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TMI Blog2014 (3) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... her alternate with the AO to have adopted an average gross profit rate, which has been upheld by the CIT(A) and ITAT – relying upon Chhabildas Tribhuvandas Shah v. CIT [1964 (9) TMI 8 - SUPREME Court] - where GP rate is applied or trading addition is made or addition is on the basis of appreciation of evidence, no substantial question of law arise – thus, there is no merit in the appeal – Decided against Assessee. - D.B. INCOME TAX APPEAL NO.577/2009 - - - Dated:- 21-1-2014 - AJAY RASTOGI AND J.K. RANKA, JJ. For the Appellant : Gunjan Pathak For the Respondent : Mrs. Parinitoo Jain ORDER :- PER : J.K. Ranka The instant Income Tax Appeal under Section 260-A is directed against the order of the Income Tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied with the way by which the books of account were maintained as also non-production of the vouchers mainly relating to sale of the liquor whether country liquor or IMFL or Beer and was of the opinion that when the records have not been properly maintained, therefore, profit cannot be properly deduced from such account and on the basis of such non-maintenance/non-production of the sale vouchers, the sale version, which was on estimate basis could not be accepted and when even the sale version was not open to verification, then the books of account had to be rejected under Section 145(3) of the I.T. Act. It was also observed by the Assessing Officer that though purchases could be said to be vouched but the entire sale version was manipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and stock is also to be submitted to the Excise Inspector by 5th of the following month and which also have not been done, therefore was clearly of the opinion that the books/trading results have to be rejected and after invoking the provisions of Section 145(3) of the I.T. Act, the assessment has to be made. 7. The assessee submitted that the profitability has gone down even in comparison to immediate past Assessment Year as the business has become more competitive and the contract was taken at higher value than last year and tried to justify the result disclosed. 8. Considering all the submissions made by the assessee, the Assessing Officer after comparing comparable cases (Annex.1) applied net profit rate at 15% and made an add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of sustenance of the addition, as aforesaid. 14. The Tribunal upheld the order of the CIT(A) while observing that in the facts and circumstances of the case, the order of the CIT(A) was perfectly justified who had adopted average gross profit and accordingly sustained the order of the CIT(A). 15. It is this order, which is being assailed before us by the appellant-assessee. 16. Shri Gunjan Pathak, counsel for the appellant vehemently submitted that the Tribunal is not justified in not deleting the trading additions both on account of Indian Made Country Liquor as also Indian Made Foreign Liquor and on Beer account as the appellant declared good trading results and there was no occasion for the Assessing Officer to have tinkere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. She contended that admittedly sale vouchers were not maintained and when sale vouchers were mot maintained, the trading results have rightly been rejected not only by the Assessing Officer but also the CIT(A) as well as upheld by the Tribunal and the assessee cannot contend that the books of account cannot be rejected on such account. She would further contend that merely applying a particular G.P. rate does not lead to substantial questions of law being involved rather it is a pure finding of fact and when there is a pure finding of fact no appeal is maintainable before this Court as no substantial question of law arises out of the said order. She would further contend that the revenue was more aggrieved in the matter as while total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared by the appellant and the other comparable cases relied upon by the assessee as well as the Assessing Officer. Therefore, in our view, there was no other alternate with the Assessing Officer in a case like this to have adopted an average gross profit rate, which has been upheld by the CIT(A) and ITAT. 20. The Hon'ble Apex Court in the case of Chhabildas Tribhuvandas Shah v. CIT [1966] 59 ITR 733 has observed as under: We may point out that we are not concerned with the correctness of the conclusion and we are only concerned with the question whether there is any material in support of the finding of the Appellate Tribunal. In cases involving the applicability of the proviso to section 13, the question to be determined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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