M.As. (Rect) Nos.80/KB, 81/KB of 2002 in Reference I.T.As. Nos.685 and 712 of 2000-2001, decided Versus M.As. (Rect) Nos.80/KB, 81/KB of 2002 in Reference I.T.As. Nos.685 and 712 of 2000-2001, decided
ORDER
AGHA KAFEEL BARIK (ACCOUNTANT MEMBER).‑‑‑ The Department has filed two miscellaneous applications against two different orders of the Tribunal for the same assessment year i.e. 1996‑97 an order passed vide I.T.A. No.685/KB of 2000‑2001, dated 31‑5‑2001 on assessee's appeal and another order vide I.T.A. No.712/KB of 2000‑2001, dated 30‑10‑2001 on departmental appeal, both filed against order of A.A.C. dated 13‑1‑1999. Since issues taken up in both the miscellaneous applications are more or less common, same are decided as under.
2. The assessee had filed appeal against A.A.C.'s order regarding confirmation estimate of sales and application of G.P. @ 4%. In its order, dated 31‑5‑2001, while adjudicating assessee's appeal the Tribunal confirmed estimate of sales at Rs.13 Millions whereas it reduced G. P. from 4 % to 3.5 %. Subsequently, on departmental appeal the Tribunal vide its order, dated 30‑10‑2001 held that the order passed earlier on 31‑5‑2001 by the Tribunal reveals that all the issues involved in the departmental appeal have been determined and decided in appeal of the assessee, hence the present cross‑appeal on the same issues has become infructuous. Accordingly departmental appeal was dismissed by the Tribunal. The learned D.R. pointed out that there was at least one issue vide Ground No.2 of the departmental appeal regarding deletion by the A.A.C. of an addition of Rs.2,99,470 made by the D.C.I.T. under section 13(1)(aa) which was not adjudicated by the Tribunal. However, para. 12 of Tribunal's order dated 31‑5‑2001 was referred which reads:-
"So far as Grounds Nos.2 and 3 are concerned, we find that sufficient relief has already been allowed in respect of discount as the learned A.A.C. has lastly observed in his order that `however, considering that the nature of trade involves allowance of discount as the matter of routine, it would be appropriate to complete the assessment, by way of estimating the sales at Rs.13,000,000 and applying G.P. rate of 4 % thereon. The learned counsel for the appellant while not much disputing the sales estimate still feels aggrieved with the G.P. rate which according to him is still excessive, against the declared G. P. rate of 2.38 %. As no specific instance has been given by the officers below in, support of the G.P. rate of 4% we consider it proper to reduce the same to 3.5 % while maintaining the sales estimate of Rs.1,30,00,000. The order of the learned A.A.C. will stand modified accordingly."
2. Thus, the Tribunal upheld the order of the A.A.C. who had observed that trade discount was covered in the gross profit, by the estimate of sales and application of G.P. rate and had accordingly modified the impugned, assessment order of the D.C.I.T. passed under sections 62/65 by estimating sales at 13 Millions as against declared sales of 12.4 Millions by the assessee, whereas the D.C.I.T. had not made any estimate of sales and had not applied any G.P. rate and, instead had computed total income by making an addition of Rs.2,99,470 under section 13(1)(aa), another addition of Rs.50,000 under section 13(1)(aa), and certain addbacks out of profit and loss account.
3. In view of the aforesaid discussion we do not find any mistake apparent from the two orders of the Tribunal dated 31‑5‑2001 and dated 30‑10‑2001. Rectification applications filed by the Department are accordingly dismissed.
C.M.A./M.A.K./339/Tax(Trib.) Application dismissed.