2017 (3) TMI 1958

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..... , more particularly when the books of account were not rejected, the analogy applied by the CIT(A) is correct and both the issues are required to be answered in favour of the assessee and against the department.
Hon'ble The Acting Chief Justice For the Appellant : Mr. Priyesh Kasliwal. For the Respondent : Ms. Parinitoo Jain. JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the department. 2. This Court while admitting the matter on 29th March, 2005 framed the following questions:- "1. Whether the Income Tax Appellate Tribunal was justified in reversing the categorical finding of the first appellate authority that the b .....

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..... Rohitash Kumar, reproduced in the order, if read with the appellant's explanation of shortage mentioned at page-3 of the assessment order, it becomes clear that deiage is ascertained on actual weight of the last bag which is not filled in fully. This implied that labour and time is saved by not weighing each and every bag of 85kg. Physically and separately out of a particular lot purchased and put in sun light for driage and entry of the same is made on the basis of bills. The inference of the AO that the driage is recorded purely on estimate basis, cannot considered well founded. In the instant case it is claimed that books of account are properly maintained and all the required books of account are maintained and not defect in books of ac .....

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..... We have heard counsel for both the sides. 5. He contended that while considering the case of the appellant the Tribunal in para 4 and 6 has not given cogent reasons. For ready reference para 4 and 6 are reproduced as under:- "4. In the light of above discussion and by considering the totality of facts and circumstances of the case, we find the justification in the order of the AO in estimating the dryage @ 1.5% but fact remains that moisture depends on the quantity and quality of the mustard seeds and also the month when it was dried. When it is so, then the addition made by the AO is looking on higher side. Therefore, we modify both the order of lower authorities and restrict the addition to Rs. 6,00,000/-. Thus, the assessee will get a .....

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