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TMI Blog2015 (6) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in confirming rejection of books of accounts of the assessee by applying the provision of section 145(3) of Income Tax Act, 1961. 2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in calculating the amount in his order against addition confirmed. 3. On the facts and in the circumstances of the case and in law, the ld CIT(A) erred in the confirming the trading addition of Rs. 18,71,094/- out of Rs. 61,05,371/- made by the A.O. by confirming the GP rate of 48% on declared sales of Rs. 1,55,92,447/- as against 60% applied by the ld. A.O. and 44.79% declared by the assessee." Ground of revenue's appeal ITA No. 943/JP/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tul Burman are Directors of company. The assessee was asked to produce the books of account consisting of cash book, ledger, general bank book, sale and purchase vouchers, expenses vouchers, stock register, during the course of assessment proceedings, which were not produced before the Assessing Officer on the pretext that there was a difference between Directors and books of account are in the possession of Shri Atul Burman and books were maintained on computer at Mumbai but assessee's attitude was noncooperative, therefore, he made the assessment U/s 144 of the Act. The assessee had declared G.P. rate @ 62.85% in A.Y. 2005-06 on turnover of Rs. 69.54 lacs against which G.P. rate of 60% had applied in A.Y. 2006-07, under the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai did not deliver the books of accounts. It is also stated that in other connected cases of the appellant, all requisite books of accounts have been produced and there was no reason for the appellant for not producing the books of accounts in the appellant company. On the other hand the A.O's case is that the books of accounts have not been produced in spite of so many opportunities given at the time of assessment stage and therefore additional evidence by way of regular books of account may not be accepted at the appellant stage. Having considered the above facts, it is noticed that there was definitely some dispute between the directors on the issue of books of account. However, circumstantial corroborated facts indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l High Court is that if no incriminating material has been found, then no addition can be made in the assessment completed U/s 153A, which has been awaited. He further relied on the following case laws:- (i) ITAT Jodhpur 308/Jd/2013, 22nd July, 2013 93 DTR (Jd)(Trib) 1. (ii) Marigold Merchandise (P) Ltd. Vs. DCIT, ITAT Delhi ITA Nos. 2666 & 2667/Del/2013, 27th December, 2013 (2013) 38 CCH 050 Del Trib. (iii) Gurinder Singh Bawa Vs. DCIT (2012) 28 Taxman.com 328. (iv) Kusum Gupta Vs. DCIT, ITA No. 4873/Del/2009, (2005-06). (v) MFG Automobiles Ltd. Vs. ACIT ITA Nos. 4212 & 4213/Del/2011 (ITAT Delhi). (vi) Tarannum Zafar Khan Vs. ACIT, ITA Nos. 5888 to 5890/Mum/2009. (vii) Vee Gee Industrial Enterprises Vs. ACIT ITA No. 1/Del/2011 & ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount. The ld AR further drawn our attention on business results from A.Y. 2005-06 to 2007-08 and argued that during the year, not only sale but GP has increased from 40.35% to 44.79%. The sales have increased more than double from A.Y. 2005-06. The assessee has been dealing in medicine and G.P. margin in each kind of medicines remains different. There is throat cut competition in the medicine business, therefore, he prayed to delete the addition confirmed by the ld CIT(A). He further argued that on non maintenance of stock register, the book result cannot be rejected U/s 145(3) of the Act for which he relied upon the decision in the case of CIT Vs. Jas Jack Elegance Exports 324 ITR 95 (Delhi), therefore, rejection of book result U/s 145(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority is not justifying in receiving books U/s 145(3) of the Act. 6.1 The ld Assessing Officer estimated the G.P. by applying 60% rate of total turnover whereas the assessee has shown G.P. during the year 44.79%, which has increased reasonably from the preceding year on increase sale. The ld CIT(A) has applied G.P. rate @ 48% and reduced the total addition to the tune of Rs. 4,99,081/- by rectifying the order U/s 154 read with Section 250 of the Act. The finding based on past history and not submitting the stock register before the Assessing Officer but no solid reasons have been assigned by the ld CIT(A). Both the lower authorities have not pointed out any defect in the books of account. The books of account has been audited under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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