High Court Of Madhya Pradesh : Indore Bench
CIT vs. Ashok Kumar & Party
Section 260A
Asst. Year 1994-95
A.M. Sapre & Ashok Kumar Tiwari, JJ.
IT Appeal No. 63 of 2000
3rd January, 2005
Counsel Appeared :
R.L. Jain Assessee : with Ku. V. Mandlik, for the Revenue
ORDER
A.M. Sapre, J. :
This is an appeal filed by the Revenue (CIT) under s. 260A of the IT Act against an order, dt. 3rd July, 2000, passed by the Income-tax Appellate Tribunal (for short hereinafter referred to as Tribunal) in ITA No. 340/Ind/1999. This appeal was admitted for final hearing by passing following order on 4th Dec., 2000: “4th Dec., 2000— Shri R.L. Jain, learned counsel for the Revenue. Admit. Notice. (Bhawani Singh, C.J.) (Shambhoo Singh, J.) Heard Shri R.L. Jain, learned senior counsel with Ku. V. Mandlik, learned counsel for the Revenue. None for the assessee. Under s. 260A of the Act, the appeal can be admitted for final hearing only when it involves any substantial question of law. Sub-s. (3) then obliges the High Court to formulate substantial question of law which in the opinion of High Court is involved. Sub-s. (4) then empowers the High Court to hear and decide the appeal only on the question so formulated. Proviso to sub-s. (4) enables the High Court to decide the appeal on reasons to be recorded on that question not initially framed, provided High Court is satisfied that such question does arise and/or involve in the case. Let us see what are the facts of this case and whether appeal involves any substantial question of law within the meaning of s. 260A of the Act so as to enable this Court to formulate the question for being answered.
The assessee derives income from liquor contract (both country as also IMFL). In the course of assessment proceedings under s. 143(3) of the Act for the asst. yr. 1994-95, dispute arose in regard to certain entries. One was in relation to sealing charges for Rs. 5,47,516. This was debited in trading account. In the opinion of taxing authorities, an amount of Rs. 3,06,168 was debited in excess. In other words, the assessee should have debited a sum of Rs. 2,41,348 in place of Rs. 5,47,516. Then came dispute regarding purchase of country liquor at Rs. 2,59,636. According to authorities, it should have been at Rs. 1,94,727. Then came one entry relating to purchase price of country liquor. According to assessee, it was mentioned at Rs. 17,79,761 in P&L a/c whereas according to authorities, it should have been at Rs. 10,87,799. Then came entry regarding shortage of one M.G. for Rs. 41,84,501. The AO made the assessment. However aforementioned infirmities were noticed by the CIT in the order of assessment passed by AO. It is for this reason, the CIT took shelter of s. 263 powers and finding these defects/ infirmities to be prejudicial to the interest of Revenue, issued notice to the assessee and called upon to show as to why the order of assessment to the extent mentioned supra i.e., in relation to aforesaid entries be not set aside. The assessee filed reply and explained as to why the entries referred be upheld. The CIT did not accept the explanation of assessee and passed the order. It is this order the assessee challenged in appeal before the Tribunal.
By impugned order, the Tribunal allowed the appeal in part and deleted some of the issues in favour of assessee. This appeal is filed by the Revenue against that part of the order by which certain entries have been upheld by the Tribunal in favour of assessee by setting aside of order passed by CIT and restoring that of the AO. So far as some entries which were not interfered with are concerned, the assessee has not chosen to file the appeal. They have, thus, become final. This is how this appeal has come to this Court.
We have heard the learned counsel for the parties at length. Having heard them, we are unable to notice any substantial question of law as contemplated under s. 260A ibid. This fact we can examine at this stage at the instance of respondent by virtue of s. 260A(4). Since none of the questions sought to be raised by the Revenue satisfies the rigour of s. 260A and hence, the appeal is liable to be dismissed. In fact, the appeal does not involve any interpretation of section, rule or circular. It also does not involve any interpretation of judicial decisions. The question, whether explanation offered by assessee in relation to particular credit or debit entry in P&L a/c is acceptable or not is a question of fact. If it was not accepted by CIT in s. 263 proceedings, initiated against the assessee, the same found acceptance to Tribunal in part. This Court in further appeal cannot go into the same with a view to find out whether reasoning assigned by Tribunal in accepting the explanation is right or not. The Tribunal had the jurisdiction to accept and they did so. It is only when the appellant is able to point out extreme perversity in the factual finding such as it being totally de hors the provisions of Act, or any law, or explanation offered, a substantial question of law emerges out of such finding. Such does not appear to be the case. We have gone through the impugned order of Tribunal. We find that Tribunal examined the explanation of assessee in respect of each entry and gave their own reasoning. Out of four, two were accepted and remaining were not. In sum and substance, since no substantial question of law was noticed in the impugned order i.e., in this appeal and hence, it is dismissed. No costs.
[Citation : 299 ITR 35]
