- (1.) THE assessee, and deleting the addition made by the AO, and confirmed in appeal, so also treating Form No. 12 to have assessee.
(2.) THE appeal was admitted by framing following three substantial questions of law : "1. Whether in the facts and circumstances, the Tribunal was justified in deleting the addition and setting aside the order of AO as confirmed by CIT(A) without assigning any reasons for taking a different view than what has been taken by authorities below ? 2. Whether there was any material before the Tribunal to reverse the findings reached by the lower authorities about the state of affairs of the books of accounts produced by (sic. -before) the AO and consequently resorting to best judgment assessment ? 3. Whether in the facts and circumstances of the case, the Tribunal was justified in law in allowing registration of the firm under s. 184(7) of the Act of 1961 without there being any application having been moved when according to the admitted case of the assessee the earlier counsel has failed to produce the application of the registration of the firm -
(3.) SO far as first two questions are concerned, order of the Tribunal shows, that all the Tribunal has done, is to quote the observations of the learned CIT(A), made in para 3.1, then has reproduced the submissions, made on behalf of the assessee, and then has straightway, held as under : "I am convinced that the assessee had maintained proper books which were only audited and the assessee had traded CIT(A) and delete this addition." It is required to be grasped, that the learned Tribunal under the scheme of things, is a final Court of fact as appeal under s. 260A, lies only on substantial questions of law, with the consequence that, learned Tribunal is required to go into all factual aspects of the matter, appreciate them and then record its own findings. So far as finding recorded by the Tribunal, as quoted above, is concerned, on the face of it, some of the findings of the AO, and the learned CIT(A), of course, did not appear to be sustainable, but at the same time, the finding albeit the cryptic finding, recorded by the Tribunal, is also not sustainable. A look at the order of the AO shows, that it has positively been recorded, that according to the assessee, the books of account were misplaced somewhere by his erstwhile advocate late Shri Basanti Lal Jain, and are not traceable, therefore, the same had not been filed, and had simply filed audited account, which has not been accepted. Thus, the finding of the learned Tribunal about assessee having maintained proper books, which were duly audited, is, on the face of it, unsustainable, being dead against the assessee's own case, as it is writ at large on record, that the Cotton Corporation of India has certified to have purchased the cotton from the assessee to the tune of Rs. 1,44,12,908, while the assessee has disclosed the sale to the tune of Rs. 1.24 crore. In absence of books of accounts and in absence of any discussion of material, to be available with the Tribunal, to believe, the appellant to have undertaken sale worth Rs. 1.24 crore only, the finding, on the face of it, is bad. Likewise, so far as finding of the learned CIT(A) and AO is concerned, may be that books of accounts were not produced, but then to allow deduction of expenses in paltry amount of Rs. 40,000 only, on the face of it is absurd. As appears from the submissions, recorded by the learned Tribunal, that the assessee has satisfied (sic - -specified) the names of transporter, purchaser, data bilty and lorry number, weight and amount of freight. Likewise, other external evidence as was available to support the expenditure was also produced, which has not been considered by the learned authorities below and the Tribunal as well. Then it is required to be comprehended, that a person transacting business worth more than Rs. 1.44 crore, could not be able to manage the business by incurring the paltry expenses of Rs. 40,000 under the different heads.;