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TMI Blog2017 (8) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... Jindal, Mr. ML. Borad JUDGMENT 1. In these appeals, common question of law and facts are involved therefore, they are decided by the common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the tribunal whereby the tribunal has dismissed the appeal preferred by the department and partly allowed the appeal of the assessee modifying the order of the CIT(A). 3. This court while admitting the appeal has framed following substantial questions of law:- D.B. Income Tax Appeal No.202/12 admitted on 03.01.2014 (i) Whether the Tribunal was justified in not only confirming the deletion of addition of ₹ 12,92,947/-, but, further deleting the addition of ₹ 4,30,983/- confirmed by CIT(A), thereby, deleting the addition of ₹ 17,23,930/- made on account of unverifiable purchases, despite upholding the rejection of books of accounts u/s 145(3) of the Act? (ii) Whether the Tribunal was justified in reversing the finding recorded by CIT(A) as well as Assessing Officer and thereby, despite confirming the rejection of books of accounts u/s 145(3), reducing the trading addition of ₹ 9,11,038/- to merely ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Whether, the Tribunal was justified in discarding the valuation of registered valuer with respect to excess stock found during search, thereby, not only deleting the addition of ₹ 97,74,948/-which was made by the Assessing Officer and confirmed by CIT(A) on protective basis, but even confirming the deletion of addition of ₹ 93,41,052/-, thus, deleting the entire addition of ₹ 1,91,16,000/-? 2. Whether the Tribunal was justified in reversing the finding recorded by CIT (A) as well as Assessing Officer and thereby, despite confirming the rejection of books of accounts u/s 145(3), reducing the trading addition of ₹ 1,75,393/- to merely ₹ 76,489/- by applying gross profit rate of 20% as against 30%, which was applied by the Assessing Officer by relying upon Tribunal s own order in the case of Ravi Haldia, without giving and finding of the same? D.B. Income Tax Appeal No.208/12 admitted on 03.01.2014 1. Whether the Tribunal was justified in reversing the finding recorded by CIT(A) as well as the Assessing Officer with respect to addition of ₹ 10,16,558/- made on account of unverifiable purchases made by assessee in cash and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T., Tax Appeal No.240/2003 decided on 20.06.2016, the parties are bound by the principle of law pronounced in the aforesaid three judgments. 4. We remit back the case to the Assessing Officer for deciding afresh on the factual matrix. The authority will accept the law but the transaction whether it is genuine or not will be verified by the Assessing Officer on the basis of the aforesaid three judgments. 5. However, with regard to issue No.1, counsel for the respondent has relied upon the decision in the case of Chetnaben Shah Legal Heir of Jagdishchandra K.Shah Vs. The Income Tax Officer, War 10(3) decided on 14.07.2016 wherein the court has observed as under:- 6. We have heard learned Counsel for the respective parties and perused the records of the case. We are of the view that the CIT (Appeals) has rightly appreciated the case based on the sound principles of law and has also considered the statement made by the assessee at the relevant point of time. We are of the view that in light of the observations made by this Court in the case of Kailashben Manharlal Choksh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so of the view that the statement recorded at such odd hours cannot be considered to be a voluntary statement, if it is subsequently retracted and necessary evidence is led contrary to such admission. Hence there is no reason not (sic) to disbelieve the retraction made by the AO (sic-assessee) and explanation duly supported by the evidence. We are, therefore, of the view that the Tribunal was not justified in making addition of ₹ 6 lacs on the basis of statement recorded by the AO under Section 132(4) of the Act. The Tribunal has committed an error in ignoring the retraction made by the assessee. 5.2 He has also relied on the decision of this court in the case of Commissioner of Income Tax Vs. Shri Satya Narayan Pandey in D.B. Tax Appeal No.620/2011 decided on 31.07.2017 wherein this court has observed as under:- Taking into account the concurrent finding of both the Courts below, the appeal deserves to be dismissed. Apart from that the judgments cited by the counsel for the appellant will not apply in the facts of the present case. The second question is not a question of law hence not required to be decided. 6. In view of the fact that the decision whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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