2020 (1) TMI 1039

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....as 'the Act', for short) has been filed by the assessee which was admitted by a Bench of this Court on the following substantial questions of law: a) Whether the Assessing Officer was justified in law in not following the direction of the order passed by Tribunal dated 17.12.2009, wherein it has held that the undisclosed income has to be calculated at 2% of total turnover taking the average of subsequent three years on the facts and circumstances of the case? b) Whether the Tribunal was justified in law in holding that the Assessing Officer has rightly given effect to the direction of the Tribunal on the facts and circumstances of the case? 3. Facts giving rise to the filing of this appeal briefly stated are that the ap....

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.... Division Bench of this Court vide order dated 25.07.2014. 5. In compliance of the order passed by the Tribunal, the Assessing Officer by an order dated 17.01.2008 adopted gross profit at the rate of 2% on undisclosed turnover and arrived at an income of Rs. 21,80,593/-. However, the Assessing Officer adopted the undisclosed income of Rs. 62,27,305/- declared by the appellant in the block return filed on 14.07.2003. The appellant filed an appeal before the Tribunal against the order of the CIT (Appeals), which was dismissed by an order dated 15.12.2008. Being aggrieved, the appellant filed an appeal before the Tribunal which was dismissed by an order dated 13.08.2009. In the aforesaid factual background, this appeal has been filed. 6.....

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....F KERALA' 91 ITR 18 (SC). 7. On the other hand, learned counsel for the revenue has submitted that the Assessing Officer, incompliance with the directions issued by the Tribunal as contained in the order dated 17.12.2007, has assessed the gross profit at 2%. It is further submitted that the appellant himself had returned undisclosed income of Rs. 62,27,305/- in the block return of income filed on 14.07.2003 and therefore, the total undisclosed income as per the return filed by the appellant himself has been taken at Rs. 62,27,305/- and the gross profit has been assessed at 2%. Thus, the Assessing Officer has acted within the scope of the directions issued by the Tribunal and the order passed by the Assessing Officer has rightly been uphe....

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....arable cases have not been shown to be comparable by the Department in the strict sense of the term, which assessments have been framed much after the search in the case of the assessee. For the reasons mentioned above, we are of the opinion that it would be only reasonable to estimate the GP in the range of 2% taking the average of subsequent three years. We direct the AO to recalculate the addition on this basis." 9. Thus, from perusal of the aforesaid paragraph, it is evident that the Assessing Officer was directed to re-calculate the addition at the rate of 2% on the gross profit. The Tribunal nowhere has said that the undisclosed income which was filed by the appellant himself should not be taken into account. It is also pertinent t....