TaxTMI 
TaxTMI 
2011 (10) TMI 631
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....r: "1. That the CIT(A) erred in confirming the addition of Rs. 13,72,590/-. 2. That the CTT(A) erred in comparing the results of the year under appeal with that of immediately preceding year. Each year is a separate year." 3. The ground raised by the revenue reads as udder: "On the facts and in the circumstances of the case and in law, the Ld. CIT(A), has erred in deleting the addition on account of loading, unloading and tempo expenses of Rs. 6,00,000/- made by the A.O., without appreciating the facts of the case that the assessee failed to produce complete books of accounts, vouchers, details of the parties, etc. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the assessing officer be restored." 4. The ....
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....arose in assessment year 2004-05 also and in that year, the entire addition was confirmed by his order dated 14.08.2007 against which the assessee filed 2nd appeal before the Tribunal and the Tribunal allowed part relief to the assessee in I.T.A.No. 3924/Ahd/2007 dated 01.09.2008. Ld. CIT(A) has noted on page 3 of this order that the facts are the same in the present year as compared to the facts in the assessment year 2004-05. He further noted that the tribunal has allowed relief to the assessee of Rs. 3 lacs and in the light of this decision of the Tribunal, the Ld. CIT(A) allowed relief of Rs. 6 lacs in the present year and confirmed the balance disallowance ofRs.13,72,590/-. Now, the assessee is in further appeal before us for the part ....
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....d, the resultant GP will be 27.35%, which is not possible in this line of business. It is submitted that still, the Tribunal confirmed the disallowance of Rs. 7,51,186/- in that year which is resulting in GP of 25.22% in that year, which is also not achievable in this line of business. He submitted that after reducing the disallowance confirmed by the Tribunal in assessment year 2004-05, percentage of these four expenses in that year to gross receipt is worked out and when the same is compared with percentage of these expenses to gross receipt in the present year, it is seen that except tempo charges, all other three expenses are lower in the present year in percentage terms. For tempo charges also, if same percentage is maintained, then di....
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.... assessee in that year increased from 17.12% to 19.19%. The Tribunal has allowed relief to the assessee of Rs. 3 lacs and confirmed the balance addition of Rs. 7,51,186/- in that year. Hence, we feel that this request of the assessee that the average GP of the earlier two years should be adopted in the present year, is not acceptable because in the preceding year, the increase in GP from 17.12% to 19.19% was factored in by the tribunal while allowing part relief to the assessee of Rs. 3 lacs in that year. We also find that although it is noted by Ld. CIT(A) in the present year that facts are identical in the present year as compared to assessment year 2004-05, but one difference in facts is very important. This difference is that even when ....
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....the Tribunal in the preceding year did not allow a lump sum relief of Rs. 3 lacs but in fact, the tribunal allowed relief of Rs. 1 lac for each head, total Rs. 3 lacs. This in our opinion means that head-wise disallowance of expenses was confirmed by the tribunal in the preceding year and the Tribunal did not hold that 25.22% G.P. rate is to be adopted being reasonable in this business. Hence, in our considered opinion, the percentage of these expenses to gross receipt in the preceding year should be adopted as reasonable in the present year. When we do so, we find that percentage of expenses under two heads is below that of the preceding year. For Tempo charges, the percentage in the present year is higher by 1.88% and if the same percenta....