Commissioner of Income Tax vs Sisodia Marbles and Granite (P) Ltd.

The instant appeal filed u/s 260A of the Income Tax Act, 1961, is directed against order dated 21-3-2005 rendered in ITA No. 1244/Jp/1996 by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur (in short the Tribunal hereinafter) in respect of assessment year 1994-95, whereby the appeal filed by the department challenging the order of Commissioner (Appeals) Ajmer dated 18-3-1996 has been dismissed, thereby it is held that the learned Commissioner (Appeals) is not justified in not providing 100 per cent relief and consequently, the trading addition sustained by the Commissioner (Appeals) has been deleted.

The facts required to be noticed are that the assessce-company is engaged in processing of mirror polished marble tiles out of purchased marble blocks/tuffers and sale thereof. The assessee-company has maintained regular and proper books of accounts duly supported by all necessary records. The assessee-company is also assessed under the Sales Tax Act as well assessed to excise duty on its production. The assessee-company has maintained required registers for excise purpose for recording day-to-day raw material consumption and daily stock register for mirror polished marble tiles. The assessee-company has been sending its monthly return, RT 12 before the excise authorities. The excise authorities and sales-tax authorities have been frequently visiting, inspecting, examining and found the records maintained as correct and complete. Apart from the abovementioned registers in the prescribed form under the Excise Act, the assessee-company also maintained (i) purchase register for purchase of blocks detailing therein complete information with regard to from whom purchased, bill number date, amount bill, freight, total, date of receipt of marble blocks, royalty number, truck number, (ii) stock register for raw material day-to-day containing details in respect of opening stock, purchase, issue for production and closing stock etc. Company has maintained daily production register and stock register as required under the Excise Rules. The accounts of the assessee-company are correct and complete and have been accepted by the excise, sales-tax and other authorities. The accounts for the year under appeal have been audited by the statutory auditors as well as by the tax auditors. The auditors report stand placed on assessment records.

The assessing officer has passed the assessment order dated 30-10-1995 u/s 143(3) of the Act of 1961, and had made trading addition of Rs. 5,42,725 by applying the GP rate of 22 per cent considering as the assessee had shown the lower rate of GP, the rate declared by the other assessee of the same business line. The assessing officer has passed the assessment order by invoking the provisions of Section 145 of the Act of 1961 as the number of defects were found in the books of accounts.

Aggrieved by the aforesaid order, the assessee preferred appeal to the Commissioner (Appeals), challenging the assessment order dated 30-10-1995. The learned Commissioner (Appeals) partly allowed the appeal of the assessee by observing that it is proper and reasonable that addition to the extent of 1.25 per cent is called for in this case and accordingly, an addition of Rs. 1,18,550 is confirmed out of total addition of Rs. 5,42,725 made by the assessing officer vide order dated 15-3-1996.

Aggrieved by the order of the learned Commissioner (Appeals) dated 15-3-1996, the revenue has preferred the appeal before the learned Tribunal. The learned Tribunal vide its order dated 21-3-2005 has dismissed the appeal of the revenue by observing that the assessing officer has erred in making the addition and the learned Commissioner (Appeals) is not justified in not providing 100 per cent relief. Consequently, the trading addition sustained by the Commissioner (Appeals) is deleted.

Aggrieved by the order of the learned Tribunal dated 21-3-2005, the revenue has preferred the instant appeal on the following substantial question of law:

Whether on the facts and circumstances of the case, in absence of any appeal or cross-objection preferred by the assessee challenging the order of the Commissioner (Appeals), the Tribunal is justified in granting 100 per cent relief?

We have heard learned Counsel for the parties and have also perused the impugned order and also the original record produced before us.

There is no manner of doubt that without preferring appeal or cross-objection filed by the assessee challenging the order passed by the Commissioner (Appeals), the Tribunal cannot grant relief in favour of the assessee by providing 100 per cent relief. Therefore, we answer the substantial question of law involved in this appeal in favour of the revenue and against the assessee.

Accordingly, the appeal is allowed and consequently the order of the Commissioner (Appeals) is maintained and deletion of (addition) providing 100 per cent relief to the assessee passed by the Tribunal is quashed and set aside. Accordingly, an addition of Rs. 1,18,550 is confirmed out of total addition of Rs. 5,42,725 made by the assessing officer vide order dated 15-3-1996.