) the observations of the Delhi High Court wherein direction was given or arriving at an independent conclusion, allowing the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 148 of the Act, on which there had been no finding given by the Tribunal. In the petition the assessee further had pleaded that the order of the Tribunal contained reference to the form of return of income prescribed by the rules in which the system of accounting as adopted by the assessee was required to be shown by way of a note, which was not put to the assessee at the time of appeal and had it been so put, the assessee would have brought out the irrelevance of the note and would have brought to the attention of the Tribunal the Bombay High Court ruling in D.R. Dhanwate vs. CIT (1961) 42 ITR 253 (Bom), that a mere note to be appended to in the return of income form could not be held to mean that the assessee had not provided the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee s entire petition is intended for review of the order passed by the Tribunal which is outside the scope of s. 254(2) of the Act. He pleaded that the facts of each case had to be appreciated in itself before proceeding to apply any ruling and merely for the reason that there exists a particular ruling, it does not become an automatic application, for it requires the facts and the circumstances to be identical to the one as was before the Courts. His plea was that the assessee s emphasis is that the disclosure was full as it had shown the income from commission in its P L a/c but it is not so disputed that he had not mentioned anywhere about the system of accounting followed either in the computation of income filed or havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of the method of accounting followed by the assessee and (b) the assessee on his part never brought specifically to the notice of the ITO regarding the method of accounting of commission on receipt basis. The entire effort of the counsel had been that the ITO having the P L a/c on his records, it should be deemed that he was aware of the system of accounting followed by the assessee and that he had examined the same and it was not at all fatal to the assessee s case for not having brought to the ITO s notice specifically about the system of accounting for the duty of the assessee is limited to put the primary and material facts and not lead the ITO, as to how to draw his conclusions. This argument is similar to a sword which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn from requiring the assessee to specify the method of accounting followed in a note during the course of the arguments, but this alone was not the singular factor for drawing of the conclusion that there was failure on the part of the assessee for making full and true disclosure of the primary facts. The purpose of bring out the return of income from in the body of the order was limited to highlight the wrong claim made by the assessee that there as no requirement at all to disclose the method of accounting followed by him which has been clearly so brought out in the paras 9.1 9.2 of the order. The Supreme Court s ratio in Omar Salay Mohamed Sait is clearly a guide to the proposition that the Tribunal must come to its conclusion based o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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