Itta/25/2015 Of Commissioner Of Income Tax-Vi v. Shri Prem Singh

THE HON’BLE SRI JUSTICE G. CHANDRAIAH AND THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM I.T.T.A. No. 25 of 2015 ORDER:- (per Hon’ble Sri Justice G. Chandraiah) This appeal at the instance of Revenue, arises from the order of the Tribunaldated 30.10.2009 in ITA No.879/Hyd/2008 for the assessment year 2004-05,raising the following substantial questions of law: “(A) Whether, on the facts and in the circumstances of the case, theAppellate Tribunal is justified in cancelling the order of revision passedby the Commissioner of Income Tax under Section 263 of Income TaxAct? (B) Whether, on the facts and in the circumstances of the case, theAppellate Tribunal is justified in accepting the gross profit ratedeclared by the assessee by comparing the profit disclosed with theassessment year 2001-02 instead of comparing with that of immediatelypreceding assessment year, namely, 2003-04? (C) Whether, on the facts and in the circumstances of the case, theAppellate Tribunal is justified in deleting the addition made on accountof excess stock being found in the course of the survey on the basis ofphysical verification of stocks in the course of the survey?” 2. Heard Sri B. Narasimha Sharma for the Department and Sri Raghuram forAssessee. 3. A perusal of the questions of law raised reveals that the order challengedbefore the Tribunal was the order passed by the Commissioner in exercise ofpowers under Section 263 of the Income Tax Act. The Tribunal, after examiningthe record, had recorded a categorical finding that the rate of Gross Profit, asadopted even for the assessment year 2001-02, was accepted as 5.43% andfurther the Assessing Officer had thoroughly examined the matter in all aspectsand, in fact, there were as many as six sittings between 01.09.2005 and06.12.2005. The Tribunal also recorded a finding that the huge volume of stockwas not weighed but weight per bag is taken on average basis. As there aretwo possible views, the view taken by the Assessing Officer cannot be said tobe erroneous merely because there is another view possible. In paragraph 7 ofits order, the Tribunal had categorically found that the twin conditions which arerequired to be satisfied, that the order of the Assessing Officer being erroneousand prejudicial to the Revenue, are not satisfied in the present case and, thus, set aside the order of the Commissioner passed under Section 263 of theIncome Tax Act. 4. Hence, in the facts of the present case and based on the material availableon record, we do not see any reason to take a view different from that of theview taken by the Tribunal. 5. The appeal is, accordingly, dismissed. No costs. Miscellaneous petitions, ifany pending in this appeal, shall stand closed. ______________________ G. CHANDRAIAH, J 16[th] June, 2015 ksm _____________________________ CHALLA KODANDA RAM, J HON’BLE SRI JUSTICE G. CHANDRAIAH ANDHON’BLE SRI JUSTICE CHALLA KODANDA RAM ksm I.T.T.A No. 25 of 2015 16[th] June, 2015