COMMISSIONER OF INCOME TAX Vs. KAMADAR AND CO

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS is an application under S. 256 (2) of the IT Act, 1961, requiring this Court to issue a direction to the Tribunal Appellate, Jaipur Bench, Jaipur to state the case and refer the following question of law said to be arising out of the Tribunal's order passed in ITA No. 1578/Jp/94 relating to asst. yr. 1986-87 decided on 5th March, 1995, in the case of respondent-assessee. The question requires to be referred to this Court reads as under :

(3.) MR . Bhandawat urged that the account of suppress sales would include the amount of purchases of the goods which have been shown by the assessee and not disclosed in his books of accounts and, therefore, higher gross profit rate was applied in estimating income on best of his judgment, in as much as, the assessee must have not shown the said purchases also. We are unable to fathom any foundation for this contention in the order of the Tribunal. The orders by the ITO or by the Tribunal nowhere referred to suppressed purchases to be a part of suppressed sales, on which, the gross profit rate of 43 per cent was applied to estimate the income arising out of such sales. No such question of fact which does not arise out of the proceedings can be permitted to be raised. In fact the additions were made in the income of the assessee on three counts by the ITO. So far as, relevant for the present purposes, are concerned Rs. 90,836 were added as gross profit on account of suppressed sales. This amount represented the difference between the amount of the alleged underinvoicing of the sale price in respect of addition. The Tribunal found that the assessee has properly explained along with supportive material that the assessee has in fact billed lesser amount of consideration because the purchasers have accepted lesser amount of goods, therefore, this could not have been added in the income. This part of the finding has not been made subject-matter of the question sought to be referred to this Court. It appears that this kind of question was made subject-matter of IT Ref. Appln. No. 42/98 against the very same period and that reference application has been dismissed by the Division Bench of this Court on 13th Aug., 1999, by holding that no question of law as the finding has been reached at the appreciation of evidence.