AI Structured Summary
Not yet generated for this judgment
Judgment
We have heard learned counsel for the appellant. The assessee has preferred this appeal proposing following substantial questions of law:-
(i) Whether the learned ITAT has any material on record to observe that any discrepancy has been found in the stock as on the dale of survey?
(ii) Whether the learned ITAT is justified to uphold the addition of Rs. 80,000 observing that it is being made on agreed basis, despite the fact that the counsel for the assessee who argued the case before the ITAT has never consented to any such addition?
(iii) Whether the learned ITAT is justified to sustain any addition in the total income, when in the books of accounts, no discrepancy has been found and even books of accounts have not been rejected and section 145 of the income tax Act not applied?
(iv) Whether there was any reasonable basis with the income tax Appellate Tribunal for sustaining an addition of Rs.80,000/- in the total income of the Assessee?
The assessee declared, in its return for the assessment year 1995-96, total sale of Rs. 6.77 crores and GP rate of 17.97%. During survey u/s 133A of the income tax Act, 1961 (for short, ''the Act''), on 24.1.1995, the assessee surrendered a sum of Rs. 10 lakhs on account of excess cash, which amount was included in profit and loss account of the firm at the time of filing of the return. In the pre-survey period, the GP rate was 18% of the sales but in the post-survey period, the same was shown as 17.73%. On the basis of comparative study, GP rate of 18.5% was applied.
Before the Tribunal, taking into account totality of facts, addition of Rs. 80,000 was sustained, was agreed to on behalf of the assessee, as noticed in para 2.2 of the impugned order of the Tribunal, which is extracted below:-
2.2. ... Taking into consideration, the totality of the facts, we are of the considered opinion that it would be in order if trading addition of Rs. 80,000 is sustained. We order accordingly. An announcement to this effect was made during the course of hearing and both the sides agreed to it. These grounds are, therefore, partly allowed.
Only contention raised by the learned counsel for the appellant is that addition of Rs. 80,000 was not justified as the assessee never agreed to the same.
Question whether assessee agreed to the addition proposed by the Tribunal or not, cannot be gone into in this court, in view of specific finding recorded in the order of the Tribunal, which the assessee never disputed before the Tribunal.
Following observations of Hon''ble the Supreme Court of India in Shankar K. Mandal and Others Vs. State of Bihar and Others, throw light on this legal issue:-
It is not open fur the appellants to take such stand before this Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the course lo be adopted is well known.
If really there was no concession, or a different stand was taken, the only course open to the appellant was to move the High Court in line with what has been said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . In a recent decision Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. (P. 527)
In view of the fact that the assessee agreed to the said addition before the Tribunal and the settled legal position, the correctness of the Edition cannot be gone into.
No substantial question of law arises. The appeal is dismissed.