- (1.) HEARD learned counsel for the parties.
(2.) THE following question of law has been framed by the appellant: (a) Whether the Hon'ble I.T.A.T. misdirected itself in law in accepting the book result by taking commission incomeat Rs.6,83,669/ -whenthebooksofaccountofthe assessee were found unverifiable by the Assessing Officer on examination of books particularly when the truck hiring expenses claimed of Rs.7,08,85,676/ -were not verifiable and receipts from Hindalco Limited and expenditure on account of truck hiring were not reflected in the P&L account of the assessee. (b) Whether the Hon'ble ITAT misdirected itself in law in not addressing the ground of appeal taken by the Department before it that the expenditure claimed on hiring of truck/ dumpers were not verifiable and ascertainable and, therefore, the Assessing Officer was correct in rejecting result shown by the assessee and then estimating his income at the rate of 5% of gross receipts. (c) Whether the Hon'ble ITAT misdirected itself in law while coming to the conclusion that the only dispute in case was with respect to the percentage of deduction. (d) Whether on the facts and circumstances of this case, the order of Hon'ble ITAT is perverse in as much as decision was arrived at in light of mis -appreciation of facts. At the request of the learned counsel for the parties, heard for final disposal.
(3.) LEARNED counsel for the appellant has submitted that the Assessing Officer in the assessment order dated 27.12.2007, for the Assessment Year 2004 -05 found that the assessee received gross receipt of Rs.7,16,09,345/ -from M/s Hindalco Industries Limited for transportation of Bauxite under written contract and that was found proved from the T.D.S. Certificate from which T.D.S. of Rs.36,800/ -has been deducted under Section 194(c). The Assessing Officer found that from perusal of the P&L A/c, it appears that the assessee has not shown gross receipt of Rs.7,15,69,345/ -and the assessee has credited Rs.6,83,669/ -under the heading "commission of transportation in the P&L Account . For the purpose of making fresh assessment, notice under Section 143(2), under Section 142(1) and thereafter some letters were issued to the assessee. The assessee submitted written submission on 12.12.2007 and the assessee's contention was that the assessee is a Commission Agent for transporting the goods and he got Rs.3/ -per metric ton as commission on total quantity's transportation. The said amount is also a gross commission in the income and has been duly shown in the P&L Account.;