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TMI Blog1983 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... at a higher figure. 3. Similarly, for asst. yr. 1976-77, out of number of main and sub-grounds running in about 15 in number, the main contention of the assessee has been against the estimate of total income upheld by the CIT(A) at Rs. 57,280 against that of Rs. 1,54,700 framed by the ITO. In respect of this estimate, the assessee has attacked the reduction in allowance of expenses and also estimate of sales on the basis of which the estimate was framed by the CIT(A). The grounds being argumentative, addition to the estimate filed by the assessee is also disputed but as in 1975-76, here again on grounds pertaining to non-compliance of certain statutory notices the learned counsel for the assessee sought our permission to withdraw the same and not to address us. 4. The Revenue in its appeal contests the order of the CIT(A) in respect of Rs. 7 lakhs added by the ITO on account of certain seized documents, with sum of Rs. 84,000 added as income from said funds but deleted by the CIT(A) besides thirdly the Revenue contests the reduction of estimated income from Rs. 1,54,700 by Rs. 97,420. 5. In order to appreciate all these disputes, facts pertaining to the issues, if stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pancies pertaining to any period after 31st March, 1975 found in the course of search had nothing to do with the assessment year under consideration. 6. It is this action of the CIT(A) which is disputed by the assessee. The learned counsel for the assessee over and again submitted that total income assessed in the immediately preceding four years was between Rs. 53,000 and RS. 60,000 and GP rate all through had been applied @ 4 per cent. He also submitted that the Revenue had no case for reducing the overhead expenses claimed by the assessee from Rs. 40,295 and Rs. 28,475 taken into consideration by the CIT(A) increasing the same only by Rs. 3,600 in respect of salary against the estimate of the ITO. The learned senior Departmental Representative Mr. R.K. Bali, on the other hand, mainly relied on the case of Commr. of ST vs. H.M. Esufali H.M. Abdulali 1973 CTR (SC) 317 : (1973) 90 ITR 271 (SC) and submitted that the CIT(A) was not only too fair to the assessee but was very much unreasonable to the Revenue when he reduced the estimate from Rs. 1,50,000 to Rs. 75,000. According to him, it was only the ITO who could make the best judgment assessment and the CIT(A) could not have in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) is not only judicious but free from arbitrariness and has a reasonable nexus with the facts of the case. While confirming the action of the CIT(A), we are unable to agree with the learned Departmental Representative that in a best judgment assessment the estimate of the ITO is to prevail because when we look to case of H.M. Esufali H.M. Abdulali, relied upon by the learned Departmental Representative, we find that in that case their Lordships of the Supreme Court had put a rider in the words: "So long as the estimate made by him was not arbitrary and had a reasonable nexus with the facts discovered, it could not be questioned". Firstly because reliance of the learned Departmental Representative on the above said case is misplaced and secondly because the Revenue is not in appeal for this year, we are unable to go back to the estimate framed by the ITO and we also hold that there is no case for the same. Looking to the reasoning given by the CIT(A),his order deserves to be confirmed and we also adopt the total reasoning given by him for his action, for coming to our finding. 8. Coming to the facts pertaining to asst. yr. 1976-77 which were somewhat identical, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in rejoinder, submitted that since no opportunity was granted by the ITO to the assessee in respect of seized record and as powers of the CIT(A) are co-extensive, his action in respect of deleting Rs. 7,84,000 could not be challenged by the Revenue. He also submitted that over-lapping has been found. The estimate of Rs. 22,20,000 that of sales, is against facts. He submitted that para 11 of the CIT(A)'s order is contradictory. 10. After taking into consideration the rival submissions and going carefully through the order of the CIT(A), we are unable to interfere in his finding. As observed by us in the earlier year, the assessee had contended that the books were no longer available and for the year under consideration, i.e., 1976-77, the assessee is on a worse ground because here it is contended by the assessee that the books for the period ending 31st March, 1976 were not available because the same were eaten by white ants. It is strange that only eight months after the accounting period was over, search was conducted and the books are said to have been eaten by white ants. Firstly the books were of the current period running from 1st April, 1975 to 31st March, 1976 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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