9911796707
TMI Blog1996 (2) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ase and in the absence of a decision being rendered by the Commissioner of Income-tax (Appeals) in view of the chartered accountant of the assessee --- not pressing 'the point on principle' before the Commissioner of Income-tax (Appeals) ? (i) does an appeal lie as against an issue conceded and not decided by the first appellate authority ? (ii) the Tribunal is right and with jurisdiction in deciding that point on merits ? (iii) should not the Tribunal have, if at all, remitted the case to the Commissioner of Income-tax (Appeals) to consider the point conceded by the chartered accountant before the Commissioner of Income-tax (Appeals) and hence not/could not be considered by the Commissioner of Income-tax (Appeals) ? 3. Whether, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k value which was in the file and assessable under section 45(4) should have been the basis for the Tribunal to issue a direction to that effect ? 6. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in deleting the addition to the closing stock ? " Since on hearing learned senior counsel and the learned advocate for the respondent-assessee --- Messrs. Diza Electricals, we are inclined to exercise our powers only in regard to the following questions which are questions Nos. 1 and 6, respectively. We will advert briefly to the necessary narration. The questions which we propose to direct are reproduced hereinbelow : " 1. Whether, on the facts and in the circumstances of the case, the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the decision of this court in Popular Automobiles v. CIT [1989] 179 ITR 632 it was held that the closing stock-in-trade is to be valued at the market rate. The assessee was unable to furnish the market rate or price with regard to these each of the items, leaving the Assessing Officer to estimation. The Assessing Officer estimated the market rate or price by adding a gross profit of ten per cent. to the cost admitted and thereby ordered addition of Rs. 2,09,062. This was on the basis of the admitted position regarding the value of the stock by the assessee himself amounting to Rs. 20,90,627 on ten per cent. basis. The first appellate authority, the Commissioner of Income-tax (Appeals), found that Rs. 1,19,031 was also paid after the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Act, 1963. It was further submitted that the peculiar facts on record that on dissolution the private limited company which was itself a partner of the assessee-firm in question had taken over the assets and liabilities on the basis of what is to be understood as a stated consideration have not been taken into consideration. It was further submitted that in spite of the dissolution of the assessee-firm, the liability for the payment of sales tax and as a result any payment in regard thereto by one of the erstwhile partners would have to be considered and viewed as a payment of sales tax by the firm itself. A further factual peculiarity was also brought on record by the submission that the remaining two partners of the assessee-fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions, with regard to the effect of dissolution on the discharge of the liabilities of the partnership firm and also with regard to the factual basis when payments are made after the dissolution. Another aspect which would be required to be considered would also be a situation of law. What is the process of valuation of the closing stock-in-trade as at the date of dissolution ? Even in regard to this and in spite of the general principle in regard thereto to be found in the decision of the Supreme Court in A. L. A. Firm v. CIT [1991] 189 ITR 285. The question will have to be considered in the light of the factual peculiarities. Even though the proposition that in the event of dissolution of the firm closing stock must be valued at marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the questions framed herein and therefore do not require a separate reference in regard thereto. For the above reasons, the Income-tax Appellate Tribunal is directed to refer the following two, questions to this court after drawing the required statement of case in the light of our above observations within a period of three months from the receipt of a copy of this judgment and the record, which should be transmitted forthwith : "1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in deleting the disallowance of the sales tax amount of Rs. 1,80,203 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in deleting the addition to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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