COMMON JUDGMENT

(Judgment of the Court was delivered by R.MAHADEVAN, J.)

These tax case appeals have been filed by the appellant / Revenue, challenging the order dated 08.09.2011 passed by the Income Tax Appellate Tribunal, Bench 'A', Chennai, in I.TA.Nos.1149 & 1150/Mds/2011, relating to the assessment years 2005-06 and 2008-09.

2.By order dated 21.04.2014, this court admitted the present appeals on the following substantial question of law:

“Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the burden of proving excess stock is on the revenue when the assessee himself has admitted the availability of excess stock and thereby deleting the addition of investment in unexplained stock."

3.The brief facts of the case are that the assessee is a dealer in sanitary wares. For the sake of higher loan limit, they were in the habit of furnishing inflated stock. On 09.01.2001, a search under section 132 of the Income-tax Act, 1961 was conducted in the business premises of the assessee and physical inventory of stock was taken. During the course of which, no unaccounted excess stock was found. However, the assessing officer added the difference between the real declared book stock and inflated stock furnished to the bank and also reopened the earlier and subsequent assessments. Ultimately, the assessing officer completed the assessment by making additions as unexplained investment in stock. Challenging the same, the assessing officer preferred appeals before the CIT(A), who by order dated 02.03.2011, allowed the appeals. Aggrieved by the same, the Revenue preferred appeals before the Tribunal, which dismissed the same, following the earlier order in respect of the assessee's own case in ITA No.2013/Mds/2005 for the assessment year 2001-02, relating to addition on the difference between stock as per books and stock furnished to the bank.

Therefore, the present appeals by the Revenue.

4.The learned counsel for the appellant/Revenue fairly submitted that the issue involved herein is covered against the Revenue in view of the judgment dated 25.02.2015 passed by this court in T.C.A.No.1526 of 2007 in respect of the assessee's own case (ITA No.2013/Mds/2005 for the assessment year 2001-02). The relevant passage of the said judgment can profitably be extracted below:

"8. The primary reason for the Department to file the present appeal stems from the earlier order of the Tribunal in respect of the assessee's own case for the earlier year, wherein the Tribunal had remanded the case back to the Assessing Officer. However, in the present case, the appeal has been allowed and, therefore, no uniformity has been maintained.

9. Though the above plea has been made by the Department, this Court is not inclined to entertain this appeal on the question of law raised at this point of time in view of the subsequent decision of this Court, which is also on the same issue, rendered in the case of Commissioner of Income Tax – Vs – Smt. Sakuntala Devi Khetan (2013 (352) ITR 484 (Mad)), wherein it has been clearly held that the Assessing Officer has to adopt the figures and turnover finally assessed by the sales tax authorities. Similar issue was also considered in the case of CIT – Vs - Anandha Metal Corporation (2005 273 ITR 262 (Mad)), and held in favour of the assessee, which decision has been followed by the Tribunal in assessee's own case for the earlier year, wherein the matter was remanded back. In view of the consistent view of this Court as could be found from the above decisions, this Court is of the considered view that the contention of the Department has to fail. Accordingly, the substantial question of law is answered in favour of the assessee and against the Revenue.

10. In the result, the appeal fails and the same is dismissed. However, in the circumstances of the case, there shall be no order as to costs."

5.The learned counsel for the appellant / Revenue further submitted that the aforesaid judgment was foll