2008 (8) TMI 126

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....NT This appeal has been filed by the Revenue against the judgment of the learned Tribunal dated 16.5.2005 deciding cross appeals of the assessee and the Revenue whereby dismissing the appeal of the Revenue and partly allowing the appeal of the assessee, and maintaining the gross profit rate to be applied at 2.51%. The appeal was admitted on 4.4.2006 by framing the following substantial quest....

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....2.51% in 1999-2000, and 16.04% in assessment year 1998-99. Against that order the assessee filed appeal, and the learned Commissioner upheld the invoking of Section 145, and examined the aspect of gross profit rate to be applied and considered that gross profit rate declared by the assessee during the year is far less than the G.P.Rate (gross profit rate) shown by the other assessees who are in th....

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....it was considered that in resorting to the application of Gross Profit rate on the basis of comparable cases, it is necessary that those cases, should be, in fact, comparable with reference to the volume of business, location and other host of factors, and it was found that the objections raised by the assessee were not however dealt with, and therefore, in the absence of any change in the factual....

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....been upheld right upto the Tribunal. Learned counsel for the Revenue is not in a position to dispute this factual aspect of the matter about Gross Profit rate of 2.51% having been applied for the assessment year 1999-2000, and that having been upheld by the learned Tribunal. Since the question as framed only comprehends the ignoring of the relevant material on the part of the Tribunal concer....