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Income Tax Appellate Tribunal, ‘’C’’ BENCH, AHMEDABAD
Before: SHRI AMARJIT SINGH
आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’C’’ BENCH, AHMEDABAD BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND Ms MADHUMITA ROY, JUDICIAL MEMBER अपील सं./ITA No.2600/Ahd/2016 With C.O.No.210/Ahd/2016 &�नधा�रण वष�/Asstt. Year:2012-2013
D.C.I.T., M/s. Vijay Steels, Circle-3(3), 13, Rachana Society, Vs. Ahmedabad Satellite Road, Satellite, Ahmedabad
PAN: AABFV6595Q & अपील सं./ITA No.2601/Ahd/2016 With C.O.No.211/Ahd/2016 &�नधा�रण वष�/Asstt. Year:2013-2014
D.C.I.T., M/s. Vijay Steels, Circle-3(3), 13, Rachana Society, Vs. Ahmedabad Satellite Road, Satellite, Ahmedabad
PAN: AABFV6595Q
(Applicant) (Responent) Revenue by : Shri Lalit P. Jain, Sr.D.R : Assessee by Shri B.R. Popat, A.R सुनवाई क� तार�ख/Date of Hearing : 16/01/2019 घोषणा क� तार�ख /Date of Pronouncement: 23/01/2019
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 2 आदेश/O R D E R PER BENCH, JUDICIAL MEMBER:
These appeals and Cross Objection have been filed by the Revenue and Assessee respectively us against the two separate order of the Learned Commissioner of Income Tax(Appeals)-3, Ahmedabad dated 02/08/2016 and 03/08/2016, arising out of order passed under section 143(3) of the Income Tax Act, 1961 (in short “ the Act’’) for the Assessment Years 2012-13 & 2013-14 respectively.
The issue involved in these appeals are identical, on similar set of facts. Hence all are heard analogously and are being disposed of by this common order. The ITA bearing No.2600/Ahd/2016 for Assessment Year 2012-13 is taken as the lead case.
The Revenue has come up against the deletion of addition of Rs.1,79,12,777/- out of total addition of Rs.1,84,38,444/- made on account of excess burning loss. The burning loss as shown by the assessee ranging from 7.64% to 10% is very high considering the assessee’s line of business and consumption of electricity since valid from 74 units to 152 PMT as has been failed to be appreciated by the Ld.CIT(A) has also alleged by the Revenue.
The assessee engaged in the business of Re-Rolling of Steel. The firm also manufactures Angles, Flats, Square and Round Bars, TMT etc by using iron and steel plates obtained from the ship breaking industry as its principal raw material. The iron and steel plates are first cut into specific sized pieces with the help of shearing machines. The piece so obtained are then fed in to the
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 3 furnace and heated at a temperature of approximately 1000 to 12000 Celsius. The pieces are thereafter removed from the furnace and passed through various Re-Rolling Mill stands so as to manufacture angled flats, squares and round bars etc therefrom. It has filed its return of income on 30.09.2012 declaring total income of Rs.30,82,260/- The case was selected for scrutiny on 10.09.2013 u/s.143(3) of the Act. It appears from the Audited Reports that there was a turnover of Rs.30,92,15,869/- and the gross profit was of Rs.1,38,46,108/- which is 4.48% of the turnover. A show cause notice was issued on 12.03.2015 as to why the appellant’s loss claimed in excess should not be disallowed in the absence to any details furnished by the assessee. The relevant facts as appeared from the said show cause notice it this that by and under a letter dated 02.03.2015 the assessee was called for details of stock and production of furnished goods in the prescribed format which was failed to be furnished by the assessee; neither, information relating to burning loss and details of melting scraps could be finished. In the said show cause notice, the AO also relied upon the judgment passed by the Hon’ble High Court of Allahabad in the case of Mohan Steels where the burning loss at the rate of 2.5% as allowed by the AO was said to be justified.
In reply to the said show cause notice the assessee submitted as follows:
a. ‘’…Various other entities have shown higher burning losses which have been accepted by the department. b. The order for AY 2010-11 by the C1T(A) has dealt this issue and is in assessee's favour.
c. The AO cannot act on whims and conjectures/The reports cited by the AO cannot form the basis for addition.
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 4 d. Judgments have been cited to this effect that books could not be rejected on account of low profits. e. The paper book filed for AY 2010-11 may be relied upon…’’
While dealing with the assessment proceeding the AO also relied upon the accounting standard as notified u/s.145(2) of the Act vide memo No.9949 (F No.132/7/95 dated 25.01.1996, ultimately with the following observation burning loss has been estimated at 2% of the total input of the raw material. Excessive claim of burning loss has been computed at 5.19% of total consumption of raw material being 477.06 MT value of which was calculated at Rs.1,84,38,444/- which was ultimately held to be undisclosed income of the assessee during the year under consideration and added to the total income of assessee’s firm.
‘’...In the instant case, it appears that the assessee has tried to present its accounts in such a way that over-all wastage in terms of percentage will conform to comparable cases, without actually recording the losses at various stages and of different types. In fact, plain reading of above notification in conjunction with discussion made elsewhere in the body of the order clearly present the case that the assessee's accounting of burning loss and other losses is not reliable.
7.5. A business turnover can be under-taxation or can escape taxation. The definition of assessment has not been provided with the IT Act, but a perusal of the term within the scope of the Act makes it obvious that it implies an investigation and ascertainment of the correctness of the returns and accounts filed by the Assessee. Essentially the assessment would evidently mean determination of the quantum of taxable turnover and also the quantum of taxable amount payable by the tax payer. Under these circumstances, and
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 5 detailed discussion made herein above and the adverse observations wherein substantial defects have been pointed out in the data made available by the assessee it would be fair to reach a conclusion that assessee ‘s books of account are not free from substantial defects and even though the same are not presented for verification it do not reflects the true state of affairs of the business run by the assessee. In view of the same, the trading account results of the assessee are hereby rejected under section 3 to the sec. 145 of the Act…’’
In appeal Ld.CIT (A) considered the comparative chart of turnover and GP percentage for immediate preceding three years. G.P addition for Assessment Year 2012-13 has been computed at Rs.5,25,667/-. The said amount of Rs.5,25,667/- has been confirmed by the Ld.CIT(A) and the balance amount of Rs.1,79,12,777/- has been deleted with the following observation:
‘’...Hence the comparative chart of turnover and GP for immediate preceding three years is I being considered which is as under:-
A.Y. Turnover G.P. 2014-15 28,89,00,000/- 4.65% 2013-14 31 ,72,27 ,955/- 4.60% 2012-13 30, 92,15, 869/- 4.48% As already mentioned that the GP ratio is on decline and the same has become negative in A.Y.2015-16, therefore, the latest profitable assessment year i.e. 2014-15 is taken as standard GP to compute the GP addition. If the standard GP at 4.65% is accepted then the GP addition for A.Y.2012-13 and A.Y.2013- 14 is computed at Rs.5,25,667/- and Rs.1,58,614/- respectively. Hence it is considered quite fair and reasonable to compute the GP addition for
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 6 A.Y.2012-13 at Rs.5,25,667/-. As all the expenditure has already been accounted while computing the basic GP percentage of 4.48, no further deduction for any expenses can be given. Consequently the addition of Rs.1,79,12,777/- is hereby deleted and addition of Rs.5,25,667/- is hereby confirmed. The ground No.2 is partly allowed…’’
At the time of hearing of the instant appeal the Ld.represestative of the Revenue made his submission on the basis of the order passed by the AO relying upon the judgment passed by the Hon’ble High Court of Allahabad in the case of Mohan Steels.
On the other hand Ld. counsel appearing for the assessee relied upon the written submission made before the Ld.CIT (A) which is part of the paper book before us. In addition to that he has also furnished the copy of the order passed by the Co-ordinate Bench in ITA No.3065/Ahd/2014/2014 with CO.No.309/Ahd/32014 for Assessment Year 2010-11 where the assessee was granted full relief.
We have heard the respective parties and perused the relevant material available on record. It appears that the business activities so carried out by the said Mohan Steels was manufacturing of Stainless Steel products is different from that of the assessee before us.
9.1 The assessee manually is running a small scale re-rolling mill with the help of old and used plates obtained from ship breaking industry whereas Mohan Steel is operating altogether on a different scale, having a completely different product, raw material and technological set up, the comparison therefore fails on this aspect
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 7
9.2 The judgment passed by the Ld. ITAT on the basis of technical report prepared by Mr. Smith was challenged by the Revenue before the Hon’ble High Court. In fact the matter was remanded to the ITAT for fresh adjudication of the matter in accordance with Law with the following observations:
‘’…The Commissioner of Income Tax (Appeals) had taken into consideration various factors while accepting the burning loss shown by the appellant which in our considered opinion the Tribunal had failed to advert into. We are, therefore, left with no other option except to set aside the order of the Tribunal and remand the matter for determining the issue afresh in accordance with law…’’
We find no clear finding on the part of the High Court on the merit of the matter.
9.3 We have also perused the order passed by the Co-ordinate Bench in assessee’s own case for Assessment Year 2010-11 where following observations were made while allowing the appeal preferred by the assessee.
‘’…6. We have gone through the relevant record and impugned order. As we can see, assessee had supplied all the relevant details to the lower authorities such as register which are subject to regular check and subject to audit, Raw material Register, production register and audited books of account with tax audit report and there was specific defect was found by the Id. A.O. Therefore, in our considered opinion, Id. CIT(A) has rightly deleted the addition of Rs.1,33,02,075/-. Therefore, we do not want to interfere in the order passed by the Id. CIT(A)…’’
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 8 9.4 We find that the Ld.CIT(A) in appeal though upheld the AO’s view in not considering the order passed by his predecessor in respect of A.Y. 2010-11 in appeal in deleting the addition simply on the ratio of non-applicability of principle of res-judicata as held by the Hon’ble Madras High Court we however, cannot ignore the same since the Appellate Order was confirmed by the Co-ordinate Bench on 12.12.2018. However, we appreciate the trouble taken by the Ld.CIT(A) in the impugned judgment is adopting the rational method by taking the latest profitable Assessment Year 2014-15 as standard GP to compute GP addition for the reason so narrated at para 5.13 which is as follows:
5.13 As can be seen above, I have upheld the rejection of books of account u/s. 145(3) of IT Act, 1961. The arguments of AO have rationale but have been critically analyzed. The addition can't be sustained to the extent it is done in assessment order. Therefore, a rational method to uphold the addition has to be carved out from the facts and figures record. An attempt is being made to make GP addition. The GP ratio is on decline and the same has become negative in A.Y.2015-16, therefore, the GP ratio for A.Y. 2015-16 is ignored. The year earlier than A.Y.2012-13 are also decided not to be considered for benchmarking as it would create non-scientific results in a case where the GP ratio is on decline year after year and finally became negative in A.Y.2015- 16. Hence the comparative chart of turnover and GP for immediate preceding three years is being considered which is as under:
A.Y. Turnover G.P. 2014-15 28, 89,00, OOO/- 4.65%
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 9 2013-14 31, 72,27, 955/- 4.60% 2012-13 30, 92,15, 869/- 4.48% As already mentioned that the GP ratio is on decline and the same has become negative in A.Y.2015-16, therefore, the latest profitable assessment year i.e. 2014-15 is taken as standard GP to compute the GP addition. If the standard GP at 4.65% is accepted then the GP addition for A.Y.2012-13 and A.Y.2013- 14 is computed at Rs.5,25,667/- and Rs.1,58,614/- respectively. Hence it is considered quite fair and reasonable to compute the GP addition for A.Y.2012-13 at Rs.5,25,667/-. As all the expenditure has already been accounted while computing the basic GP percentage of 4.48, no further deduction for any expenses can be given. Consequently the addition of Rs.1,79,12,777/- is hereby deleted and addition of Rs.5,25,667/- is hereby confirmed. The ground No.2 is partly allowed.
We find no infirmity in the same and thus the same is confirmed
9.5 In the result, the appeal of the Revenue in ITA no.2600/Ahd/2016 for Assessment Year 2012-13 is dismissed.
Now coming to the Cross objection bearing No.210/Ahd/2016 for Assessment Year 2012-13, we note that at the time of hearing of the appeal the Ld. representative of the assessee did not press the grounds of appeal preferred before us. Hence the appeal is dismissed as not pressed.
Since in ITA No.2601/Ahd/2016 for Assessment Year 2013-14 the identical issue involved, in the absence of any change circumstances the view taken in ITA No.2600/Ahd/2016 for Assessment Year 2012-13 shall apply mutatis mutandis. Hence this appeal of the Revenue is also dismissed.
ITA Nos.2600-2601/Ahd/2016 with C.O.Nos. 210-211/Ahd/2016 A.Ys.2012-2013 & 2013-14. 10
Now coming to the Cross objection bearing No.211/Ahd/2016 for Assessment Year 2013-14, we note that at the time of hearing of the appeal the Ld. representative of the assessee did not press the grounds of appeal preferred before us. Hence the appeal is dismissed as not pressed.
In the combined result the appeals as well as Cross Objection both are dismissed.
Order pronounced in the Court on 23/01/2019 at Ahmedabad.
-Sd- -Sd- (AMARJIT SINGH) (Ms MADHUMITA ROY) ACCOUTANT MEMBER JUDICIAL MEMBER (True Copy Ahmedabad; Dated 23/01/2019 Manish आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण / DR, ITAT, 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad