High Court Of Allahabad
CIT, Allahabad vs. Prayag Wines
Assessment Year : 2005-06
Section : 145
Tarun Agarwala And Dr. Satish Chandra, JJ.
IT Appeal No. 491 Of 2009
May 8, 2014
1. This is an appeal filed by the Income-tax Department under section 260A of the Income-tax Act, 1961, against the order passed by the Income-tax Appellate Tribunal, Lucknow, for the assessment year 2005-06.
2. The assessee caries on the business of purchase and sale of country liquor, Indian made foreign liquor and beer through 28 shops at various locations in Allahabad, Pratapgarh and Jaunpur districts. For the said assessment year, the assessee filed his return under section 139 of the Act disclosing the total income of Rs. 14,99,890 and claiming refund thereon. The case was processed under section 143(1) of the Act resulting in refund of Rs. 6,83,671 which was issued to the assessee. Subsequently, the case of the assessee was selected for the scrutiny and a notice under section 143(2) of the Act was issued to the assessee. The Assessing Officer, subsequently, passed an order under section 143(3) of the Act computing the total income of the assessee at Rs. 65,15,451. The Assessing Officer observed in its order that the assessee had disclosed the gross profit of Rs. 1,39,27,677 which was on the lower side and that the gross profit works out to Rs. 1,89,00,000, thus, resulting in extra profit addition of Rs. 49,72,323.
3. The reason for enhancing the income was rejecting the books of account and applying the provision of section 145(3) for estimation of gross profit. The rejection of the books of account was on account of the fact that cash memo for individual sales was not issued and that a single cash memo was issued for each day. The Assessing Officer also noticed that the opening and closing stock of each shop was not verifiable.
4. The assessee being aggrieved by the assessment order filed an appeal, which was allowed by the Tribunal and the books of account was accepted and the gross profit indicated by the assessee was affirmed. The Income-tax Department being aggrieved by the appellate order has filed the present appeal.
5. We have heard Sri Shambhu Chopra, the learned counsel for the appellant and Sri Ashish Bansal, the learned counsel for the respondents.
6. The learned counsel for the appellant submitted that the Tribunal has committed an error in accepting the books of account and gross profit. The learned counsel submitted that the Assessing Officer was justified in rejecting the books of account in the light of the fact that only one cash memo was being issued every day, which was insufficient. On the other hand, the learned counsel for the assessee submitted that there was nothing wrong in the procedure followed by the assessee in issuing one cash memo each day for the petty sales and that no adverse inference could be drawn nor the books of account could be rejected on these grounds. Further, the net profit rate had increased in comparison to the earlier years and that the books of account were produced and the movement of goods were verifiable from the stock registers maintained under the Excise Act and, consequently, the sales which were recorded in the stock registers was easily verifiable.
7. Having heard the learned counsel for the parties, we are of the view that it is not necessary that a cash memo is required to be issued for each and every sale and, consequently, books of account could not be rejected on the sole ground that only one consolidated cash memo was issued at the end of the day.
8. In Ramji Lal & Sons v. Commissioner of Sales Tax  50 STC 344 the Allahabad High Court has held that no adverse inference against the veracity of the account maintained by the assessee could be drawn nor the assessee’s account books could be rejected on the ground of not issuing separate cash memo in respect of petty sales and in issuing a consolidated cash memo at the end of the day. The same view was reiterated by the Allahabad High Court in the case of Commissioner of Sales Tax v. Vishnuchandra Vipin Chandra  50 STC 345, wherein the court held that failure to issue cash memos by itself was insufficient to reject the books of account, where the books were otherwise verifiable.
9. In the light of the aforesaid, the order of the Assessing Officer rejecting the books of account under section 145(3) of the Act and, consequently, making an addition of the income on estimate basis was reversed by the Tribunal. Further, such addition made on estimate basis is a question of fact as has been held in Commissioner (Customs) v. Stoneman Marble  2 SCL 758, Vijay Kumar Talwar v. CIT  330 ITR 1/196 Taxman 136/ 8 taxmann.com 264 (SC) ; New Plaza Restaurant v. ITO  309 ITR 259/183 Taxman 33 (HP) and Sanjay Oilcake Industries v. CIT  316 ITR 274 (Guj).
10. In view of the reasons stated aforesaid, we do not find any substantial question of law arising for our consideration in this appeal and is dismissed at the admission stage.
[Citation : 364 ITR 660]