Income Tax Appellate Tribunal - MumbaiNitco Tiles Ltd, Mumbai vs Department Of Income Tax on 14 December, 2009IN THE INCOME TAX APPELLATE TRIBUNAL
                    MUMBAI BENCH 'B' : MUMBAI

     BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH,(AM)



                         ITA No.1599/Mum/2010
                         Assessment Year : 2006-07


Asstt. Commissioner of Income tax
Central Circle-46
Room No.658, 6th Floor
Aayakar Bhavan, M.K. Road
Mumbai-20.                                           .....(Appellant)

Vs.

M/s. Nitco Tiles Ltd.
85-86, Maker Chambers III
Nariman Point
Mumbai-21.                                       .....(Respondent)
P.A. No.(AAACN 1674 N)



                  Appellant by : Shri Hari Govind Singh
                Respondent by : None


                               ORDERPer D.K. AGARWAL (JM).This appeal preferred by the revenue is directed against the
order dated 14.12.2009 passed by the ld. CIT(A) for the Assessment
Year 2006-07.2.     Briefly stated facts of the case are that the assessee company is
engaged in manufacturing and sale of different kinds of tiles, filed
return declaring total loss of Rs.1,06,93,546/-. It has also worked out
book profit at Rs.23,29,96,594/- as per special provisions of sec.115JB2                            ITA No.1599/M/10A.Y:06-07


of the Income tax Act, 1961(The Act).             During the course of
assessment proceeding the Assessing Officer observed that there is a
big difference between the sale price of various kinds of marbles. On
further examination the Assessing Officer observed that the assessee
company has sold about 80% of its marbles as an institutional sales @
Rs.217.72 per sq.ft., therefore, there is no reason why such rate could
not be realised from sales to others and in particulars from its own
related parties i.e. Maharashtra Marble Company whose proprietor is
Director of the Company. It cannot be inferred that only institutional
buyers have opted for exclusive quality of the marble having greater
realisation rate. Also, the rate of Rs.217.72 per sq.ft. is average rate.
This means that some quantity has fetched value more than this rate.
Under these circumstances the Assessing Officer after considering the
assessee's explanation in this regard, therefore, rejected the book
results of the assessee and applied average sale value of Rs.217.72
per sq.ft. to the entire sale of marble and thereby worked out the total
amount of sales Rs.6,24,36,531/- (Rs.217.72 x 286774.44 sq.ft.) as
against   Rs.5,27,02,304/-    and    hence   he   added     the   difference
Rs.97,34,227/- to the income of the assessee as suppressed sales.
The   Assessing   Officer   after   making   some   other    disallowances
completed the assessment under normal provisions Rs.9,61,680/- and
u/s.115JB Rs.23,29,96,594/-, vide order dated 23.12.2008 passed
under section 143(3) of the Act.3.    On appeal, the ld. CIT(A) following the Tribunal order in the
assessee's own case for the Assessment Years 2001-02 and 2002-03
and order of his predecessor for the Assessment Year 2005-06 and
keeping in view the rule of consistency deleted the addition made by
the Assessing Officer.3                           ITA No.1599/M/10A.Y:06-074.    Being aggrieved by the order of the ld. CIT(A) the revenue is in
appeal before us taking following grounds of appeal:-"1. On the facts and in the circumstances of the case and
                  in law, the ld. CIT(A) erred in allowing the relief in full
                  relating to the addition of Rs.97,34,227/- made on
                  account of the suppressed sales in the assessment order
                  by applying the provisions ofsection 145of the I.T. Act,
                  1961.2. On the facts and in the circumstances of the case and
                  in law, the ld. CIT(A) erred in ignoring the fact that the
                  decision of the Hon'ble ITAT for Assessment Year 2001-02
                  and for Assessment Year 2002-03 in assessee's own case
                  was not accepted by the department and appeal filedu/s.
                  260Aof the Act is pending before the Hon'ble Mumbai
                  High Court."5.    At the time of hearing the ld. DR while relying on the order of
the Assessing Officer submits that there is no dispute that the Tribunal
in the earlier years has decided the similar issue in favour of the
assessee, therefore, the issue may be decided accordingly.6.    Having carefully heard the submissions of the ld. DR and
perusing the material available on record we find that the ld. CIT(A)
while deleting the addition of suppressed sales of Rs.97,34,227/- has
followed the order of the Tribunal in assessee's own case for the
Assessment Years 2001-02 and 2002-03. In the absence of any
contrary material or distinguishing feature placed on record by the
revenue to show that the said order of the Tribunal has been reversed
by the Hon'ble Jurisdictional High Court or not applicable, we
respectfully following the order of the Tribunal supra, in the assessee's
own case, decline to interfere with the order passed by the ld. CIT(A)4                         ITA No.1599/M/10A.Y:06-07


on this account and accordingly the grounds taken by the revenue are
rejected.7.    In the result, revenue's appeal stands dismissed.Order pronounced in the open court on 15.12.2010.Sd/-                                         Sd/-
(RAJENDRA SINGH)                            ( D.K. AGARWAL )
ACCOUNTANT MEMBER                            JUDICIAL MEMBER

Mumbai, Dated: 15.12.2010.
Jv.

Copy to: The Appellant
         The Respondent
         The CIT, Concerned, Mumbai
         The CIT(A) Concerned, Mumbai
         The DR " " Bench

True Copy
                                             By Order

                             Dy/Asstt. Registrar, ITAT, Mumbai.