IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ITA No.209 of 2007 Date of decision: 16.12.2008 M/s Kumar Trading Company, Bathinda -----Appellant Vs. CIT, Central Revenue Building, Bathinda. --Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N.MITTAL Present: Mr. R.L.Gupta, advocate for the appellant. Ms.Savita Saxena, Standing Counsel for the revenue. Adarsh Kumar Goel,J. 1. This appeal has been preferred by the assessee under section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar passed in ITA No.614(ASR) 2004 dated 31.10.2006 and CO.6(ASR)/ 2005, proposing to raise following substantial questions of law:- “i) Whether the Income Tax authorities having rejected the books of account while determining income from business should not have relied on the same books of account for the purpose of making the additions ITA No.209 of 2007 towards cash credits of the depositors in the facts and circumstances of the case? ii) Whether on the facts and circumstances of the case, Income Tax authorities are right in holding the addition of Rs.3,22,550/- on account of the cash creditors and interest thereon in the facts and circumstances of the case and more so in the face of their findings having rejected the books of account? 2. During the course of assessment, the Assessing Officer did not accept the account books of the assessee in entirety and computed gross profit by applying flat rate on total turnover. While computing gross profits, the turnover as per books of account was taken into account. The said view was partly set aside by the CIT(A) and the Tribunal. The Tribunal held as under:- “7. We have heard the parties and have perused the material brought on record qua this issue. We are at one with the action of the ld. CIT(A) in sustaining the rejection of the assessee’s books of account by the AO. This is so, because the assessee had not maintained day to day stock register, quantitative stock tally, sales vouchers, purchase vouchers, purchase vouchers, expenditure vouchers and details of inventory of closing stock as on 31.3.2001, thereby disabling the AO to compute the income of the assessee in 2 ITA No.209 of 2007 accordance with the provisions of the Income Tax Act. However, we find that the CIT(A) was also justified in setting aside the findings of the AO based on the case of M/s Wadhwa Sales Corporation, which the AO had quoted as a case comparable to that of the assessee. Firstly, undisputedly, the AO never put the assessee to rebuttal of the said case of M/s Wadhwa Sales Corporation before making it the basis of arriving at the GP rate of 10%. This was wholly in contravention of the principles of natural justice, condemning the assessee unheard. Then, in the first place itself, the AO went wrong in turning to the case of another party, when the past history of the assessee itself would have served as the best guide to arrive at the GP rate for the year under consideration in the absence of documents/details as above and the assessee’s books having rejected by the AO under section 145(3) of the Act. 8. Now, the assessee has been able to demonstrate and establish that for the year under consideration,it had shown better results as compared to the past assessment years. Its GP rates for the assessment years 2000-01, 1999-2000 and 1998-99 were 3.56%, 2.51% and 2.40% respectively and its sales for these years were of Rs.41,57,903/-, Rs.35,26,293/- and Rs.19,70,508/- respectively, as against the current year GP of 4.51% and sales of Rs.50,13,195/-. That being so, even on merits, the assessment order in this regard was erroneous. 3 ITA No.209 of 2007 9. In the above view of the matter, we hold that the addition made by the AO even to the extent confirmed by the CIT(A) is uncalled for. The same is hereby deleted. As a consequence, Ground No.1 of the Department is rejected and Cross Objection Nos. 1 and 2 of the assessee are rejected.” 3. We have heard learned counsel for the parties. 4. There is no inflexible rule that where books of account are not accepted, no part of it can be referred in the order of assessment. It all depends on facts and circumstances of each case. Finding of the authorities below is based on appreciation of evidence. 5. No substantial question of law arises. 6. The appeal is dismissed. (Adarsh Kumar Goel) Judge December 16, 2008 (L.N.Mittal) ‘gs’ Judge 4