2002 PLP (Trib (PTD)

opening balance under section 13(1)(aa).????????????????????? Rs. 50,000 Addition on account of excess claim of expenses in P & L Account.????????????????????????????????????????? Rs. 5,300 1/3rd out-of traveling??? ?????????????????????? Rs. 8,333 1/3rd out of Miscellaneous, ????????????????? Rs. 8,433 Rs. 16.766 Total income???????????????????????????????????????????????????????????????? Rs. 4,35,536

6. The learned A.A.C. cancelled the assessment order whereby restored the original order framed under section 59(i) observing hereunder:

"Having given due consideration to facts, of the case, arguments advanced and law quoted by the learned counsel, I am inclined to agree with the contention that no new information was available with the Assessing Officer at the time of reopening the assessment to process under section,

65. Also the explanation offered by the appellant with regard to the discrepancies pointed out by the Assessing Officer appears to be reasonable. The action under section 65 having been prompted by a charge of opinion, is not tenable legally the light of various decisions of the higher Appellate Authorities quoted supra by A.R. of the appellant."

7. The learned A.A.C., however, on an application under section 156 rectified the order for the reason that in the last para of page 2 of the Order in review, it has been mentioned that the A.R. has filed written arguments in this context but the same have not been reproduced accordingly.

8. It is worth mentioning that the appellate order passed by the learned ACIT(A), dated 20-2-1999 has been vacated by the I.T.A.T. with the following findings/directions:

"We find, on the facts and circumstances supra, that the learned A.A.C. is not justified in holding that no new information is available to the D.C.I.T. warranting action under section 65 of the Ordinance. We have no doubt in our mind that the information about discount supra is received by the D.C.I.T., after the original assessment and it is definite information. . Accordingly, we vacate the impugned order of the learned A.A.C. and remand the appeal to whom for deciding it on other grounds taken by the assessee."

9. The learned A.A.C. took up the matter again for disposal in the light of the Tribunal's order and passed the order, dated 14-10-2000. The learned A.A.C. observed that the Assessing Officer rightly rejected the trading version and further observed hereunder:

"However, considering that .the nature of trade involves allowance of discount as a matter of routine it would be appropriate to complete the assessment by way of estimating the sales at Rs. 13,000,000 and applying G.P. rate of 4 % thereon which is directed."

10. We have heard the learned representatives of the two parties and have gone through the record. So far as Ground No. 1 is concerned, we find that the argument that the order of the learned A.A.C. is bad in law is no more available to the assessee as the matter has been before the I.T.A.T. and the order, dated 20-9-1999 was vacated by the I.T.A.T. with the observation "that the learned A.A.C. is not justified in holding that no new information is available to the D.C.I.T. warranting action under section 65 of the Income Tax Ordinance. We have no doubt in our mind that the information about discount is received by the D.C.I.T., after the original assessment and it is definite information".

11. In the circumstances supra, legality, of the order cannot be challenged as the order has been passed under the specific directions of the I.T.A.T. and no reference or appeal has been preferred against the order of the I.T.A.Ts.

12. So far as Grounds Nos. 2 and 3 are concerned, we find that sufficient relief has already been allowed in respect of discount as the learned A.A.C. has lastly observed in his order that "however, considering that the nature of trade involves allowance of discount as the matter of routine, it would be appropriate to complete the assessment by way of estimating the sales at Rs. 13,000,000 and applying G.P. rate of 4% thereon". The learned counsel for the appellant while not much disputing the sales estimate still feels aggrieved with the G.P. rate which according to him is still excessive, against the declared G.P. rate of 2.38%. As no specific instance has been given by the officers below in support of the G.P. rate of 4% we consider it proper to reduce the same to 3.5% while maintaining the sales estimate of Rs. 1,30,00,

000. The order of the learned A.A.C. will stand modified accordingly.

13. The next argument that the original order passed under section 132 has been rectified under section 156 and the D.C.I.T. did not file appeal against the same has no reason, because the original order under section 132 has been vacated by the I.T.A.T. and the matter was remanded to the learned A.A.C. to decide the matter on the grounds taken by the assessee.

14. The appeal is disposed of to the extent and in the manner indicated above. C.M.A./M.A.K./127/Tax(Trib.)?????????????????????????????????????????????????????????? Order accordingly.