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TMI Blog2013 (12) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : None For the Respondent : Shri Akhilesh Gupta ORDER Per Mehar Singh, AM The present Miscellaneous Application, arising out of appeal in ITA No. 918/Chd/2009, for the assessment year 2006-07 in case of Smt. Sunita Rani, has been filed by the appellant on 18.04.2011. 2. In the course of present appellate proceedings, ld. 'AR' stated that the written submissions filed by the assessee appellant in the impugned M.A., may please be considered for the purpose of disposal of the same. 3. Ld. 'DR', on the other hand, vehemently contended that there does not exist any mistake, apparent from record within the meaning of provisions of section 254(2) of the Income-tax Act,1961 ( in short 'the Act') and the ratio laid down by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. which were duly replied by the Ld. A. O. vide ITO's letter dt. 3.6.2009 / 5.6.2009 in which no adverse comments were given by the A. O. for the same. All the said details and Ld. A. O's comments were also furnished before the Hon'ble Bench vide P. B. Pages 1 to 42 at the time of hearing. The said submissions that there is no difference between the quantity as per inventory prepared by the Deptt. in comparison to quantity as per books of accounts and there is difference only with regard to valuation thereof and in such case no additions are called for as the Deptt. has valued the stocks on estimated cost, whereas the assessee has valued the stocks on the basis of actual purchase bills has not been decided by the Hon'ble Bench by giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submissions has not been decided by the Hon'ble Bench by giving specific reasons & speaking order. 4. Without prejudice to the above submissions, it was submitted that there was difference of stock amounting to Rs. 14,21,168/- which was found short at the time of survey in comparison to the stock as per books of accounts. The Ld. A. O. applied the rate of G. P. @ 11.24% on estimated sale outside the book of Rs. 18,00,000/-, whereas the difference in stock found was of Rs. 14,21,168/- which was valued at cost. By taking 11.24% as G. P. on sales which has been applied by the Ld. A. O., if we calculate the G. P. rate on cost of goods sold (which in the present case is Rs. 14,21,168/-) the same comes 12.66% (11.24 x 100/88.76 ) and if we app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Bench, have been carefully considered and adjudicated by way of detailed and well reasoned order. Findings of the Bench are purely based on appreciation of factual matrix of the case, relevant provisions of the Act and the appeal has been dismissed on merit. The relevant findings of the Bench are reproduced hereunder : "8. I have heard both parties. During the course of survey carried out by the Department, stock was physically verified in the presence of the representatives of the assessee and valued at Rs. 11,44,881/- on the date of survey. The position of stock on the date of survey as per books of the assessee was Rs.25,65,249/-. Thus, the value of stock as physically found at the time of survey was short by Rs. 14,21,168/- than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om being incomplete, also did not reflect the correct stock position as found at the time of survey. In this view of the matter, the AO was justified in coming to the conclusion that the books of account produced by the assessee were neither correct nor complete and therefore was justified in invoking Section 145(3). The conclusion reached by the Ld. CIT(A) in this behalf is confirmed. 10. As regards the estimation of sales at Rs. 18.00 lakhs outside the books of account, it is noticed that the stock found at the time of survey was short by Rs.14,21,168/-. The fact that the stock at the time of survey was substantially lower that the stock as per books confirms the finding of the AO that such sales must have been made outside the books. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. In the present M.A., the assessee appellant intends and contends that the issues adjudicated by the Bench, in the appellate order, on merit, should be reviewed, reconsidered and reversed, in the guise of the alleged mistake apparent from record. Needless to state that the Bench does not have jurisdiction, to review its order, passed on merit. There are ample judicial verdicts on the issue, in question, to support this view. Further issues adjudicated on merit by the Bench don't constitute mistake apparent from records, in view of the provisions of section 254(2) of the Act and plethora of judicial precedents. 6. In view of the above legal and factual discussions, we do not find any merit in the impugned Miscellaneous Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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