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TMI Blog2024 (9) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ve pointed out specific defects to meet the fairs ends of justice or remanded the matter back to the Assessing Officer for building upon the observations of the learned ITAT on the issue of pointing of specific defects, especially in the rejection of books on account by the Assessing Officer under Section 145(3) of the Act. Accordingly, non-determination of "specific defects" by learned ITAT emanates a substantial question of law under Section 260A(6) on this count ? (ii) Without prejudice to the above, whether on facts and within the legal spectrum of the case, learned ITAT erred in law in deleting the impugned additional without any observations on the reliance of the Assessing Officer vis-avis impugned additions, on the judgment of the Hon'ble jurisdictional High Court in the case of Badri Prasad Bhagwandas & Co. vs. Commissioner of Income Tax, MCC No. 202 of 1985 dated 11/10/1984; without appreciating that the said judgment squarely covers the facts and circumstances of the instant case and that the learned ITAT was bound by the said judgment of the Hon'ble jurisdictional High Court, thus, rendering perversity to its observations in the impugned appellate order ? (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority vs Durga ChandKaushish where in the Apex Court held as under: "Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maximut res magis valeat quam pereat" 6. Whether on facts and within the legal spectrum of the case, the Learned ITAT erred in law in deleting the impugned additions, ignoring "mens rea" on the part of the assessee in view of the proposition that if the assessee had the will to comply to the purpose and intent of section 145 of the Income Tax Act, 1961, it could have maintained requisite quantitative details on daily basis with the help of technology such as bar code readers asis done by big retailers with huge footfalls and that in the absence of requisite quantitative details, the Assessing Officer was justifiably empowered to invoke section 145(3) of the Act to make reasoned estimates which the Assessing Officer rightfully did by constructing impugned additions based on a reasoned estimate as delineated by the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cher and bills quoting nature of business and also the daily sales and purchase record. Thus, the correctness or the completeness of the accounts of the assessee is questionable and not found satisfactory. Accordingly, Assessing Officer has rejected the books of the assessee under Section 145(3) of the Act and assessment was made ex-parte as per the manner provided in Section 144 of the Act. Assessing Officer has calculated the sales and net profit of the assessee in the light of judgment of Hon'ble M.P. High Court in the case of Badri Prasad Bhagwandas & Co. Vs. Commissioner of Income-Tax, MCC No. 202/1985 dated 11/10/1994 by estimating total sales at 2.5 times the license fees paid and Net Profit at 5% of the estimated sales. Accordingly, the total sales of the assessee was estimated at Rs. 45,75,27,240/- (2.5xRs.18,30,10,896/-) and the net profit was estimated at Rs. 2,28,76,362/-95% of 45,75,27,240/-) and the captioned assessment proceedings were completed vide order under Section 143(3) of the Act dated 17/12/2018 at assessed income of Rs. 2,28,76,360/-. Being aggrieved by the order of Assessing Officer, the assessee has filed appeal before the CIT(A) against the order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question, (5) The High Court shall decide the question of law so formulated and deliver such a judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reasons of a decision on such question of law as is referred to in sub-Section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 7. From a bare reading of the Section, it is apparent that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 10. In Hero Vinoth (Minor) Vs. Seshamma, (2006) 5 SCC 545 , the Apex Court has observed that: "The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 11. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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