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TMI Blog2010 (6) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... the total income shown by the assessee are not necessary concomitant to an order passed under s. 145 or 143(2) of the Act. In the instant case, by looking at the history, it appears that the net profit rate was in the range of 1.88 per cent to 3 per cent, which was accepted by the AO himself or by the Tribunal which is a final fact -finding authority as observed in the case of Kamala Ganapathy Subramaniam [ 2001 (2) TMI 132 - SUPREME COURT] Estimation is a question of fact - See New Plaza Restaurant [ 2008 (7) TMI 260 - HIMACHAL PRADESH HIGH COURT] and Sanjay Oilcake Industries [ 2008 (3) TMI 323 - GUJARAT HIGH COURT] As during the assessment years under consideration, no different yardstick can be adopted and no interference is required as per the ratio laid down in the case of Zora Singh [ 2007 (2) TMI 153 - PUNJAB AND HARYANA HIGH COURT] - No question of law arises because the method adopted by the AO for determining the net profit rate during the assessment year which is similar as in the other assessment years as per the ratio laid down in the case of Textile Agents [ 1990 (7) TMI 66 - ALLAHABAD HIGH COURT] - The accounts were rejected and net profit rate was estimated which u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-91 and 1991-92 has restricted the net profit rate at 3 per cent. The same stand was taken in the subsequent years. Being aggrieved, the department has filed the present appeals. 5. With this background, learned Counsel for the Appellant Sri D.D. Chopra submits that more or less the facts in all the assessment years under consideration are identical. He further submits that in the course of assessment proceedings for the year 1991-92, the assessing officer verified various purchases debited in accounts by making cross-verification from suppliers. Results of inquiries made from several suppliers reflected that the purchases were bogus. The discrepancy was confronted to the Assessee who replied that the books of accounts had been lost while the accountant was bringing them from Delhi to Lucknow. In addition to above, learned Counsel for the Appellant submits that the account of M/s Mutho Lal Dheeraj Mal, Jhansi had shown that certain payments received during the assessment year 1991-92 to the tune of Rs. 1,19,000 from Assessee but these payments did not find any place in the books of Assessee. He further submits that the Tribunal has erred in law in restricting the net profit rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate was accepted by the Tribunal or assessing officer from 1.88 per cent to 3 per cent. He further submits that this is a question of fact and no substantial question of law is emerging from the impugned order passed by the Tribunal. He relied on the ratio laid down by this Court in Income Tax Appeal No. 75 of 2009, in the case of CIT v. Raghvendra Pratap Singh decided on 17-7-2009. He also submits that the entries in the books of accounts of a third party cannot be automatically used against the Assessee and they have to be proved according to law by examining the person concerned who can prove the correctness of the entries and allowing the Assessee against whom these entries were sought to be used, an opportunity of hearing, as per the ratio laid down in a case reported in Malwa Vanaspati & Chemicals Co. Ltd. v. CST 1995 UPTC 987. It was submitted that the said procedure was not followed by the department in the Assessees case. To support his argument, he relied on the ratio laid down in the following cases: (i) Anis Ahmad & Sons v. CIT and Anr. (2008)297 ITR 441 (SC); (ii) CIT v. G.K. Contractor (2009) 19 DTR (Raj) 305; (iii) Addl. CIT v. Jay Engineering Works Ltd. (1978) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not result in devising profits or gains from business or other sources different from one returned by the Assessee, where he has returned his income and different from the result reached by the Assessee as per the method of accounting employed by him, by adopting a different basis by the assessing authority. 12. Similar views were expressed in the case of CIT v. Smt, Usha Tripathi (2001)249 ITR 4 (All). For determining the net profit rate and turnover, the past history of the Assessee is important. The fact that the Assessees books have been rejected in earlier years may be circumstances to be taken into account and justify the rejection in a subsequent year where they are maintained on the same pattern as before. But it should not be taken as a precedent that because they were not acted upon in an earlier year, they should be rejected in subsequent years too. However, once books are rejected, the past history of the case becomes, perhaps, the most relevant criterion for estimating the income as per the ratio laid down in the case of Delta Engineering Co. (P) Ltd. v. CIT (1990)186 ITR 383 (All). Surrounding the circumstances may also be taken into account while estimating the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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