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Income Tax Appellate Tribunal, AHMEDABAD “A” BENCH
Before: Shri Rajpal Yadav & Shri Amarjit Singh
आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
These two appeals filed by revenue and assessee for A.Y. 2012-13, arise from order of the CIT(A)-2, Ahmedabad dated 10-06-2015, in proceedings under section 143(3) of the Income Tax Act, 1961; in short “the Act”.
The solitary ground of appeal of the revenue is against the decision of ld. CIT(A) in deleting the addition of Rs. 65,77,253/- made on account of GP addition.
The fact in brief is that assessee has filed return of income declaring income of Rs. 28,80,420/- on 30th Sep, 2012. Subsequently, the case was selected under scrutiny by issuing of notice u/s. 143(2) of the act on 8th August, 2013. During the course of assessment, the assessing officer noticed that there was decline in gross profit margin from 32.68% to 24.26%. The assessing officer has observed that in the financial year pertaining to assessment year under consideration the gross profit had increased from Rs. 438.69 lacs to Rs. 469.29 lacs, however, the margin had not been increased at the same rate as the turn over. The assessee was asked to explain the decrease in gross profit margin. The assessee has explained various reasons for failing in gross profit vide its reply dated 27th Jan, 2015. The assessee has explained with relevant detail that there was increase in the employee’s cost, selling and distribution cost and cost of various raw materials used in the manufacturing of various kinds of sweets. It was also
I.T.A Nos. 2627/Ahd/2015 & 375/Ahd/2016 A.Y. 2012-13 Page No 3 ITO vs. M/s. Gwalia Sweets Pvt. Ltd.
explained that assessee has also provided more trade discount in comparison to the preceding year and there was also more sale of bakery items compared to the preceding years etc. The assessing officer has not agreed with the submission of the assessee and stated that assessee has not provided separately quantity wise production and consumption of various raw material for the production of various sweets and also not provided any chart in respect of yield of finished product. Considering these defects, the assessing officer has rejected the books of accounts of the assessee more particularly in the absence of information regarding yield vis-à-vis its final output and day to day raw material consumption. In the light of the aforesaid discrepancies, the assessing officer has held that true and correct income of the assessee company from books of account were not ascertainable. Therefore, the books of accounts of the assessee were rejected u/s. 145(3) of the Act. Keeping in view the above facts, the assessing officer has estimated gross profit @ 24.90% as shown in the immediate preceding assessment year and made addition of Rs.76,99,255/- in the total income of the assessee.
Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has partly allowed the appeal of the assessee by restricting the addition of gross profit @ 21.5%. Relevant part of the decision of ld. CIT(A) is reproduced as under:- “4.3. Decision: I have carefully considered the facts of the case, the assessment order and the written submission of the appellant. The AO noted that there is a decline in the gross profit rate shown by the appellant in this year as compared to earlier year. The AO did not accept the working of gross profit margin given by the appellant and the reason for fall there in. The appellant on the other hand has submitted that the appellant company had achieved turnover of Rs. 19.34 crores as against the turnover of Rs.13.42 crores last year. The increase in turnover was
I.T.A Nos. 2627/Ahd/2015 & 375/Ahd/2016 A.Y. 2012-13 Page No 4 ITO vs. M/s. Gwalia Sweets Pvt. Ltd.
achieved by selling sweets to wholesale buyers at reasonable profits and to caterers at discounted rates. It is further been submitted that yield data is not maintained by the appellant company in regular course of business. The items such as sweets, namkeens, biscuits etc. are prepared by mixing various materials and it is difficult to maintain yield in such type of trade. The appellant company has also sold goods to caterers, corporate and banks at a discounted rate. The discount given in this year is more as compared to last year and there is a fall of approximately 1% in GP due to this reason. The appellant has further submitted that 75% of the sale is mainly of sweets of different types which are perishable in nature. The yield is also low because of the spoilage of such sweets. It has further been submitted by the appellant that the company has maintained complete records of purchases, sales, opening stock and closing stock, the books of accounts were not defective from any angle. The appellant has accordingly requested that the addition made by the AO by rejecting the books of accounts should be deleted. On a careful consideration of entire facts of the case, it is noted that the revised comparative chart of the GP and NP of earlier year is as under:- Particulars 2011-12 2010-11
Sales 1934.29 1342.29 Add: Increase in Stock 2.25 2.40
Total 1936.54 1344.69 Less: R. M. Cost 1360.00 828.59 Manufacturing Expense 62.59 77.47
Employees Cost (75% for Mfg) 109.29 104.42
Total 1531.88 1010.48 Gross Profit 404.66 334.21 Gross Profit (% of sales) 20.92% 24.90%
The above revised working was given by the appellant during the course of appellate proceedings and the same has also been accepted by the AO and on that basis it has been noted by her that there is a decline of about 4% in GP. It is noted that the main reason for which the AO has made the addition is that the fall during the year is very steep. The GP in the preceding years was about 24.9 %, whereas it has come down to 20.92 % in the present year. It is noted that the appellant is in the business of manufacturing of sweets and bakery items. It is also doing catering business. The appellant is selling sweets at its retail counter and also supplying the same to wholesaler buyers and to the corporate house on a specific orders. It is noted that the AO has rejected the books of accounts on the ground that it has not maintained basic data related to yield of finished product and consumption of raw material. It has also been pointed out by the AO that the register for raw material shows the material issued for processing and register of finished products show the transfer to retail shops only. In view of the discrepancies pointed out by the AO, the rejection, of books of accounts under section 145(3) of the Act is upheld. Now the issue whether the gross profit shown by the appellant is justified or not is to be decided. It is noted that the appellant has given certain explanations regarding fall in gross profit. In my opinion, one of the causes of fall in gross profit is the increase in turnover. The turnover has increased during the year by 44% as compared to the immediately preceding years.
I.T.A Nos. 2627/Ahd/2015 & 375/Ahd/2016 A.Y. 2012-13 Page No 5 ITO vs. M/s. Gwalia Sweets Pvt. Ltd.
It is common knowledge that the turnover cannot be increased without aggressive marketing and giving suitable discounts to certain persons. The appellant has also pointed out that it gave wholesale discount to all customers and as compared to the immediate proceeding year it gave more discount in the present year. Last year the appellant gave discount of Rs.18.66 Lacs, whereas in the current year it has given a discount of Rs.45.28 Lacs. The increase in discount is about 1% of the gross profit margin. It is also a common knowledge that the prices of raw material have increased considerably during last 3 years which has also affected the profit margins of the appellant. The appellant has also given an explanation showing the comparison of increasing sale price as compared to increase in raw material price. The prices of raw material has increased more as compared to the rates of sweets increased by the appellant during the year. For example the increase in sale price of cashew sweets was 21%, whereas the increase in cost of cashew is was about 40%. There was increase in fuel and gas prices during the year also. In view of the above discussion, the appellant has been able to give some justification regarding fall in gross profit. It is also noted that the net profit rate shown by the appellant is comparable to earlier years. This shows that the appellant has been consistently maintaining the profitability and taxable income in spite of the fact that there was a considerable increase in turnover. Considering overall facts and circumstances, it would be appropriate, if the gross profit for the year under consideration is taken at 21.5%, which can be worked out in the following manner: - 1. GP of earlier year - 24.90 2. Adjustment increase in turnover - -1.00 3. Adjustment for discounts given to wholesalers -1.00 4. Adjustment for increase in cost of raw material -1.40 5. Adjusted GP 21.50 The AO is therefore directed to work out the addition by taking the GP rate at 21.5% on the turnover of Rs. 19.34 crores. It act are Total AO or begins perform signed and giving a honey scant the scan within immigrant The ground of appeal is accordingly partly allowed.”
We have heard the rival contention on this issue and perused the material on record carefully. It is noticed that during the year, the assessee company had achieved turnover of Rs. 19.34 crores as against the turnover of Rs. 13.42 cores of preceding assessment year. During the course of assessment proceedings, the assessing officer had made comparison of gross profit shown by the aassessee in the assessment year 2012-13, assessment year 2011-12 and assessment year 2010-11 respectively. The assessing officer has observed that in spite of increased in the turnover in assessment year 201-12 compared to assessment year 2010-11, there was also increased in the gross profit margin from 31.66% to 32.68%. In this regard, the assessee has submitted that there was change in sale break-up of various items. It was submitted that there was very low gross profit on the newly
I.T.A Nos. 2627/Ahd/2015 & 375/Ahd/2016 A.Y. 2012-13 Page No 6 ITO vs. M/s. Gwalia Sweets Pvt. Ltd.
introduced items i.e. bakery items and namkin items as compared to earing of gross profit on sweets items. It was also explained with comparative analysis with various charts in the order of the Ld. CIT(A) that in comparison to preceding year there was increased in the cost of employees deployed for manufacturing of various sweets and other items. It was also explained with comparative analysis in the order of ld. CIT(A) that there was increased in consumption of raw material to the amount of Rs. 13.60 crores from the amount of Rs. 8.28 crores incurred in the preceding assessment year. It was also explained that the increased in the total cost of production and raw material was not compensated by selling as per the prevailing market conditions. It was also explained that there was increase in the trade discount as elaborated in the detail submitted before the ld. CIT(A). The assessee has also submitted in detail about the increased in the cost of raw material and fuel prices which was reproduced at page 26 and 27 in the order of ld. CIT(A). The assessee has also provided the detail of sale prices of all items of sweets in comparison to preceding year as elaborated at page 27 in the order of ld. CIT(A). Vide aforesaid detail, the assessee has demonstrated that there was actual increased in the cost of raw material and fuel prices and comparative sale price was not increased due to market competition from other sweets shops. In view of the above facts and detailed finding given by Ld. CIT(A), we consider that ld. CIT(A) is justified in restricting GP addition @ 21.5%. Therefore, we do not find any force in the appeal of the revenue. Accordingly, the appeal of the revenue is dismissed.
ITA No. 375/Ahd/2016 filed by the assessee
I.T.A Nos. 2627/Ahd/2015 & 375/Ahd/2016 A.Y. 2012-13 Page No 7 ITO vs. M/s. Gwalia Sweets Pvt. Ltd.
The assessee has raised following grounds of appeal:- “1) The order passed by the Ld. CIT (A) dated 10.06.2015 is bad in law. Your appellant submits that it be suitable modified or cancelled 2) The Id. CIT (A) has erred in law and in facts in disallowing employees contribution of PF/ ESIC of Rs. 565,441/- U/s. 36(l)(va) r.w.s. 2(24)(x) of the Act, on account of latte payment, without appreciating the facts of the case, submission of the appellant and provision of law. It is therefore prayed that the disallowance of employees contribution of PF/ ESIC may kindly be allowed. 3) The Id. CIT (A) has erred in Law and on fact in making disallowance of interest of capital work in progress of Rs 7,29,332/- u/s. 36(l)(ii), without appreciating the facts of the case and submissions of the appellant. It is therefore, prayed that the disallowance so made may kindly be deleted. 4) The Id. CIT (A) has erred in law and facts in rejecting the books of accounts u/s. 145(3) of the Act by merely disagreeing with the submission and workings of appellant company for gross profit ratio. It is therefore, Prayed that the book resulted may kindly accepted. 5) The Id. CIT (A) has erred in law and on facts in continue addition of Rs. 11,22,002/- on account of GP estimation, without appreciating the facts of the case and submissions of the appellant. It is therefore, prayed that the addition continue be the Ld. CIT (A) may be deleted.”
It is noticed that assessee has filed aforesaid appeal vide ITA No. 375/Ahd/2016 for assessment year 2012-13 on 16-02-2016 which was time barred by 191 days.
During the course of hearing on this appeal on 4th June, 2009, the 8. assessee has filed application for condonation of delay of 191 days in filing appeal before the ITAT. The assessee has submitted that due to ill health its chief accountant forget to hand over the order of the ld. CIT(A) to its chartered accountant as a result there was delay in filing this appeal by 191 days.
We have heard rival contention on this issue. With the assistance of ld. representatives, we have gone through the application filed by the assessee for condonation of delay of 191 days. The assessee has submitted in a casual manner that there was delay of 191 days in filing the instant appeal because of ill health of chief accountant. The assesse has also failed
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to produce any medical certificate to demonstrate that the default in filing this appeal was occurred because of ill health of chief accountant. The assessee has failed to substantiate the reason for extraordinary delay in filing the instant appeal with relevant supporting material. Therefore, we do not find any substance in the plea of the assessee for inordinate delay in filing this appeal. In the light of the above facts and circumstances, condonation application of the assessee is rejected. Accordingly, the appeal of the assessee is dismissed.
In the result, the appeal of the revenue and the appeal of the assessee both are dismissed. Order pronounced in the open court on 18-06-2019
Sd/- Sd/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 18/06/2019 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद