BHASKAR BHATTACHARYA,J. - (1.) .This appeal under S. 260A of the IT Act, 1961 is at the instance of the assessee and is directed against an order dt. 1st Dec., 2000, passed by the Tribunal, "E" Bench, Calcutta, in income-tax appeal bearing ITA No. 1414/Cal/1996 for the asst. yr. 1992-93 partly modifying the order passed by the CIT(A) in an appeal filed by the Revenue. Being dissatisfied, the assessee has come up with the present appeal.
(2.) THE facts giving rise to filing of this appeal may be summed up thus : (a) The assessee is engaged in the manufacturing of goods and has factory in South 24-Parganas and a plastic unit situated in Noida (UP). During the assessment year under consideration, the assessee claimed certain expenses which were restricted by the AO who disallowed a part of the expenses on estimate basis which were deleted by the CIT(A) on an appeal being preferred by the assessee. (b) Being dissatisfied, the Revenue preferred an appeal before the Tribunal and the Revenue had the following threefold grievances before the said Tribunal : (i) The first grievance of the Revenue was as regards the amount of Rs. 4,40,865 on account of welfare expenses. According to the Revenue, the assessee had claimed a sum of Rs. 13,25,718 under this head, it appeared that the sale had gone down to a large extent but the assessee-company had debited Rs. 13.25 lakh under the said head. The defence of the assessee, however, was that there was lockout which was followed by labour agitation and so, the production had gone down but the expenditure under the head 'Medical and welfare' remained unrelenting. The Tribunal below came to the conclusion that the AO made addition by taking wrong figure but the fact remained that CIT(A) also had blankly deleted the addition without considering the factual situation and thus, the Tribunal was of the view that the order of the first appellate authority should be modified and the disallowance should be restricted to to Rs. 3,00,000 without, however, giving any reason for arriving at such a figure. (ii) The second grievance of the Department was pertaining to addition of Rs. 56,72,600 on account of power and fuel expenses. The Tribunal came to the conclusion that the sale during relevant period had gone down in comparison to the figure of the previous year but the assessee claimed a sum of Rs. 2,64,95,591 under the head of 'Power and fuel expenses'. According to the Tribunal, the AO considered that the fuel rate was increased, so he had allowed a higher rate at 6 per cent in the tariff rate but no material evidence regarding the claim was made available before him. So, the AO disallowed Rs. 65.72 lakh on estimate basis which was deleted by the CIT(A). The Tribunal below, thus, considering the "totality of the facts and circumstances" modified both the orders and restricted disallowance to Rs. 20,00,000. (iii) The last grievance of the Revenue was as regards the addition of Rs. 37,84,956 on account of laminating expenses. The assessee claimed a sum of Rs. 1,45,75,403 in the previous year under this head. The CIT(A) deleted the amount by observing that the cost of import had increased by 11 per cent compared to the last year which resulted increase in expenditure. The Tribunal below, however, without assigning any reason modified both the orders and restricted the disallowance to Rs. 10 lakh. Being dissatisfied, the assessee has come up with the present appeal. A Division Bench of this Court at the time of admission of this appeal formulated the following substantial questions of law : "(i) Whether, the Tribunal was justified in law in sustaining the disallowances in respect of staff medical and welfare expenses of Rs. 3,00,000, power and fuel expenses of Rs. 20,00,000 and laminating expenses of Rs. 10,00,000 and its purported findings in this behalf are based on any material and/or have been arrived at by ignoring the relevant materials and/or by taking into consideration irrelevant and/or extraneous materials and/or are otherwise arbitrary, unreasonable and perverse ? (ii) Whether, any of the said expenses were disallowable in the absence of any finding that the expenditure was not incurred for the purposes of the appellant's business and having regard to the settled legal position that the AO cannot substitute his own views in place of those of the businessman who is the best judge of commercial expediency ?"
(3.) AFTER hearing Mr. Bajoria, the learned senior advocate appearing on behalf of the appellant and Mr. Shome, the learned senior advocate appearing on behalf of the Revenue, we find that the assessee in support of his claim produced details of vouchers and other documents in support of the claim in respect of those three items. It appears that the AO did not at all consider those documents nor did he find those documents to be manufactured or otherwise not relevant and on the basis of a mere guesswork, deducted the amount. Similarly, the CIT(A) after finding that the approach of the AO was erroneous, allowed the entire claim of the assessee without verifying those documents and the Tribunal below took a midway by modifying both the orders without, however, any reference to any of the materials produced by the assessee.;