TaxTMI 
TaxTMI 
2019 (11) TMI 412
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.... ld.counsel for the assessee at the very outset out submitted that identical issue was involved in the Asstt.Year 2008-09 and 2010-11. The dispute travelled upto the Tribunal in ITA No No.1163 and 1164/Chd/2013. The Tribunal has decided this issue against the assessee and appeal preferred by the assessee stands admitted by the Hon'ble High Court. Therefore, in view of the above development, he submitted that both these issues are covered by order of the Tribunal. However, he put a caveat and alleged that the Tribunal failed to adjudicate the issue whether the income on sale of property deserves to be assessed as "business income" or under the head "capital gain". He took us through finding of the Tribunal recorded in para-12 of the order dated 11.3.2016. On the other hand, the ld.CIT-DR contended that since identical issue has been decided against the assessee, therefore, both these grounds be rejected. 5. We have duly considered rival submissions and gone through the record. We find that except variation in quantum, identical issues have been considered by the Tribunal. The discussion made by the Tribunal in these two assessment years read as under: 8. Ground Nos.2 and 3 of a....
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....see he is a contractor and engaged in the business of civil construction. He further noted that apart from executing contract work, he is also engaged in construction of building and selling the same regularly. The Assessing Officer rejected the contention of the assessee that the construction and sale of building by him should not be treated as his business income. The Assessing Officer also rejected the other contention of the assessee regarding estimation of profit @ 30%. The Assessing Officer noted that the said estimation was based on the profit earned in similar kind of construction business. Therefore, the profit on sale of property has been worked out at Rs. 2,70,000/- by the Assessing Officer and the same was treated as undisclosed income of the assessee. This amount of Rs. 2,70,000/- was added to the total income of the assessee. 11. On appeal, the learned CIT (Appeals) upheld the addition for the reasons stated in para 6.1 of the impugned order and, hence the assessee is in appeal before the Tribunal. 12. We have heard the rival submissions and perused the materials available on record. Shri Vishal Mohan, learned counsel for the assessee vehemently argued that the di....
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....ss, the price of raw material, labour etc. the rise in price index as notified by the Central Government from time to time if applicable and if the Assessing Officer proceeds to rely upon assessments of other assessees engaged in similar business to do so only after determining points of similarity etc. At this stage, it would be appropriate to clarify that the word similar is not synonymous with the word 'identical'. Factors referred to above are merely illustrative and not exhaustive of the circumstances that may or may not be taken into consideration. At this stage, it would be appropriate to reproduce a few words from Dhakeswari Cotton Mills Ltd. Vs. CIT (1954) 26 ITR 775 (SC) so as to place our conclusions in their correct perspective:- ".....The Income Tax Officer is not barred by technical rules of evidence and pleadings, and he is entitled to act on material which may not be accepted as evidence in a Court of law, but in making the assessment under subs. (3) of s. 23 the ITO is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment....
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....rmation. He must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordship thinks, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; though there must necessarily be guess work in the matter, it must be honest guess work. In that sense, too, the assessment must be to some extent arbitrary. Their Lordships think that the section places the officer in the position of a person whose decision as to amount is final and subject to no appeal, bust whose decision if it can be shown to have been arrived at without an honest exercise of judgment, may be revised or reviewed by the Commissioner under the powers conferred upon that official by section 33. " 12. It would also be necessary to refer to another judgment in State of Kerala Vs. C. Velukutty, 1966 ITR Vol. (LX) 239, wher....
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....bserve here that the assessee failed to give his past tax history. The assessee has also not shown any profit on sale of immovable properties. It is evident from the record that the assessee is executing contract work and is also engaged in the construction of building and selling the same regularly. We may also observe there that the gross profit rate cannot be uniform in all the years and the profit rate depends on many factors. Therefore, the gross profit rate of 21% for the year under consideration should not be guiding factor in other years. Accordingly, we direct the Assessing Officer to apply a profit rate of 21% as against 30% applied by the revenue authorities. The Assessing Officer should give a relief to the assessee accordingly. Thus, ground Nos.2 and 3 of the appeal are allowed partly." 6. Since the appeal at the instance of the assessee impugning the above finding has been stated to be admitted by the Hon'ble Himachal Pradesh High Court, therefore, in the fitness of things, we deem it appropriate that, let this issue be remitted back to the file of the Assessing Officer for adjudication in accordance with ultimate outcome of the issue after the decision of the Hon'bl....
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....t lead the inference with same is unaccounted. Just because surrender has been retracted does not empower the revenue to make unnecessary additions. The abstract of the cash of Shri. Rajesh Popli has already been placed on record. No discrepancy in the same has been pointed out. His brother Shri. Rajesh was owned case as per his books of account of Rs. 3,71,084.77. The sister and brother in law of the assessee had owned the cash of Rs. 3 lakhs and their statement was also recorded during the course of proe3eings under section 132 of the Income Tax Act, 1961. The father in law of the assessee Shri. Vijay Kishan Sharma's cash of Rs. 1,50,000/- was lying in the hosue of the assessee and confirmation in this regard is placed on record for your kind perusal and ready reference." 9. Thereafter, the ld.AO has made reference to the statement of the assessee recorded during the course of survey conducted at the business premises, and ultimately held that out of Rs. 21,46,150/-, a sum of Rs. 8,00,503/- was added in the case of Shri Rajesh Popli and balance amount of Rs. 13,45,647/- remained unexplained which required to be added in the hands of the assessee. Appeal to the CIT(A) did not bri....