COMMISSIONER OF INCOME TAX Vs. RANJEET KUMAR SETHIA

JUDGEMENT

(1.) HEARD learned Counsel for the appellant.

(2.) THIS appeal is directed against the order of the Tribunal, Jodhpur Bench, Jodhpur, dt. 20th Jan., 2005. The appellant urges that two substantial questions of law arise in this case for consideration; one relating to deleting the additions made under Section 68 by the AO in the income of the assessee as unexplained cash credit and second relating to the applicability of invoking Section 44AF of the Act of 1961 for making the assessment at the fixed percentage of its turnover.

(3.) SO far as the second issue is concerned, Section 44AF in terms is clear that it applies only to wholesale (sic -retail) trader who is (sic -not) involved in wholesale trade. The Tribunal has come to the conclusion that Revenue has failed to prove that assessee was rightly assessed when he has produced document before the assessing authority that he holds the licence for wholesale trade and, therefore, the presumption has not been rebutted by the Revenue. If it wanted to invoke Section 44AF, burden was on the Revenue to prove that notwithstanding holding license for wholesale trade only, the assessee was in fact doing retail business. Then essentially it remains a finding of fact whether assessee was a retail trader or wholesale trader, and does not give rise to question of law. In view thereof, no substantial question of law does arise for consideration in this appeal. The appeal fails and is hereby dismissed.