TaxTMI 
TaxTMI 
2005 (9) TMI 535
X X X X Extracts X X X X
X X X X Extracts X X X X
....ken as additional grounds of appeal and these were admitted by learned CIT(A). Before the learned CIT(A), it was mentioned that on verification in the case of M/s. Bellary Steel & Alloys Ltd. (in short BSAL) and the statement of Mr. Madhava, the then M.D. of BSAL, an opinion was formed by the Assessing Officer that transaction of the assessee-company with BSAL may be bogus. Such transaction was a lease transaction and on the basis of which the assessee has claimed depreciation to the extent of Rs. 1,67,23,582. Before the learned CIT(A), the learned A.R. relied on the following judgments on the issue that reopening is not valid. (i) CIT v. Nedungadi Bank Ltd. [2003] 264 ITR 545 (Ker.) (ii) Oil & Natural Gas Corpn. Ltd. v. Dy. CIT [2003] 262 ITR 648 (Uttaranchal) (iii) Parashuram Pottery Work Co. Ltd. v. ITO [1977] 106 ITR 1 (SC). 2.2 The learned CIT(A), has recorded his findings in para 3.5 of his order. As per the learned CIT(A), the assessment was reopened on the basis of survey under section 133A conducted on the premises of BSAL, Bellary. During such survey it was found that M.S. Rolls given on lease by appellant company to BSAL were not existing. This new info....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n should be fair and not necessarily due to failure of the assessee to disclose fully or partly some material facts necessary for assessment Bawa Abhai Singh v. Dy. CIT [2002] 253 ITR 83 (Delhi). 3. We have heard both the parties. It is a fact that notice under section 148 has been issued before the end of four years of the assessment year for which reopening has been done. In such a case notice can be issued in case it falls under Explanation 2( b) to section 147. As per this Explanation 2(b), the case will be deemed to be a case where income chargeable to tax has escaped assessment in case where no assessment has been made and it is noticed by the Assessing Officer that assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return. Section 143(1) speaks about the intimation. Assessment is made under section 143(3) and such assessment is made after issue of notice under section 143(2). In the instant case, before issue of notice under section 148, no notice under section 143(2) had been issued and no assessment had been made under section 143(3). Intimation cannot be equated with assessment. For this proposition the learned D.R.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urchase agreement with M/s. Kotak Mahindra Finance Limited and further the supply of rolls to BSAL in pursuance of lease agreement and the receipt of lease rent in the course of its business and accordingly the depreciation was rightly claimed by the appellant which was required to be allowed. The learned Commissioner (Appeals) erred in upholding the findings of the assessing authority that the lease was bogus, which was based on the statement obtained from BSAL in the course of survey under section 133A of the Act. The learned Commissioner (Appeals) ought to have appreciated that the assessing authority did not give opportunity to the appellant for rebuttal of the information obtained behind the back and also he ought to have appreciated that the appellant was not given the opportunity to cross-examine the persons who had been examined and who had given adverse statement against the appellant. The learned Commissioner (Appeals) ought to have appreciated the information obtained against the appellant were made use of to justify the disallowance which was opposed to the principles of natural justice in that no adequate opportunity was given to the appellant in this regard a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourse of survey, 361 rolls were found but, as per information furnished by the lessee, it should have been in possession of 3,702 rolls which were obtained on lease. It could not explain the discrepancy and whereabouts of the remaining rolls. (vii)None of the rolls in its possession contained distinctive markings of the financiers/lessors who leased these rolls. (viii)All the three transporters viz., Noble Roadlines, Mumbai, Sri Balaji Roadways and M/s. Madras Goods Movers, Chennai have clearly stated that they transported only bulk scrap and coal to the above company and denied to have transported M.S. rolls. Further, both the Chennai transporters stated that the bills and signatures found in assessee's premises are forged. (ix)Any machinery parts including SCGI Rolls transported into Karnataka State is liable for 2 per cent of entry tax but, lessee could not produce any evidence for payment of entry tax. (x)The so-called supplier viz., M/s. B.H. Enterprises, M/s. B.H. International at Mumbai and B.M. Steels (P.) Ltd. Chennai were enquired as to whether they had supplied the rolls to the lessee. Both the suppliers of Mumbai have denied that they have supplied any rolls....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ments and records to be kept for genuine lease transactions were not found at the premises of BSAL at the time of survey. (c)Transport bills and delivery challan do not contain the seal of sales tax check post though such rolls came from Maharashtra to Karnataka. (d)Neither the appellant nor KMFL furnished any document or proof for negotiating the supply of rolls from the supplier. (e)Original transport bills, original delivery challans and original report of commissioning not produced. (f)DDIT (Inv.) made enquiries and ascertained the weight of different coils. Weight of different types of coil is mentioned by Assessing Officer in his order. On the basis of such details, the Assessing Officer worked out the weight of coils transported through different invoices as under : Invoice No. No. of coils Weight of the coils Lorry No. 1088 26 49.9 tons MH-01-H-445 1089 24 50.2 tons KA-25-6772 1090 24 45.15 tons KA-25-9886 1092 29 59.9 tons MH-01-H-7129 A normal lorry having capacity of 10 tons cannot carry the above referred huge weight. (g)Investigation authorities recorded the statement of lorry driver and owne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e course of appellate proceedings before the learned CIT(A), the appellant filed written submission. It was argued that discrepancies in respect of documents relating to transportation are to be explained by KMFL as it was actually KMFL who purchased the assets. The appellant has obtained such assets under hire purchase agreement. It was argued that assets are identifiable even as of today. It was argued that opportunity in form of cross examination should have been given to the appellant to rebut the adverse statement given by the parties. In absence of such opportunity, reliance on the statements cannot be made. The Assessing Officer in his remand report submitted that statement of Mr. Dinesan was recorded in the presence of the A.R. of the appellant. 4.5 In rejoinder to remand report, the learned A.R. submitted that opportunity of cross examination cannot be equated with the recording of statement in the presence of A.R. of the appellant. Onus was on the Assessing Officer to have established that transaction is not genuine. 4.6 The learned CIT(A) required an additional report from Assessing Officer. The Assessing Officer stated that inspector visited the premises of BSAL a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1,43,49,598 C.S.T. 5,73,984 Finance Charges 15,00,000 Syndication fee 3,00,000 Total : 1,67,23,582 The learned D.R. drew our attention to the fact that central sales tax has been paid on the transaction. It was submitted that following statement/letter were given to the appellant. (a)Copy of letters of Shri Madhava. (b)Copy of statement of Shri Himanshu R. Mehta. (c)Copy of statement of Shri Dinesh. In spite of several requests for cross-examination the appellant has not been provided that opportunity. It is true that statement of Shri Dinesh was recorded in the presence of A.R. of the appellant but A.R. was not permitted to protect the interest of the appellant. It was submitted that A.R. was denied the opportunity to cross-examine. The various other statements that have been relied upon though mentioned as forming part of the assessment records have not been given to the appellant for rebuttal or cross-examination. These statements have been given to the appellant before the Tribunal. Those statements are contradictory to each other and are therefore not reliable statements of proprietor of Noble Roadlines was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not been collected. This shows that Shri Dinesh is not aware of the actual facts. Such deficiencies could have been reconciled during cross examination and opportunity for such cross examination has not been given. The Assessing Officer in his order has mentioned that suppliers of rolls do not have the capacity of manufacture but D.G.M. of BSAL stated that such persons have earlier supplied the rolls. Books of account of supplier are not traceable. It is further maintained that lessee has not maintained stock register. Non-maintenance of stock register by BSAL should not be held against the appellant. Copies of transport bills were provided by the BSAL and such bills contained the receipt, seal of BSAL. D.G.M., G.M. & M.D. of BSAL have been examined but the department has not questioned them on the genuineness of transport bills. It is being stated that bills produced by appellant do not tally with the bills produced by KMFL. There is nothing on record to infer as to how such bills were procured by KMFL. Statement of Shri Dinesh of KMFL has been proved wrong on the issue of sales tax. It is being argued by the department that Shri Dinesh was questioned about the veracity of the tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he materials by BSAL. The appellant has not undertaken the transportation of material. BSAL approached the appellant for lease of such rolls. The financier was not willing to enter into agreement with BSAL due to its financial instability. The fact that BSAL is financially unsound is clear from the fact that the company went before BIFR. The appellant is still to receive lakhs from BSAL and criminal proceedings have been initiated against BSAL and its M.D. In transaction of lease, it is normal for lessee to arrange for lifting of the plant and machinery from the premises of the supplier or for the supplier to deliver at the premises of BSAL. The appellant is interested only in getting the confirmation of delivery on the consignment note of the transporter with the seal of BSAL confirming the receipt of material. 4.10 In the case decided by Karnataka High Court of Avasarala Automation Ltd. v. Jt. CIT [2004] 266 ITR 178, the existing assets were sold and leased back to the vendor of that machinery. There was no registration of sale, nor was an identification of machinery. The appellant's case is completely different from the above insofar as the machinery has been purchased not fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from BSAL contain the receipt seal of BSAL and thus they are only genuine. The appellant has paid all concerned tax levies in regard to the purchase of goods as required by law as existing then. (e)The asset has been identified not only by the department officers but also by the insurance companies which hold contractual liabilities in the event of destruction of assets. (f)Since the transaction between appellant and KMFL has not been disbelieved, the asset would stand in the balance sheet of the appellant and since the asset has been used in the business of leasing, the appellant is entitled to depreciation. 4.13 The learned D.R. has also filed the written submissions. As per written submission, usual procedure followed in lease transaction and documents/records required to be kept in such transaction has been described as under : "The lessee who actually uses the rolls, places an order with the supplier of the rolls specifying the number of rolls, their specifications, quality and other details. As the lessee does not have money to finance the purchase of the said rolls, he enters into a lease agreement with the lessors for lease of the said rolls. The lessors, who ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(d)Statement of Shri Dinesan on 20-3-2002. (e)Detailed show-cause notice issued on 8-3-2002. (f)Learned CIT(A) fixed the appeal for hearing on 20-12-2002; 16-1-2003; 20-1-2003; 12-2-2004; 27-2-2004; 19-8-2004; 31-8-2004; 6-1-2005; 27-1-2005; 18-2-2005 and 25-2-2005. (g)Remand Report from Assessing Officer received on 13-1-2004 in response to letter of learned CIT(A) dated 20-1-2003. (h)Another report of Assessing Officer dated 20-12-2004 along with inspector's report. (i)Even before learned CIT(A); the appellant was not able to produce the original transportation bills and delivery challans. 4.15 Thereafter the learned D.R. pointed out the discrepancies noticed in the case of appellant and such discrepancies suggested that transaction of lease of M.S. Rolls is sham and not genuine. (i )No documents were found to show that written orders were placed to obtain the rolls on lease. No correspondence like obtaining quotations, providing specifications etc. with supplier found during survey of BSAL and no such details filed. (ii )During survey delivery challans of only five consignments found while BSAL has shown to have taken 80 consignments on lease from Financi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... KA-25/5888 21-8-95 23 or 24 19-8-95 Hospet. KA-25/5887 20-8-95 22 or 23 19-8-95 Hospet. KA-25/4526 19-8-95 21 or 22 20-8-95 Hospet. The above facts clearly suggest that above referred trucks have not transported the so-called rolls. (xi)Copies of transport bills show that rolls were delivered in 2 days while enquiries conducted by the department indicated that it takes 3 to 4 days for transporting rolls from Mumbai. (xii)Sri S. Madhava M.D. of BSAL admitted vide letter dated 3-10-2000 that all the lease transactions are only financing transactions. He showed his inability to prove the existence of the supplier of M.S. Rolls. (xiii)The so-called supplier M/s B.H. International, Mumbai and M/s. B.M. Steel Pvt. Ltd., Chennai denied to have supplied any rolls to the assessee. It was confirmed that bills were raised to facilitate financing from credit institution. Sale proceeds received from credit institution were returned to the lessee immediately. (xiv)Department made enquiries from M/s. Lakshmichand Agarwal, G.E. Road, I.T.I., Khurshipar, Bhilai Nagar, Durg, M.P., a manufacturer of rolls, in respect of weight of rolls. It w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s proved. (e) CIT v. Golcha Properties (P.) Ltd. (In Liquidation) [1997] 227 ITR 391 (Raj.) : The Tribunal should arrive at a finding that a transaction is genuine or not in the light of the basic primary facts proved on record. 4.16 In reply, the learned A.R. submitted that the appellant and BSAL are not hand in glove as alleged by learned D.R. The appellant has filed a criminal case against BSAL and its M.D. A warrant of arrest has been issued against Shri Madhav, M.D. of BSAL. The learned D.R. has submitted that substantial opportunity has been given to the appellant by the Assessing Officer as well as learned CIT(A). The learned A.R. drew our attention to the remand report available at pages 186 to 189 of DPB-1 where the learned Assessing Officer has mentioned that the delay in sending the remand report is on account of the fact that efforts were made to locate the parties. It was argued that opportunity was given by learned CIT(A) to the Assessing Officer to substantiate the case and to produce the persons from whom statements have been recorded for cross examination. The learned A.R. drew our attention to invoices available at pages 134 to 138 of DPB-1 and such invoices....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on insofar as there is no veil to pierce and the transaction as done by the appellant is an open book and genuine one. The decision in the case of CIT v. H.H. Maharani Sethu Parvathi Bayi [1998] 232 ITR 678 (Ker.) does not apply insofar as the revenue has not adduced any evidence to show that the appellant's transactions were not genuine. The decision in Sumati Dayal's case (supra) does not apply to the appellant's case insofar as the surrounding circumstances and the test of human probabilities show that the transaction of the appellant is bona fide and genuine. The decision in the case of Daulat Ram Rawatmull ( supra) squarely placed the onus on revenue insofar as the apparent and the real is the fact that the appellant had entered into hire purchase transaction and leased the assets had received lease rental, had offered the lease rentals to tax, had identified the assets. The decision in the case of Dhansiram Agarwalla (supra) mentioned that totality of the circumstances and the combined affect is to be considered. When looked from the angle, the transaction between the appellant and BSAL is genuine and no conclusion can be canvassed as nothing to the contrary has been proved o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by Assessing Officer on 11-1-2002. Reply vide letter dated 11-1-2002 has been filed. Summon under section 131 issued to Associate V.P. KMFL on 15-1-2002 for 22-1-2002. On 4-2-2002, Shri Dinesh, Executive of KMFL attended and he was asked to file certain details. Hearings were conducted on 25-2-2002 and 27-2-2002. Show-cause notice issued on 8-3-2002 and summon under section 131 issued to Shri Dinesh for 20-3-2002. Statement of Shri Dinesh recorded on 20-3-2002 in the presence of A.R. of the assessee; and copy of statement given to A.R. for his comments. The appellant filed reply to show cause dated 8-3-2002 on 14-3-2002. The A.R. of the appellant was given copy of statement of Shri Dinesh and was required to file the comments by 21-3-2002. No comments filed. Assessment order passed on 28-3-2002. 5.1 We have gone through the record of learned CIT(A). Adjournment on 20-12-2002 and 16-1-2003 were sought by the appellant. On 20-1-2003, details were filed and remand report was sought by learned CIT(A). Remand report received on 20-1-2004 and copy of such remand report given to appellant vide fixation notice dated 21-1-2004. Adjournment sought by learned A.R. on 5-2-2004, 13-2-2004 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er section 131 to attend on 23-5-2003. Summon sent to M/s. Noble Roadlines and M/s. B.H. International received back unserved. Summon issued in the name of Shri S. Madhava was returned as unserved by the Inspectors. This also shows that opportunity to cross-examination not afforded. 5.3 During the course of proceedings before us, the learned D.R. has filed copies of statements of the following persons : (a)Statement of Shri Shahajahan Nawadhar Khan, Prop. Noble Roadlines dated 12-6-2000. (b)Statement of Shri Himanshu R. Mehta, partner of M/s. B.H. International dated 26-6-2000. (c)Mahazar dated 8-6-2000. (d)Statement of Shri R.K. Jain, G.M. (Steel Melting) of BSAL recorded on 1-6-2000. (e)Stock Inventory dated 1-6-2000 of BSAL. (f)Statement of Shri Ratanri, Senior Manager (Taxation) of BSAL dated 1-6-2000. (g)Statement of Shri Ahmed Khan A. Bugawadi, transporter dated 6-6-2000. (h)Statement of Shri Abdul Khader, Truck driver, dated 7-6-2000. (i)Statement of Shri B. Ramaswamy G.M. (Fin. & Accounts) BSAL dated 13-6-2000. (j)Statement of Shri S. Madhava, MD, BSAL, dated 7-8-2000. The above referred statements have been referred by the investigati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... around 3 to 5 years. The appellant obtained these rolls under hire purchase and such agreement was for five years. Asset was also leased for five years. The appellant was fully aware that the asset will be in the form of scrap after the end of lease period. Under such circumstances, it is not unusual for the lessor to have been satisfied regarding receipt of assets by lease by obtaining copies of invoices, delivery challan, transport receipt and installation report particularly when transport receipts contained a noting on behalf of the lessee that material has been received. It can be safely inferred from the sequence of events that appellant neither verified nor made attempts that copies of documents submitted by lessee were incorrect or false. However, when appellant was confronted with the fact that such assets were not found during the course of survey on the premises of BSAL, the appellant vide letter dated 11-1-2002 submitted as under : "We would like to mention the lease agreement entered into by the assessee is genuine operating lease. The assessee would be in a position to identify its assets leased out at the lessee's place if required we would also like to mention t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry of machinery has been made. 5.6 Another important aspect is that the revenue has not allowed deduction of hire purchase amount. In case, the transaction was purely a financial transaction, then amount paid as hire purchase of KMFL was to be allowed as deduction. By not allowing this deduction, revenue has accepted that assets have been delivered. The appellant has not claimed deduction of amount paid under hire purchase, corresponding to the cost of machinery as depreciation has been claimed. Such deduction has not been claimed in subsequent years also. The department inconsistence with its finding that depreciation is not to be allowed should have allowed the amount paid under hire purchase. In case depreciation is not allowed then lease rental in its entirety are not to be taxed. Lease rental in subsequent years have been offered for tax assessment for assessment year 1997-98 has become final as no reopening is possible at this moment. Moreover it will be relevant to analyse the hire purchase transaction and lease transaction. Hire purchase.-Appellant obtained funds of Rs. 1,40,75,530 from KMFL and gave a deposit of Rs. 45 lakhs. Such deposit was to be adjusted against h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isted on. (ii)Where the effect of an agreement is that the ownership of the subject is at once transferred to the lessee (e.g., where the lessor obtains a right to sue for arrear instalments but no right to recovery of the asset), the transaction should be regarded as one of purchase by instalments and no deduction in respect of 'hire' should be made. Depreciation should be allowed to the lessee on the entire purchase price as per the agreement. (iii)Where the terms of agreement provide that the equipment shall eventually become the property of the hirer or confer on the hirer an option to purchase the equipment, the transaction should be regarded as one of hire purchase. In such cases the periodical payments made by the hirer should for tax purposes be regarded as made up of : (a )Consideration for hire, to be allowed as deduction in the assessment; and (b)Payment on account of purchase, to be treated as capital outlay, depreciation being allowed to the lessee on the initial value (i.e., the amount for which the hired subject would have been sold for cash at the date of the agreement.) The allowance to be made in respect of hire should be the difference between the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d out to Bellary Steels and Alloys Limited. Thanking you, Yours faithfully, For MAA Communication Bozell Ltd.For Bellary Steels & Alloys Ltd. Sd/ xxx Sd/ xxx B.P. Ravishankar, Director Authorised Signatory From the above certificate it is clear that the appellant as well as BSAL have admitted that leased assets are lying at the premises of the lessee. This admission is only on the basis of physical inspection of the asset as done in the presence of the inspector of the department. The certificate, therefore, an evidence to show that assets leased are available at the premises of the lessee and depreciation cannot be disallowed on the ground that such assets were not found at the time of survey. The stock inventory was prepared at the back of the assessee and the assessee contended before the Assessing Officer that assets are available. Hence it is held that the depreciation on such leased assets identified at the premises of BSAL will be considered as assets of the appellant for depreciation and on such assets depreciation may not be allowable to BSAL. 6.1 Kapurchand Shrimal v. CIT [1981] 131 ITR 451 (SC) - In this case the Assessing Officer made an asses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch assets are still available in the business premises of the BSAL. 6.3 CIT v. Rayala Corpn. (P.) Ltd. [1995] 215 ITR 883 (Mad.) - In this case reassessment notice was issued to the assessee. The assessee ignored the notice, the information as desired by the Assessing Officer was not furnished. the Assessing Officer therefore concluded best judgment assessment. The Tribunal took evidences brought in the first instance before it by way of affidavits on behalf of assessee and entertained arguments on behalf of assessee that there were some materials before the Assessing Officer and the affidavit filed by M.R. Pratap in the assessment year 1965-66 which was not considered by the ITO. In the light of above facts, the matter was set aside. The learned High Court remitted the matter back to the Tribunal for consideration of the matter in all aspects strictly in accordance with law and for a decision whether the ITO has committed any error in his best judgment assessment by relying upon the material that were available to him and drawing an inference from such material. This case is of no help to the revenue by implication it means the revenue cannot rely on the evidences placed before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The assessment order becomes effective only when it is issued from the office of the assessing authority. The learned High Court therefore directed and application under section 19 should be allowed and fresh opportunity should be given. This case law is of no help to the revenue as in the instant case the appellant is not asking for the fresh opportunity before the Assessing Officer. 6.6 CIT v. H.H. Maharani Sethu Parvathi Bayi [1998] 232 ITR 678 (Ker.) - In this case the assessee transferred 4,000 shares of a company by way of share capital to the firm in which he was a partner. The Income-tax Appellate Tribunal upheld the levy of capital gains on the transfer of such shares. In view of the Supreme Court Judgment in the case of Sunil Siddharthbhai v. CIT [1985] 156 ITR 509 ; the assessee filed an application and that application was allowed as according to the judgment of the Supreme Court, no capital gain was liable. The revenue filed an application against the order of the Income-tax Appellate Tribunal vide which it recalled its earlier order. In the application, the revenue gave the facts which suggested that the shares were transferred to evade tax on the capital gain as t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ivable should be more than the amount advanced for acquiring the asset. 6.8 CIT v. Daulat Ram Rawatmull [1973] 87 ITR 349 (SC) : In this case fixed deposits were issued by the Jamnagar Branch of a bank on the basis of amounts received in Calcutta. These were in the name of the sons of the partners of the partnership firm. The partnership firm had an overdraft account against the collateral security of the above referred two fixed deposits. The question was as to whether the fixed deposits could be taxed in the hands of the firm. The Tribunal noticed that explanation with regard to the source of the deposit in the personal assessment was found to be incorrect. Amounts were tendered at Calcutta, the place where the firm was doing business. The deposits were offered as collateral security. The learned High Court held that there is no nexus found between the facts found and the conclusions drawn. The Supreme Court also upheld the finding. The learned Supreme Court observed that there should be some direct nexus between the conclusion of fact arrived at and the primary facts upon which such conclusion taken place. In the instant case the appellant as well as the revenue are arguing t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or bogus purchases in case sales have been accepted and closing stock is accepted as opening stock of next year. The learned High Court held as under : "Even no addition can be made for bogus purchase if sales have been accepted and closing stock is accepted as opening stock of next year. In this respect observation in the case of Fazilka Co-operative Sugar Mills Ltd. (supra) may be referred where it has been held : It has been further found that despite having made an addition of more than Rs. 7 lakhs in the value of the stock in hand, no corresponding benefit was given by the revenue to the assessee for the assessment year 1992-93. This factual position has not been disputed. However, it has been contended that the assessee having not claimed the benefit, it was not entitled to make a grievance on that account. We think that the plea is untenable. If the assessee had claimed the benefit, the revenue would have contended before the Tribunal that the assessee has accepted the addition. Otherwise, the revenue does not give the benefit. So, it wants the best of both the sides. Still further, it appears to us that the revenue is only trying to fiddle with the figures. In fact....