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TMI Blog2011 (4) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce evidence in support of the chart - It is settled law that if a finding of fact is perverse and is based on no evidence, it can be set aside in appeal even though the appeal is permissible only on substantial question of law - Decided in the favour of the assessee by way of remand - I.T.A. No.729 of 2004 - - - Dated:- 25-4-2011 - Mr. Justice Bhaskar Bhattacharya, Justice Sambuddha Chakrabarti, JJ. For the Appellant: Mr. Ananda Sen. For the Respondent: Md. Nizamuddin. Bhaskar Bhattacharya, J.: This appeal under Section 260A of the Income-tax Act is at the instance of an assessee and is directed against an order dated May 5, 2004, passed by the Income-tax Appellate Tribunal, C Bench, Kolkata in I.T. (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed by Gupta Cement Stores varied from 2.54% and 3.92%. Similarly the gross profit rate shown by one Jainco Sales, Varanasi indicated variation of the Profit rates between 3.65% and 3.67%. Similarly, in the case of Ashwarya Trading Co., Gazipur, the gross profit rate was 4.91%. d) The Appellate Authority came to the conclusion that the Assessing Officer had given no reason for estimating the gross profit and that he had not even mentioned about any seized material or evidence or any comparable case on which he was relying for estimating the gross profit rate of 10%. Similarly, the assessee was also askedspecifically to indicate the basis on which the gross profit rate of 7% was estimated and claimed. The assessee s representative wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the assessee was not correct by simply observing that no evidence had been produced for which the assessee s rate of estimation could be accepted when a case like present one it was an accepted principle that in absence of the books of accounts and documents the assessing officer could not take an arbitrary rate of valuation but had to take the net profit rate as disclosed in the return filed in pursuance of the notice issued under section 158BC of the Act and, therefore, the order of the tribunal ignoring the facts as also the law prevailing on the point was perverse? After hearing Mr. Sen, the learned Advocate appearing on behalf of the appellant and Mr. Nizamuddin, the learned Advocate appearing on behalf of the Revenue, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free to arrive at his own finding regarding the gross profit rate but that must also be arrived at based on some authentic materials. We, therefore, find that all the three authorities below arrived at the figure of gross profit rate without giving any cogent reason for discarding the chart of profit rates of different businessman doing similar type of business supplied by the assessee. As an assessing authority, it was the duty of the authorities below to consider the chart of the assessee and to examine its genuineness and for that reason, could also ask the assessee to produce evidence in support of the chart. But the finding of the rate of profit by all the authorities below were based on no evidence and thus, must be branded as pervers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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