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Before: Shri Laliet Kumar & Dr. Mitha Lal Meena
In the Income-Tax Appellate Tribunal, Agra Bench, Agra
Before : Shri Laliet Kumar, Judicial Member And Dr. Mitha Lal Meena, Accountant Member
ITA No. 173/Agr./2013 Assessment Year: 2008-09
M/s. Ginni Filaments Ltd., 110 K.M. vs. A.C.I.T., Range-3, Stone Delhi Mathura Road, Chhata, Mathura. Distt. Mathura. PAN-AABCG0942K (Appellant) (Respondent)
Appellant by Sh. R.S. Singhvi, C.A. Respondent by Sh. Waseem Arshad, Sr. DR
Date of Hearing 08.08.2019 Date of Pronouncement 02.09.2019
ORDER Per Laliet Kumar, J.M.: Present appeal is being filed by the assessee aggrieved from the order of the ld. CIT(A) dated 07.12.2012 on the following concise grounds : “1. BECAUSE, upon due consideration of facts and in the overall circumstances of the case 'CIT(A)' had fallen in error of fact and in law in proceeding to pass appellate in an ex-parte manner without due consideration of material facts available on records of the authorities below. 2. (a) BECAUSE, upon due consideration of facts and in the circumstances of the case the authorities below were not justified in making addition of Rs.7,31,07,000 after rejecting the Manufacturing/Trading results as were derived from the accounts, maintained on regular basis which were duly audited under section 44AB of the 'Act' and the Auditor has furnished unqualified Audit Report certifying the correctness in the accounts.
ITA No. 173/Agr/2013 2
(b)BECAUSE, the authorities below had taken the estimated rate of Gross Profit without considering the facts of the case, explanations furnished by the appellant and evidences as were brought on records during the course of hearing. (c) BECAUSE, in any view of the matter, rejection of accounts do not ispo facto gives rise to the jurisdiction to the 'AO' to make addition in the Gross Profit as fairly shown by the 'appellant' in the light of law laid down by the Hon'ble Rajasthan High Court in the case of CIT Vs Gotan Lime Khanij Udyog reported in (2002) 256 ITR 243(Raj.). 3. BECAUSE, the authorities below erred on facts in making and sustaining addition of Rs. 12,26,645/- on account of notional gain on foreign currency as income without considering the facts that the same is unrealizable and notional. 4. BECAUSE, the authorities below had fallen in error in disallowing prior period expenses amounting to Rs. 13,52,866/- and taxing prior period income without considering the normal prudence accounting system an erroneous interpretation of law and without appreciating that accruals event of the same has taken place in current year. 5.BECAUSE, the authorities below had fallen in error in making addition of Rs.29,11,000/- towards notional income on account of rent of machines without considering the facts that the same are not realized and is not realizable. 6. BECAUSE, the authorities below had fallen in error in disallowing deferred revenue expenses amounting to Rs.19,67,582/- without considering the facts that the same was never claimed in earlier years by the assessee and the same is being partly claimed on year to year basis in part and is being allowed accordingly consistently. 7. BECAUSE, on due consideration of facts and in the overall circumstances of the case the Id CIT(A) ought to have given clear cut finding in allowing the loss on merger of companies for the period 01.1 2.2007 to 31.03.2008. 8. BECAUSE, the 'AO' has erred in giving credit of TDS by Rs. 10,34,853/- instead of Rs. 13,81,255/- as claimed by the assessee in the revised computation of income.
ITA No. 173/Agr/2013 3
BECAUSE, while making the assessment the 'AO' and while sustaining the addition the 'CIT(A)' made various observations/conclusions which are contrary to facts available on records. The findings recorded in this aspect are wholly perverse and inadmissible in law. While making and sustaining the addition submission made and evidences filed have been rejected arbitrarily. 10. BECAUSE, the 'appellant' denies levy of interest under section 234B & 234C of the 'Act'. 11. BECAUSE, the order appealed against is contrary to the facts, law and principles of natural justice.”
Effectively ground No. 2(a) to 2(c) pertain to rejection of books of account and estimation of gross profit @ 16% as against 13.96% disclosed by the assessee.
Apropos these grounds ld. AR for the assessee has drawn our attention to
page 7 of the assessment order to the following effect : Perusal of above mentioned table reveals that - 1. Production loss as shown in table 'A' of the current year is 92.7 % higher than that of A.Y. 2007-08. It is 81.97% higher than that of A.Y. 09-10. 2. Consumption of processed fabric in production of garments varies from 1.578 Kg. per garment in A.Y. 2007-08 to 0.268 Kg. in A.Y. 2009-10 During the year under consideration it is 0.33 Kg. 3. Count wise details of production consumption, sales etc. of yarns has not been maintained by the assessee. 4. Valuation of stock is neither at cost or market price as can be seen from the above tables. 5. Perusal of the above chart reveals that average cost of yarns comes to Rs. 163.66 per kg, whereas the assessee is making sales @ 95.05. Cost of processed fabrics comes to Rs. 317.78 against the average sale prices of Rs.257.94 per kg.
ITA No. 173/Agr/2013 4
On the facts and in the circumstances of the case as discussed above, Manufacturing/trading results as shown by the assessee cannot be accepted. Books of account are liable to be rejected under section 145(3) of Income Tax Act and sales have to be estimated by adopting appropriate G.P. rate. There is huge fall in G.P. rate as compared to immediately preceding year. This is a fact that cotton prices have increased substantially. Other reasons as stated by the assessee cannot be totally ignored. But the fact remain that the assessee is selling goods at prices lower than its cost. The assessee has also made sales of some items at prices lower thanits purchase price. There is nothing on record to snow the assessee had entered in long term contract to make sales at prices lower than its cost. In these circumstances abnormally low sale price cannot be accepted. The account suffers from infirmities as discussed above. Keeping in view the reply filed by the assessee form time to time, it would be appropriate to allow some discount in G.P. rate while adopting G.P. rate of earlier year. In A.Y. 2007-08 the assessee has shown G.P. rate of 20.71 % and in the A.Y. 2009-10 G.P. rates is 15.80%. In the current year G.P. rate is 13.96%. If G.P. rate of the current year is taken at 16 % it will be fully justified on the facts and in the circumstances of the case.”
It was submitted by the ld.AR that the AO had wrongly rejected the books of
account and thereafter had computed the gross profit @ 16%. It was submitted that
on appeal before the ld. CIT(A), the ld. CIT(A) had also followed the decision of the
Assessing Officer and in paragraph No. 5.3 he had concluded as under : “5.3 I have considered all these objections taken by the appellant in the first ground, however, I find that neither in the statement of facts, nor in the grounds taken, no reason has been given for selling certain items at price less than its cost. The objections raised in the ground have also been found to be very brief and general in nature and no supporting documents, data or figures have been mentioned showing that the decision of the AO was wrong. In order to substantiate the objections taken in this ground, the appellant has also been provided opportunity to appear before me to show from the record and also produce the relevant documents to prove that data taken by the AO while drawing his conclusion in the assessment order about increase in the production cost and sale of certain items at a price less than the cost are contrary to the fact. But no such attempt has been made by the appellant company, even no written submission has been filed giving details and showing that the conclusion
ITA No. 173/Agr/2013 5
drawn by the AO was wrong. Therefore, I have accepted the conclusion drawn by the AO about non-maintenance of books of account by the assessee(appellant) property showing correct position of manufacturing and trading results and hence, I confirm the decision of the AO rejecting the books of account u/s.145(3) of the I.T. Act. Having confirmed the rejection of books of account by the AO, i have also found that the AO has reasonably estimated the gross profit rate at 16% after taking into account the GP rate disclosed by the assessee(appellant) in the previous assessment year as well as in the subsequent year and hence, I do not find any infirmity in estimation of profit by the AO and making the requisite addition of Rs.7,31,07,000/- on account of showing low GP rate and, therefore, the addition of Rs.7,31,07,000/- is confirmed and accordingly, ground no.1 is dismissed.”
It was submitted that during the assessment proceedings, the assessee had 5.
produced the books of account consisting of audited balance sheet and tax audit
report, cost audit report and other documents as called upon by the Assessing
Officer and there is no reason for the Assessing Officer to reject the books of
account.
5.1 Before the ld. CIT(A), the assessee had given point-wise rebuttal to the
objection raised by the Assessing Officer. Said objections are forming part of the
paper book. The ld. AR has summarized the same in the written submissions in para
6.10 to the following effect : 6.10 In fact, the observations of the assessing officer at Pg 7 are arbitrary, irrational and based on mis-appreciation of facts. The point was rebuttal of the same is hereunder: • It is submitted that figures indicating rise in production loss in Table A at Pg 5 of the assessment order are uncorroborated and it is not known from where the assessing officer has picked up these figures. Moreover, the assessing officer has totally ignored the quantity of work in progress while computing the purported production loss and as such the very basis of conclusion is incorrect
ITA No. 173/Agr/2013 6
and erroneous. Even otherwise, the mere fact of increase in production loss in the year under reference per se would not lead to any adverse inference as long as the production data is actual and correct. It may be appreciated that assessing officer has not disputed the correctness of opening stock, purchases, sales and closing stock and as such hypothetical allegation of production of loss is highly arbitrary and misconceived. • The AO has observed that there is reduction in consumption of fabric in Table B at Page 6 of the order. It is observed that consumption of fabric per garment has reduced from 1.578 Kg in AY 2007-08 to 0.33 Kg in current year. It is incomprehensible as to how reduction of consumption is an indicator of defect in books of account. In fact, the reduction in consumption is a favourable fact which shows improved efficiency and results in increase in profit. • The AO has observed that appellant has not maintained count-wise details of production which is factually incorrect as complete count-wise details are maintained which is corroborated from cost audit report. • The observation of AO regarding valuation of stock is also factually incorrect. It is clarified that stock has been consistently valued at cost or NRV whichever is lower. This position is corroborated from point no. 12(a) of tax audit report at PB Pg 38 as well as note no. 8 of audited Balance sheet at PB Pg 27. • The allegation of difference between cost and sale price of yarn as per Table C and Table D at Pg 6 of the assessment order is illogical as the AO has attempted to compare cost and sale price of different qualities of yarn and such the very basis of comparison is patently wrong. In any case/ in absence of any dispute with regard to correctness of data extracted from our own record, there could be no ground or basis for drawing adverse inference by making erroneous comparisons.
On the basis of the above, it was submitted that firstly there was wrong
exercise of power u/s. 145(3) by the Assessing Officer and secondly, even if there
were alleged objections, those objections were duly answered by the Assessee the
assessment proceedings as well as in remand proceedings. The ld. AR has taken us
ITA No. 173/Agr/2013 7
to the order passed by the ld. CIT (A) where the contentions of the assessee were
duly noticed by the ld. CIT(A). Moreover, our attention was drawn to page 32 of the
paper book (Annual Report) where the quantities, cost and value of raw material
consumed for the assessment year 2007-08 werementioned to the following effect :
2007-08 Quantity Amount Rs. In Lacs (E)Sales (i).Yarn 225.42 @ 21426.93 (iii) Processed fabrics 14.68## 3786.56
2007-08 Kgs in lacs Rs. In Lacs (G) Raw Material consumed
Yarn 12.82 2098.16 Processed fabrics 0.37 117.58
6.1 It was further submitted that the assessee has been consistently following the
same accounting method and there was no reason for the Assessing Officer to reject
the books of account. Further, it was submitted that the conclusion of the Assessing
Officer is wholly unsustainable.
6.2 It was submitted that on account of fall in GP ratio, the Assessing Officer is not
empowered to invoke the provisions of section 145(3). It was submitted that no
additions could be made on account of alleged defects pointed out by the Assessing
Officer. The ld. AR has relied upon the following decisions :
ITA No. 173/Agr/2013 8
(i). CIT vs. UP State Food and Essential Commodities (2014) 221 Taxman 16 (Allahabad HC) (ii). CIT v. Poonam Rani (2010) 326 ITR 223 (Delhi HC) (iii). DCIT v. Subhash Chand Agrawal (2013) 58 SOT 122 (Alld. Tribunal)
It was further submitted by the ld. AR that for the assessment year 2012-13,
the ld. CIT(A) in the identical facts, despite decline in GP, had accepted the GP rate of
8.41%. He has drawn our attention to the table reproduced in paragraph 6.7 of the
written submissions to the following effect :
A.Y. SALES Accretion/ Material & Payment & G.P. G.P. RATE Assessment (Decretion) of Manufacture Benefit to under Stock ngExp. Employee
2000-01 15,595.80 -105.82 11,080.18 578.97 3,830.83 24.56% U/S143(3)
2001-02 17,732.39 773.36 13,679.41 700.54 4,125.80 23.27% U/S143(3)
2002-03 17,130.92 -811.42 12,205.08 728.91 3,385.51 19.76% U/S 143 (1)
2003-04 17,433.03 -107.67 12,737.39 781.76 3,806.21 21.83% U/S143(3)
2004-05 19,821.31 258.01 15,169.17 822.22 4,087.93 20.62% U/S 143 (3)
2005-06 18,462.63 -93.30 13,839.95 951.29 3,578.09 19.38% U/S 143 (3)
2006-07 19,042.44 135.02 13,939.33 1,075.90 4,162.23 21.86% U/S 143 (3)
2007-08 22,445.75 752.87 17,185.56 1,357.64 4,655.42 20.74% U/S 143 (3)
2008-09 30,176.50 753.91 24,662.71 2,053.55 4,214.15 13.97% U/S 143 (3)
2009-10 40,805.38 -606.49 31,530.16 2,217.47 6,451.26 15.81% U/S 143 (3)
2010-11 50,720.84 327.04 38,320.82 2,404.81 10,322.25 20.35% U/S 143 (3)
2011-12 69,298.80 5170.08 57,959.74 2,865.75 13,643.39 19.69% U/S 143 (3)
2012-13 71,214.93 -3500.87 48,647.57 2,985.96 16,080.53 8.41% U/S 143 (3)/250
ITA No. 173/Agr/2013 9
The para 9 of the order of the ld. CIT(A) for assessment year 2012-13 accepting the
G.P. rate of 8.41% based on the remand report, was as under :
"9. G.P. Addition Rs. 82,68,05,337/- The AO has made an addition ofRs. 82,68,05,337/- by applying the average GP rate 20.02% which is increased by 11.61% of the relevant year GP rate. The assessee's co. had G.P. rate of 2035% in the A.Y. 2010-11 and G.P. rate of 19.69% in A.Y. 2011-12. The same has fallen to 8.41% in the relevant assessment year i.e. 2012-13. The assessee co. was asked to file the details regarding month wise sale and purchase vide notice u/s. 142(1) dated 30.01.2015. The assessee was failed to file any of these details. In absence of these details the genuineness of the trading result declared by the assessee co. could not be relied upon by the AO and this addition had been made. During the course of remand proceedings assessee co. furnished a detailed submission regarding addition on G.P. rate. It is worthwhile to mention here that AO has not indicated any discrepancy in the books of account, statutory audit report and also in tax audit report already placed on record. The AO has not rejected books of accounts u/s. 145(3) assumption basis applying G.P. Rate without finding any discrepancy in books of account. The assessee co. has maintained proper books of account and are audited under Companies Act and tax audit is also conducted as per the provisions of Income Tax Act. The company is also subject to cost audit and duly maintaining cost record in companies with Companies Act. The decision on this issue may be taken in the light of the above discussion."
Submissions of DR
On the other hand, the ld. DR relies upon the orders of the lower authorities. It
was submitted that the books of account were not maintained by the assessee in
proper form, therefore, AO had rightly rejected. He drew our attention to page 7 of
the order passed by the Assessing Officer as well as the order of the ld. CIT(A) in
para 5.1 to 5.3.
ITA No. 173/Agr/2013 10
We have heard the rival contentions of the parties and perused the material
available on record. Before we deal with the facts of the case we would like to
mention that the Assessing Officer is empowered by virtue of section 145(3) to
reject the books of account and make assessment on estimate basis as per section
144 of the Act. But before invoking the provisions of section 145, it was incumbent
upon the Assessing Officer to record that the books of account were not correctly
maintained and were not complete and also to mention that the method of
accounting followed by the assessee was not in accordance with the norm laid down
by ICA or the Central Government. Further, it was the duty of the Assessing Officer
to show that the income was not computed by the AO in accordance with notified
accounting standard.
9.1 If we look into the orders of the authorities below, then we find that thelower
authorities have neither pointed out any defect in the books of account of the
assessee with respect to the correctness or completeness (in fact, the AO has relied
upon the books of account and used the transactions recorded in the books of
account to come to the conclusion that there was decrease in GP).
9.2 Further the AO has not mentioned that the method of accounting used by the
assessee was contrary to the notified accounting standards and also he had failed to
mention that the income computed was contrary to the standard notified by the
authorities.
ITA No. 173/Agr/2013 11
9.3 In our understanding, the gross profit/net profit are the end result reached on
the basis of books of account. In other words, the gross profit or net profit are the
resultant values arrived by the Assessee on the basis of the maintaining the books of
account. Merely because there is decrease in GP may be a reason to alarm and alert
the Assessing Officer, but the Assessing Officer has to do more homework to dig up
the reasons for decrease in GP/NP and for that purpose, it is the duty of the
Assessing Officer to point out the specific defects as to the correctness and
completeness of the books of account. Nothing has been done in the present case.
When we look into the order of the AO, it is clear that the Assessing Officer has
given following reasons for rejection of books of account as Fall in G.P. rate (page 3
of AO). The reasons for fall in GP rate were delineated on account of following
reasons:
(i). Increasing raw material price (ii). Decrease in sale price
The Assessing Officer in tables A,B,C,D&E at page 5 to 7 has mentioned that the
production of Gray Fabrics from yarn, production of garments from processed
fabrics, cost of different raw material used, average sale price of different items sold
by the assessee and average rate of opening and closing stock of different items are
shown. After recording all this, the AO has rejected the books of accounts of the
assessee.
ITA No. 173/Agr/2013 12
10.1 The assessing officer had mentioned the reason for coming to the conclusion
for increase in raw material by comparing the cost of purchase of raw material for
the previous years. No other independent material was brought on record to show
that the prices paid for the raw material was not prevalent in the market or there
was interrelated party transaction by virtue of which the assessee had paid the
higher price to the related party, thereby reduce the profit. Similarly for the
decrease in sale price the assessing officer had compared the sale price of yarn
which had resulted into loss. In fact while doing so the assessing officer had
compared the sale price of raw yarn with the processed fabric. In this case also the
assessing officer had not brought on record any independent evidence for
decreasing the sale price. The assessing officer has not brought on record that the
assessee has made a sale out of books or have made under invoicing. In view of the
above on facts also we do not find any reasons for rejecting the books of account by
the assessing officer.
10.2 In our considered opinion, the requirement of section 145(3) must be
complied by the Assessing Officer and he has to mention pointedly that in what
manner and on what basis, the conclusion was drawn by the Assessing Officer that
the books of account have not been correctly maintained.
ITA No. 173/Agr/2013 13
10.3 On the contrary, if we look into the figures provided in tables A to E then it is
clear that the said table work wereconstructed by the Assessing Officer based on the
books of accounts of the assessee, cost audit report and balance sheet of the
assessee. If the record is maintained by the assessee, then it is for the Assessing
Officer to point out how the maintained books of accounts were contrary to
accounting standard or how the same were defective. Once,the Assessing Officer is
taking the same figures as provided by the assessee in books of account and if the
said figures gave rise to decrease in GP rate, than the decline in GP cannot be made
basis of rejecting the books of account. In our view the whole exercise of rejection of
books of account is totally an excessive use of power by the Assessing Officer. We
are of the opinion that once the assessee is maintaining true and correct accounts in
respect to affairs of its industry then the same cannot form basis for rejection of
books of account. We may rely upon t. he decision of [2013] 40 taxmann.com 284
(Gujarat)Dhiraj R Rungta* wherein it was held that the rejected books of account
can not form basis of addition , similar view was taken in the matter of U. P State
Food and Essential Commodities. 221 Taxman 16 (All).
10.4 In the present case, basis of rejection of rejection of accounts by the Assessing
Officer was totally erroneous and uncalled for. The Assessing Officer has not given
any reason which would fall within the four corners of the ingredients as stipulated
u/s. 145 (3) of the Act.
ITA No. 173/Agr/2013 14
We may further mention that the basis of making the addition on the basis of
G.P. is also unsustainable, as making the GP addition on the basis of earlier year or
future year is not called for when the rejection of books of account was found to be
unsustainable. As in the present case, we do not agree with the finding of the lower
authorities with respect to the rejection of books of account and in consequence
thereof, we have no hesitation to hold that the GP rate of 16% is also erroneous and
liable to be set aside. We may further mention that in the similar circumstances, the
remand report was submitted by the Assessing Officer for the assessment year
2012-13 and the ld. CIT(A) had deleted the addition of Rs.82.68 crores based on the
remand report of the Assessing Officer.
Books of Accounts maintained in regular course of business cannot be
rejected unless there are strong and sufficient reasons to indicate that they are
unreliable. Hon’ble Supreme Court in the case of Woodward Governor India Private
Limited [(2009) 312 ITR 254 SC] = [TS-40-SC-2009-O] held that “...Accounts
regularly maintained in the course of business are to be taken as correct unless
there are strong and sufficient reasons to indicate that they are unreliable...”
12.1 The primary condition for rejecting the book results as laid down under
section 145 of the Income-tax Act, 1961 is that the ld. AO should be satisfied that the
books of account maintained by the assessee are not complete and correct. As can be
seen from the findings of the lower authorities, there is no instance of falsity or
ITA No. 173/Agr/2013 15
incompleteness of the books of account. The books of account reflect the true state
of affairs of the assessee company. Under such circumstances merely because the
assessee company sold its products to its sister-concern, at a price lesser than the
prevalent market price on the date of sale, would not be a sufficient ground to come
to a conclusion that books of account of assessee company were not complete or
correct. This finding cannot, in any way, warrant rejection of books of accounts.
12.2 Similar ratio, under identical set of facts, has been laid down by the Hon’ble
ITAT Bangalore Bench in the case of Sphoorti Machine Tools (P.) Ltd [(2012) 19 ITR
0736 Bang] = [TS-744-ITAT-2012(Bangalore)-O] in which the Hon’ble Bench held
that “...The fact that the assessee has sold its products to its sister-concerns at a
price lesser downloaded from than the price at which the same product is sold to
the third parties, in our opinion, would not be a sufficient ground to come to a
conclusion that the books of account of the assessee are not complete and correct.
There is no evidence brought on record that over and above the price shown in the
books of account, the assessee received something more from M/s. Pragathi
Automation P. Ltd. As rightly contended on behalf of the assessee it is for the
businessman to decide the price at which he has to sell its products to its customers.
The law is well-settled that the Revenue cannot insist on the way in which
businessmen should conduct his business. The Revenue cannot compel a
ITA No. 173/Agr/2013 16
businessman to sell its products at a particular price, so that the assessee derives
maximum profit...”
12.3 Reliance is also placed on the order of Hon’ble Punjab & Haryana High Court
in the case of Saimbhi Cycles & Auto Industries, Ludhiana [(2015) 229 Taxman 552
P&H] = [TS5397-HC-2014(Punjab &haryana)-O] wherein the Hon’ble High Court has
upheld the following finding of Hon’ble ITAT contained in Para 7 of the order. The
same is reproduced for the sake of convenience:
“...The above findings were affirmed by the Tribunal vide order dated 29.4.2013,
Annexure A.III with the following observations:—
"8. We have considered the rival submissions carefully. We find that first of all the
assessee is a concern wherein assessee was entitled to deduction under section
80IB of the Act @ 25% which would mean that effective tax rate would be 22.50%
whereas the sister concern M/s Darshan Udyog is required to pay tax @ 30%,
therefore, there was no incentive to make sales at lower rate. In any case, in the
detailed submissions before the Assessing Officer and CIT(A) it demonstrated that
practically no sales have been made to outside parties and therefore, comparison is
not correct. In any case, the Hon'ble Supreme Court in the case of CIT v. Glaxo
Smithkine Asia (P) Limited has clearly held that since there was no provision to
make addition on account of receipts which are at less than the fair market value,
ITA No. 173/Agr/2013 17
therefore, such additions are not justified. In these circumstances, we find nothing
wrong with the order of learned CIT(A) and we confirm the same....”
12.4 In view of the above and also in view of the fact that there was no rejection of
books of accounts, ground Nos. 2(a) to (c) are allowed.
Ground No. 3 is not pressed.
13.1 Ground No.4 pertains to disallowance of prior period expenses. The ld. AR has
drawn our attention to page 10 of the assessment order where the Assessing Officer
at Sl. (D) has disallowed the amount of Rs. 13,52,866/- on account of prior period
expenses. It was submitted that the assessee has not claimed this amount in the
computation of income and our attention was drawn to page 29 Sl. No. 11 of the
paper book to the following effect :
2007-08 2006-07 (Rs.in lacs) (Rs.in lacs) 11.a) Prior period Income(Expenses) represents: Debit relating to earlier years (15.14) (34.91) Credit relating to earlier years 14.75 11.13 Depreciation adjustment - 0.85 ----------- ----------- (0.39) 22.93) ----------- -----------
Further, it was submitted that the assessee has been consistently following this
policy in the earlier years also and has claimed as allowable expenses u/s. 37 of the
Act.
ITA No. 173/Agr/2013 18
On the other hand, the ld.DR had drawn our attention to page 12 & 13 of the
CIT(A) order where the ld. CIT(A) has discussed in details the issue of prior period
income and expenditure.
We have heard the rival contentions of the parties and perused the material
on record. Para 8.2 of the ld. CIT(A)’s order is as under : 8.2 As I have held in the previous ground, due to following of mercantile system of accounting, if any, gain or loss is arising to the assessee(appellant) on the last day of accounting year, the same has to be taken into account while computing the income of the assessee(appellant), similarly, in case of claiming of any expense, if the same pertains to the previous year, these expenses cannot be allowed during the year under consideration and such expenses should have been quantified in the previous year itself and deduction for the same should have been taken. Therefore, I find that the AO is correct in disallowing the claim of prior period expenses of Rs.13,52,866/-. As regards to prior period income though the appellant has mentioned in ground no.4 that the AO has taxed the prior period income, no such details have been brought before me about amount of prior period income taxed by the AO during the year under consideration. However, the AO is directed to examine from the details of income furnished before him whether any prior period income has been taxed in this year and if any such income has been taxed for this year, the same should be excluded and the assessment proceeding of earlier year may be reopened for taxing the income of prior period in the relevant assessment year.”
From the perusal of the above, it is clear that the ld. CIT(A) has directed the
Assessing Officer to verify from the record whether any prior period income has
been taxed in the year under consideration and if it was so then it should be
excluded and added to the relevant assessment year after reopening the case for
ITA No. 173/Agr/2013 19
taxing the income of the prior period. In our considered opinion, the income and
expenditure are required to be taxed in the year in which it was accrued and if the
income is considered to be accrued in the year under consideration, may be relating
to the prior period, then any expenditure laid out or expanded wholly and
exclusively for the purpose of business is also required to be allowed in this year. In
the present case, if we look into the computation of income, then it is clear that the
assessee has not taken into account the prior period expenses in computation of
income. As the assessee has not taken into account the prior period expenses for the
purpose of computation of income, then there was no reason for the Assessing
Officer to make disallowance of Rs. 13,52,866/-. In view of the above, the ground
raised by the assessee is allowed, as there is no occasion for the Assessing Officer to
disallow the same being not arising and forming part of the profit & loss account of
the assessee.
Ground No. 5of the assessee’s appeal pertains to notional rental income. The
AR has drawn our attention to page 11 of the assessment order where the Assessing
Officer had added the amount of Rs.29,11,000/- as notional rent for the year under
consideration. The submissions of the AR are that the appellant had let out the
machinery to M/s. Ginni International Ltd. (GIL) and dispute arose between the
assessee and the tenant which led to filling of civil suit before the Delhi High court
ITA No. 173/Agr/2013 20
and the assessee in balance sheet at page 29 had disclosed the pendency of the suit
before the Delhi High Court. Note 7 reads as under : “7. The company had given certain machines valuing Rs.340.08 lacs (WDV as on 31.03.2008 Rs. 134.78 lacs) on loan against payment of rent to M/s. Ginni International Ltd. (GIL). GIL continued to pay the agreed rent up to August 2000, where after they stopped paying the said rent. The said machines formed part of the overall assets financed by various financial institutions and hypothecated to them. The machines lent to GIL were with the consent of the competent authorities. During the year 2002-03 GIL claimed that the said machines were given to them under hire purchase system. Since the claim of GIL is unfounded and not tenable in law, and in absence of rent forthcoming, the company was left with no alternative but to file a civil suit before Hon'ble Delhi High Court for recovery of the rent outstanding Rs.98.67 lacs upto August 2003 including interest of Rs.11.33 lacs and further rent @ Rs.2.43 lacs per month from September 2003 onwards. In view of the financial status of GIL and the legal advice the company is certain to recover the outstanding amount from GIL. As accounting prudence, the company has not recognised income of Rs.29.11 lacs in profit & loss A/c as rent on the said machines during the year.”
17.1 It was further submitted that M/s. GIL had refused to recognize its liability to
pay rent on account of non-realization of rent and that the AO had accepted this
position in the preceding as well as succeeding year and no additions were made on
account of notional rent.
17.2 Further, it was submitted that an amicable settlement entered between the
parties in the assessment year 2011 for the total consideration of Rs.2.60 crores
based on the cost of machine and rent of machines as placed at page 162 of the
paper book. It was submitted that the above said amount received by the assessee
ITA No. 173/Agr/2013 21
was used by the assessee for reducing the block of asset in the assessment year
2010-11.
17.3 The ld. AR relies on the decision of Hon’ble Supreme Court in the case of CIT
vs. Excel Industries Ltd., 358 ITR 295 (SC) and also in the matter of CIT vs. Goyal MG
Gases (P) Ltd. 303 ITR 159 (Delhi).
On the other hand, the ld. DR has submitted that the assessee was following
mercantile method of accounting and hence, the rent is required to be shown on
accrual basis in the books of account.
We have heard the rival contentions and perused the records. The rent was
payable by GIL on account of machines let out by the assessee and the said machines
were given to GIL after taking consent from the Financial Institution to whom the
machines were hypothecated.
19.1 In our view, if GIL was not liable to pay the rent, and that position of GIL was
accepted by the assessee, then it was not required to be shown in the books of
account. However, once the assessee is claiming the rent on account of leasing out
the machines to GIL and GIL is subsequently settling the suit filed before the Delhi
High Court on the basis of mutual settlement whereby the GIL paid an amount of
Rs.2.60 crores towards payment against machinery cost, rent charges etc.
ITA No. 173/Agr/2013 22
19.2 In the opinion of Bench , mere assertion of the assessee that GIL was denying
the rent and hence it was not shown in the books and therefore addition of notional
rent was incorrect, is totally unacceptable. The assessee was following mercantile
system and the rent was required to be paid on accrual basis. Further the letter at
page 162 with subject “payment towards machinery cost, rent charges etc.”
clearly shows that the amount of Rs.2.60 lacs were not only towards block of assets,
but was also towards rent charges also. Therefore, the stand of the assessee is
belied by the letter of the GIL filed by the assessee itself . In view of the above, we do
not find any reason to interfere with the order passed by the lower authorities.
Further, we are of the opinion that merely because no notional rent was added
either in prior or subsequent year is no reason to deny the arguments of the ld. DR. Every year is a separate assessment year and the principle of res judicata does not
apply in the tax proceedings is an admitted position in law.
19.3 Reliance on the judgment of CIT vs. Excel Industries by the assessee is not applicable as in the said case, the Hon’ble Supreme Court mentioned that “there was no corresponding liability on the custom authorities to pass on the benefit of duty free imports to the assessee until the goods are actually imported and made available for
clearance” and in those facts, it was held as under : “Applying the three tests laid down by various decisions of this court, namely, whether the income accrued to the assessee is real or hypothetical ; whether
ITA No. 173/Agr/2013 23
there is a corresponding liability of the other party to pass on the benefits of duty free import to the assessee even without any imports having been made ; and the probability or improbability of realisation of the benefits by the assessee considered from a realistic and practical point of view (the assessee may not have made imports), it is quite clear that in fact no real income but only hypothetical income had accrued to the assessee and section 28(iv) of the Act would be inapplicable to the facts and circumstances of the case. Essentially, the Assessing Officer is required to be pragmatic and not pedantic.”
However, when we look into the record, it is clear that the assessee has let out the
machines on lease to GIL and the GIL was under legal obligation to pay yearly rent of
Rs.29.11 lacs. In our considered opinion, there is an obligation of GIL to pay rent to
the assessee in terms of lease agreement and further it was under obligation to
return back the assets leased to it by the assessee. Further the GIL while entering
into amicable settlement had paid an amount of Rs.2.60 crores towards the value of
machines as well as for pending rent which clearly shows that the rental income
of the assessee was not a hypothetical or imaginary income, but had accrued on
account of use of industrial plant by GIL . Therefore, there was no error in the orders
of the authorities below.
Ground No. 6 pertains to disallowance of claim of deferred revenue expenses
to the extent of Rs. 19,67,582/- in respect of payment made to financial institution
on restructuring of loans. The AO considered the disallowance on the ground that
deferred revenue expenses are only allowable in terms of provisions of section
ITA No. 173/Agr/2013 24
35Dand the payment made to financial institution is covered u/s 43B of the Act. The
CIT(A) has also upheld the disallowance. The contention of the ld. AR is that the
identical claim of deferred revenue expenses are being allowed since AY 2003-04
without any reference to provisions of section 35D or 43B of the Act. It was
submitted that during the year under consideration there was no fresh expenses or
new claim and it is not understood on what basis, reference was made to provisions
of section 35D or 43B. the ld. AR further clarified that the claim of deferred revenue
expenses was in respect of advance payment of Management fee, restructuring fee
and other administrative expenses to financial institutions spread over the period of
respective loans. The details of deferred revenue expenses and supporting
documents are placed at paper book pages 165-170. The expenses have been spread
over the period of loan so as to reflect true and fair picture of profit and loss of the
company and there is absolutely no dispute with regard to genuineness of the
expenses and the Assessing Officer has merely disallowed the claim on technical
ground without appreciating the nature of the claim and past history and the fact
that payments of such expenses have already been made in AY 2002-03 and as such
provisions of section 43B are not applicable.
It was further submitted by the ld. AR that identical claim of expense has been
ITA No. 173/Agr/2013 25
appellant from AY 2002-03 onwards and as such the impugned disallowance, in
absence of any change in facts, is in totally wrong and in disregard to principle of
consistency. The factual position to this effect is supported from Schedule 19 of
Profit and Loss a/c placed at FB Pg 26 wherein the identical claim of deferred
revenue expenses in AY 2007-08 has been allowed by the assessing officer. It is
therefore, submitted that the claim of deferred revenue expenses is relatable to
expenses actually incurred and apportioned over the period of loan, the same is in
accordance with provisions of section 37 of the Income Tax Act, 1961 particularly
based on past accepted history.
The ld. DR, on the other hand, relied on the orders of authorities below.
We have heard the rival contentions and perused the material on record. It is
an undisputed fact that the identical claim of assessee, in the similar facts and
circumstances of the case, has been accepted by the Revenue authorities since 2002-
03 onwards. There is no rebuttal of the fact stated by the assessee that the
impugned deferred revenue expenses are relatable to expenses actually incurred
and apportioned over the period of loan. In view of the above and following the rule
of consistency, we are of the opinion that the ld. authorities below were not justified
ITA No. 173/Agr/2013 26
in disallowing the claim of the assessee. Accordingly, the disallowance made on this
count is liable to be deleted.
Rest of the grounds are either general in nature or consequential.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 2nd Sept., 2019.
Sd/- Sd/- (Dr. Mitha Lal Meena) (Laliet Kumar) Accountant Member Judicial member
Dated: 2nd Sept., 2019 *aks* Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order Assistant Registrar Income Tax Appellate Tribunal Agra Bench, Agra