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TMI Blog2012 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises of the assessee company has not been considered. (2) During the hearing on 7-4-2010 for the purpose of recording arguments / submissions of the appellant by the Bench the attention was drawn to the synopsis of submission filed before I. T. T. A T but this synopsis of submissions has not been considered by the Hon'ble I.T.A.T. In this synopsis on factual aspects eight material submissions as reproduced below has been narrated but same has not been considered ; - "SYNOPSIS OF SUBMISSION" The Departmental appeal against order of CIT(Appeal) is submitted to be without merit and not tenable either legally or factually. Factual Aspects: Addition of Rs.4575000/- is based on surmises, conjectures and presumption of wrong facts. 1. The addition has been made on the basis of payment of octroi of Rs.101000/- on 20/07/1999 consequent to spot inspection by the Octroi Department on 17/07/1999 at the business premises of the company, and the payment related to goods at the business premises. Whereas, the Income Tax search was conducted on 20/11/1999. The goods in respect of which octroi has been paid pertain to transactions of purchases duly recorded in the books of accounts p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T-4698 and linking the octroi payment of Rs.1 lacs to the said goods. This finding is contradictory to the facts because (i) The said matador was detained by the Octroi Department and information was given to the Sales Tax and Central Excise Department as mentioned in the newspaper cutting. (ii) The Central Excise Department and Sales Tax Department did not find any irregularity in the goods found in the said matador [Refer to paper book page no. 114, 115 and 116] (iii) The said matador contained goods of Rs.192960/-purchased from Kamal Agency duly recorded in the books and mentioned in the annexure attached by the A.O. with the order. (iv) After no-objection and completion of inquiry from Excise and Sales Tax Department the Octroi Department recovered octroi of Rs.35000/- on adhoc basis on the said goods in the matador and the said payment is duly recorded in the regular books on 31/07/1999 verifiable from the seized floppy and details of octroi expenses attached with the order of the A.O. [For Octroi receipt refer to Page no. 117] The amount of Rs.1 lacs of octroi payment mentioned in the newspaper cutting is in respect of goods found at business premises and irregul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. Similarly, Income Tax Department has also taken inventory of goods at the time of search on 18/11/1999 and at that time also they have not come across any unaccounted purchase or sales, therefore the question of any unaccounted investment in purchase does not arise. 8. The onus to prove unaccounted investment is on Department. As held by the Supreme Court in the case of P. R. Metrani 287 ITR 209 presumption does not extend to regular assessment. The transactions of purchase and sales of goods for which octroi has been paid are regular transactions and are duly recorded in books prior to date of search and therefore, the provision of block assessment is not applicable. Kind attention is drawn to decision of Gujarat High Court in the case of N. R. Papers and Boards Ltd 248 ITR 526 where the Court followed its own decision reported in 234 ITR 733, the relevant head note on page 526 is reproduced hereunder "If prior to the date of search, the assessee had disclosed the particulars of income or expenditure either in the return or in the books of account or in the course of proceedings to the Assessing Officer or where the return had not become due, they are duly recorded in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done on a single day. There is also no material to infer that they were done in a single day ". But no such alternative submissions were made by appellant. 5. Further, in para 20, the I.T.A.T has worked out stock turnover ratio bf 4.1 % and estimated value of investment at Rs.1,93,202 by taking into consideration the turnover, G.P of 3 %, closing stock, worked out the turnover value of Rs.45,75,000 at Rs.47,12,250. But such formula was neither discussed nor argued during course of hearing of appeal. 6. On the issue of addition on the basis of ad-hoc payment of Octroi on Spot Checking by Checking Squad of Ahmedabad Municipal Corporation the assessee has relied upon and with regard to modus operand! of octroi recovery , specifically pointed out the following orders placed in Paper Book No. IV. i. Order u/s 144A by additional C.IT in the case of A. Ramanlal & Co. ( Placed on page No. 6 to 16 of Paper Book No. I) ii. Assessment order of M/S A Ramanlal a& Company for A.Y 1996- 97 ( Placed on page No. 17 to 23 &24-to 27 of Paper Book No. IV) iii. I.T.A.T order ITA. No. 3181/AHD/2004 A.Y.2001-02 in the case of Freedom (Glasses) Eyleaser Centre P. Ltd. ( Placed on page No. 36 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal that a point or a contention which is material for determining the amount of tax payable (which may be nil in a given case) has not been considered by the Tribunal, it would certainly constitute a mistake apparent from the "record" within the meaning of Section 254(2) of the Act." The above decision has been affirmed by the Supreme Court reported in 305 ITR - 227 and has held that failure to apply judgment of jurisdictional High Court is a mistake apparent on record. Rectification of an order stems from the fundamental Principle that justice is above all. It is exercised to remove the error and to disturb the finality. 3. HONDA SIEL POWER PRODUCTS LTD. 295ITD - 466(S.C)." The learned AR also relied on the decision of the ITAT Jaipur "A" Bench in the case of Gehna Vs ITO (MA No.33/Jp/2008 in ITA No.22/Jp/2002 - AY 1998-99 dated 24-12-2010) reported in (2011) 137 TTJ (Jp) (UO) 17. With the above submissions the learned AR prayed that the order of the Tribunal suffers from various deficiencies and therefore, may be recalled for further consideration 3. The learned DR objected to the submissions of the learned AR and relied on the decision of the Hon'ble Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to the conclusion to which it has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. In arriving at the conclusion that losses incurred by the respondent company by the sales of certain shares in two compani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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