1. By this petition under Section 256(2) of the Income-tax Act, 1961 (for short "the Act"), the Revenue seeks a direction to the Income-tax Appellate Tribunal (for short "the Tribunal"), Amritsar Bench, Amritsar, to state the case and refer the following questions for the opinion of this Court which, according to the Revenue, arise from the order of the Tribunal dated August 31,1992, deciding cross-appeals, I.T.A. No. 1425 of 1989 (by the Revenue), and I.T.A. No. 1332 of 1989 (by the assessee):
(i) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in confirming the first appellate authority's order deleting the addition of Rs. 1,48,93,286 made on account of bogus purchases?
(ii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in confirming the first appellate authority's order in deleting the addition of Rs. 35,47,867 made in the trading account by invoking the provisions of Section 145(2) of the Income-tax Act, 1961?
(iii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in allowing triple shift allowance on machinery ignoring the fact that the machinery did not work for triple shift?
2. Briefly stated, the material facts which pertain to the assessment year 1986-87 and have given rise to this petition, are as follows:
The assessee is a private limited company engaged in the business of manufacturing and sale of various types of valves, cocks and boiler fittings, etc. It filed its return on July 30, 1986, for the assessment year 1986-87 declaring an income of Rs. 10,35,980 followed by a revised statement submitted on May 14, 1987, declaring income of Rs. 10,12,160. A search and seizure operation under Section 132(1) of the Act was carried out at the business premises and the residential premises of the directors of the assessee-company on July 29, 1988. On examination of the books which were seized by the Department, the Assessing Officer suspected that the purchase of gun metal scraps valuing Rs. 1,48,93,286 from seven parties, accounted for in its account books by the assessee, was shown by it in collusion with those parties. The Assessing Officer accordingly asked the assessee vide its letter dated January 30, 1989, to prove the genuineness of the purchases from M/s. Kohinoor Enterprises and M/s. Swami Enterprises, first two of the seven parties referred to above. The assessee responded vide its letter dated February 8, 1989. The Assessing Officer, however, by invoking the provisions of Section 145 of the Act, assessed the income at Rs. 2,10,63,154 on the ground that there were bogus purchases to the tune of Rs. 1,48,93,287 and addition of Rs. 35,47,867 in the trading account, apart from some other inadmissible items of expenses.
3. Aggrieved, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) who accepted the assessee's case in part and held that its books of account were fully verifiable, therefore, Section 145 of the Act need not have been invoked. The Commissioner of Income-tax (Appeals) also held that the basis of treating the purchases from seven scrap dealers as bogus, was wrong as the consumption stood fully proved and the existence of the parties could not be denied. He also upheld the basis of valuation of closing stock of work-in-progress with which the Assessing Officer had found fault. Accordingly, the Commissioner of Income-tax (Appeals), vide his order dated July 17, 1989, deleted the additions of Rs. 1,48,93,286 and Rs. 35,47,867 made by the Assessing Officer on account of bogus purchases and addition in the trading account besides allowing "triple shift allowance" on machinery, etc., as also some other reliefs on other accounts.
4. The Revenue and the assessee, both, went in appeal before the Tribunal, which vide its self-speaking order dated August 31, 1992, dismissed the Revenue's appeal but partly allowed the assessee's appeal. The additions in relation to the expenditure incurred by the assessee on staff/labour welfare and on account of guest-house expenses, were vacated by the Tribunal.
5. Dissatisfied with the aforementioned order of the Tribunal, the Revenue moved an application under Section 256(1) of the Act before the Tribunal to state and refer the three questions of law, which, according to the Revenue, arise for consideration of this Court. The Revenue's application under Section 256(1) of the Act having been dismissed by the Tribunal, the present petition has been filed.
6. In relation to question No. (iii), reproduced above, Shri D.S. Patwalia, learned Counsel for the Revenue, has fairly conceded that the issue is no longer res integra and stands fully answered by the Supreme Court in South India Viscose Ltd. v. CIT , wherein, after holding that the circulars/instructions issued by the Central Board of Direct Taxes on the subject are in consonance with the construction of Section 32(1) of the Act, it has been held that (headnote),
"extra shift allowance has to be calculated on the basis of the number of days during which the concerned had actually worked double shift or triple shift and the said allowance is not required to be calculated on the basis of the number of days a particular item of machinery or plant had worked double shift or triple shift"
. Question No. (iii) thus, is not required to be answered by us.
7. As regards question No. (i) Shri Patwalia, learned Counsel for the Revenue, has vehemently argued that the findings of the Tribunal pertaining to deletion of the addition of Rs. 1,48,93,286 in the income of the assessee on account of bogus purchases, are totally perverse. We are, however, unable to persuade ourselves to agree with learned Counsel. We find from the Tribunal's order that the analysis and conclusions drawn by the Commissioner of Income-tax (Appeals) on the appreciation of material on record, have been concurred with the Tribunal after taking notice of the fact that the trading results of the assessee had all along been accepted and the purchases of scrap from the seven parties could also be not termed as bogus for the reason that in the subsequent assessment year, i.e., 1987-88, the purchases from these very parties stood accepted by the Department to a very substantial extent. The Tribunal, as a matter of fact, noticed that no sale invoices were found to be undervalued or the purchases inflated, yet the extraordinary profit in respect of goods sold to M/s. Mazagoan Dock Ltd., Bombay, and as recorded in the books of account which ought to have been taken favourably qua the assessee, was considered "adverse" by the Assessing Officer by adopting an erroneous approach. The Tribunal also affirmed the conclusion drawn by the Commissioner of Income-tax (Appeals) that M/s. Kohinoor Enterprises and M/s. Swami Enterprises are existing parties doing business of scrap metal and had vast financial resources at their disposal. Similar conclusion was drawn by it in respect of M/s. S.P. Metal Works and M/s. A.S. Metal Company also. The assessee's contention that out of total purchases of non-ferrous metal of Rs. 2.44 crores, the Assessing Officer had treated purchases worth Rs. 1.49 crores only as bogus and it was impossible to manufacture the goods shown to have been manufactured by it out of the remaining purchases if the Assessing Officer's conclusion is accepted, also found favour with the Tribunal. This in our view, is simply a finding of fact based upon appreciation of the material on record and, thus, hardly gives rise to any question of law.
8. So far as question No. (ii) is concerned, the Tribunal took notice of the fact that the assessee's method of accounting stood approved by the Income-tax Appellate Tribunal, Delhi Bench, in its case for the assessment years 1981-82 and 1982-83 and the orders passed therein had already attained finality. The Tribunal also took notice of the Revenue's contradictory stand inasmuch as firstly specific additions were made in the assessment on account of alleged bogus purchases and then the assessee's books were rejected on the ground that these were not verifiable but the adjustment of bogus purchases was made while working out "gross profits" and that too on the basis of "sales version" in those very books though with a slight modification. Learned Counsel for the assessee has further pointed out, and which fact is not controverted by learned Counsel for the Revenue, that from the assessment year 1993-94, onwards also, the same method of accounting followed by the assessee, has been accepted by the Department.
9. The brief capitulation of the findings of fact returned by the Tribunal, referred to above, leads to an irresistible conclusion that these are pure findings of fact giving rise to no question of law.
10. The petition is accordingly, dismissed.