JUDGMENT Rajes Kumar and S.S. Chauhan, JJ.
1. These three appeals under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as the "Act") are directed against the order of the Tribunal dated 28th of November, 2003 for the assessment years 1992-93, 1990-91 and 1991-92 respectively.
2. The appeals have been admitted on the following questions:
(1) Whether, on the facts and circumstances of the case, the Tribunal was legally justified in holding that the discount of Rs. 6,67,458/- was actually given to the customers, when some of the supporting vouchers, which were test checked, were found to be forged.
(2) Whether, on the facts and circumstances of the case, the Income Tax Appellate Tribunal was legally justified in not discussing the evidence of the Government Registered Forensic Expert, who had certified that some of the vouchers were forged and ignoring the law laid down on the admissibility of evidence by the apex court in the case of Nawab Ganj Sugar Mills Company Ltd. v. CIT .
(3) Whether, on the facts and circumstances of the case, the Tribunal was legally justified in accepting the contention of the assessee firm and admitting additional evidence, especially when in the appellate proceedings the assessee failed to appear before CIT (APPEALS), despite several opportunities, and whether the above action of the Hon'ble Income Tax Appellate Tribunal was not in violation of Rule 29 of the Income-tax (Appellate Tribunal) Amendment Rules, 1973.
(4) Whether the Income Tax Appellate Tribunal erred in law by allowing the assessee to project a new case even when these contentions had not been raised before the lower Authorities and whether the above action of the Hon'ble Income Tax Appellate Tribunal was justified in light of the observations of the Apex Court in the case of Reckitt and Colman of India Ltd. v. CCE [1977] 10 SCC 379.
(5) Whether, considering the facts and circumstances of the case, the Tribunal erred in law by upholding the admissibility of expenses on the ground that the same were allowed in earlier years which is contrary to the law laid down by the apex court in the case of CIT v. British Paints that if accounting system does not disclose true and proper income the assessing officer is entitled and has duty to adopt appropriate computation to determine true income.
3. The brief facts of the case are that the respondent-dealer was carrying on the business of tractors, motorcycle and their spare parts. It has given discount to its customer. Such discount has been disallowed by the Assessing Authority on the ground of certain discrepancies being found in some of the vouchers. Being aggrieved by the order, the assessee filed the appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) upheld the disallowance of such discount. Being aggrieved by the order, the assessee filed the second appeal before the Tribunal. The Tribunal by the impugned order allowed the appeal and deleted the addition towards disallowance of such discount. The Tribunal held as follows:
We have considered the rival submissions. Regarding the first issue of disallowance out of expenses incurred on discount, the fact remains that the turnover of the assessee increased from Rs. 1,45,39,946/- in assessment year 1989-90 to Rs. 2,35,06,501/- and similarly, the turnover has further increased in assessment year 1991-92 and 1992-93 and in that proportion the claim of discount cannot be said to unreasonable and even if there is some increase in the amount of discount, it is everybody's common knowledge that the competition on account of introduction of number of companies selling tractors of various makes increased, therefore, the disallowance of payment of discount without appreciating the facts and circumstances obtainable in the nature of assessee's business cannot be upheld as such, particularly when the assessee filed complete list of persons to whom discounts were given even the Assessing Officer gave full details including the date of payment, name and address of the customer, Bill No. , cost of tractor, amount of discount paid and other details and the Assessing Officer, without making proper enquiries, made the disallowance and the same has been confirmed by the ld. CIT(A), for which there is no basis. There is also force in the contention raised on behalf of the appellant-assessee that in the assessment year 1993-94 on reduced sales, payment of discount at Rs. 2,14,535/- has been allowed by the Assessing Officer in the assessments made Under Section 143(3). Similarly, the discounts were allowed in the past as per the information enclosed at page 1 of the paper book. Merely because in some cases, the recipients of commission were not those persons who purchased the tractors or there was a change in signature on account of language and the appellant-assessee gave good account of nine instances taken into account by the Assessing Officer out of 174 vouchers and on account of the same, almost entire discount could not be disallowed. Even the nine instances had properly been explained as to why there was discrepancy, therefore, the ld. CIT(A), without considering properly the submissions of the appellant-assessee (dated 29.4.94) made before him, has wrongly confirmed the amount of disallowance. Even if the amount of seven instances is taken into consideration, the amount is not even Rs. 30,000/- even in view of the explanation, the same stands substantially explained, therefore, we have no hesitation in directing the Assessing Officer to delete the entire amount of discount as the Assessing Officer, under the similar circumstances, while passing orders Under Section 143(3) for the assessment year 1987-88 and 1993-94 has not made any such disallowances.
4. Heard Shri D.D. Chopra, learned Senior Standing Counsel for the Revenue. Despite the case being called twice, no one appears on behalf of the assessee.
5. At the very outset, the learned Senior Standing Counsel submitted that he is not pressing the question No. 3. He further submitted that the assessee has set up a new case and the Tribunal on a consideration of such new submissions, which have not been raised before the Assessing Officer, has deleted the addition.
6. We do not filed any substance in the submission of the learned Senior Standing Counsel. The question involved was the claim of discount for the sale of tractors. For the claim of such discount the full details, including the date of payment, name and address of the customer, Bill No. , cost of tractor, amount of discount paid and other details, have been furnished before the Assessing Authority. The vouchers were also produced for verification. In some of the cases, some discrepancy was, of course, pointed out but it appears that no case has been made out that the discount has actually not been paid by the assessee. The Tribunal on a consideration of the entire facts and circumstances allowed the discount. The Tribunal further held that the similar discount has been allowed in the assessment years 1987-88 and 1993-94. In our view, the findings of the Tribunal are findings of fact based on the appreciation of the evidence on record. The learned Counsel for the appellant is not able to show that the findings are perverse and based on no material. He is also not able to show that what new case has been set up by the assessee before the Tribunal.
7. In view of the above, there is no merit in all the three appeals. The appeals fail and are dismissed.