JUDGMENT M. Katju, J.
1. This is an income-tax appeal filed under Section 260A of the Income-tax Act, 1961, relevant to the assessment year 1988-89 by which the impugned order of the Income-tax Appellate Tribunal dated June 18, 2001, has been challenged.
2. Heard learned counsel for the parties.
3. The appellant is a limited liability company carrying on the business of manufacturing and sale of steel and ingots. In the process of manufacturing the petitioner makes purchases of iron scrap. It is alleged in the statement of facts in the memorandum of appeal that the accounts of the assessee were regularly audited, and the account books have never been rejected by the Income-tax Department ever since 1971. For the relevant assessment year 1988-89, the assessee filed a return showing income of Rs. 12,37,860. This was revised on May 30, 1989, on account of change in depreciation charges. The income-tax authorities made a search in the premises of the appellant on February 27, 1987, under Section 132 of the Income-tax Act. In this search certain records were seized. The Assistant Commissioner (Assessment) completed the assessment at an income of Rs. 98,51,050. The Assessing Officer has made an addition of Rs. 72,82,610 by applying the proviso to Section 145(1) of the Income-tax Act as was done in the past five years, although addition made in the previous years were deleted by the Tribunal in all the years except assessment year 1987-88. The account books of the assessee were disbelieved on the basis of the past prevalent practice although in the earlier years the accounts were accepted by the Commissioner of Income-tax (Appeals) and it is alleged that the same procedure has to be followed this year also. It is alleged that the appellant's product is an excisable commodity on which the Excise Department under the Central Excise Act keeps complete check and supervision and no discrepancy was ever found by the excise authorities.
4. The Assessing Officer added a sum of Rs. 4,44,605 on account of dust elimination, and held that the amount of dust is transacted outside the books. However, it is alleged that no instance of any dust having been transacted outside the books has ever been found in spite of extensive search and seizure operation and detailed examination of the seized record. The assessee has stated before the assessing authorities that the company has not paid any amount for the dust deducted from the supply of scrap made to the appellant and no amount has been debited to the profit and loss account. Both the appellate authorities confirmed the view of the assessing authority. Aggrieved this appeal has been filed.
5. In our opinion, the addition made by the Tribunal is wholly arbitrary. In this connection it may be mentioned that the scrap which the petitioner purchases for use in the manufacture of steel contains some dust and the petitioner has to eliminate this dust before the said scrap is used for the manufacture. The petitioner does not pay the price for this dust to the seller of the scrap. In our opinion there is no material on record to sustain the addition in question. The addition of Rs. 4,44,605 is an estimated price of the eliminated dust which has been arbitrarily added by the income-tax authorities though no price for this dust was admittedly paid, no expenditure was incurred nor the title in the goods in the form of dust eliminated pass to the assessee.
6. In Godhra Electricity Co. Ltd. v. CIT [1997] 225 ITR 746, the Supreme Court observed (page 756) :
"Under the Act income chargeable to tax is the income that is received or is deemed to be received in India in the previous year relevant to the year for which assessment is made or the income that accrues or arises or is deemed to accrue or arise in India during such year. The computation of such income is to be made in accordance with the method of accounting regularly employed by the assessee."
7. In the same decision, the Supreme Court also observed (page 757) :
"Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz., the accrual of the income or its receipt ; but the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping an entry is made about a hypothetical income, which does not materialise."
8. From the facts stated above it is clear that no income was received by or accrued to the assessee and hence the addition in the process of the estimated price of the dust eliminated at the time of purchase is wholly arbitrary and illegal.
9. The appeal is allowed. The question of law raised by the assessee is decided in his favour by deleting the addition of Rs. 4,44,605 on account of dust elimination.