KOMAL YARN INDUSTRIES PVT.LTD.,SURAT vs. THE INCOME TAX OFFICER,WARD-1(3),, SURAT

आदेश /O R D E R PER O P MEENA, AM: 1. This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals)-1, Surat [in short “the ld. CIT(A)”] dated 05.02.2013 for pertaining to the assessment year 2009-10. 2. Ground No.1 and 2 are related to confirming of rejecting of book result and making addition and sustaining addition of Rs.29,44,676/- by estimating gross profits in post survey period at 12.69%. Since, the above grounds of appeal are in connected hence same are being considered together. 3. Brief facts of the cases are that the survey u/s.133A of the Act was carried out on 02.09.2008, wherein unaccounted stock of yarn of Rs.18,95,000/- and unexplained cash deposits in bank account of Rs.11,05,000/- were detected which were accepted by the assessee as his undisclosed income. However, in the return of income, the assessee has

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 2 of 9 shown taxable income of Rs.4,20,430/-. The AO re-casted the trading account of the appellant in pre survey and post survey periods at Page no. 4 & 5 of the assessment order. The AO was of the view that gross profit and pre-survey related period was Rs.12.69% while the Post-Survey period it was 9.46%. The gross profit on Post-Survey period after exclusion of undisclosed income comes to 3.65% only as against the gross profit of 12.69% in the Pre-Survey period. Thus, there was a fall of gross profit by 9.04% which according to AO, the assessee has made an attempt to neutralize the effect of declaration made during the survey. The AO further observed that the assessee has also not maintained day to day stock register and has also not maintained production register. Therefore, stock records and production and consumption details are not reliable and verifiable. Further, the letters issued u/s.133(6) to the 10 parties only four parties have replied, even though sufficient opportunity of being heard was allowed. The AO also noted that there was a short fall in the sale by 31% but there was hardly any decrease in manufacturing expenses though the consumption of raw material in manufacturing has been reduced by 30%. If the disclosure of Rs.30,00,000/- excluded from P&L Account then there will be net Rs.30,00,000/- which clearly shows that this is a class in relation of accounts. 4. The assessee has indulged unaccounted business transaction on the basis of which it has admitted undisclosed of Rs.30,00,000/- during the survey. In view of these facts the AO rejected the books of account u/s.145(3) of the Act and the AO applying the profit rate of 10% the

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 3 of 9 amount of current reserve profit was estimated was Rs.65,41,670/- of the turn over of Rs.6,54,16,705/-. The AO also made addition on account of unexplained cash deposit of Rs.11,05,000/- admitted during survey and unexplained stock of Rs.18,95,000/- admitted during the course of survey. 5. Being aggrieved, the assessee carried the matter before ld. CIT(A). During the course of appellate proceedings, the matter was remanded to the AO for his comments on remand’s report. The AO vide remand report dated 21.09.2012 submitted that the assessee has submitted confirmation of fourteen purchase parties and no adverse influence is drawn. However, the then AO never specifically ask for production of stock register day to day and stock register. With regard to non-production of bills/vouchers of purchases/expenses, the AO observed in his remand report that the appellant produced bills/ vouchers vide questionnaire dated 05.09.2011 and 29.06.2011 respectively asked to produce, however the same was not produced. On the contrary, the appellant stated in its letter dated 06.07.2011 that sales register, purchase register, cash book, bank book, and ledger account have been verified by the auditors. However, stock register is not mentioned in the list. Therefore, the CIT(A) has also allowed an aforesaid stock register, further only month-wise statement of stock was produced before the AO. The production register as well as day to day stock register were not produced which were one of the reasons for rejection of books of accounts. However, non-receipt of replies from fourteen parties does not survive but the facts remains that no day to day stock register and the production register have been produced, during the remand

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 4 of 9 proceedings. The appellant was obliged to produce to produce stock register/production register in remand proceedings. Therefore, this facts coupled with decrease in trading results i.e. return income of only Rs.4,20,430/- against the declaration of Rs.30,00,000/- detected in the form of evidence of unaccounted income reflected as deposits in bank account and unaccounted stock, the trading results of the appellant do not inspire confidence of the remand. Further, the assessee has failed to produce the stock register and production register during the remand proceedings which leads the situation where the consumption and production cannot be verified. The Ld. CIT(A) by placing reliance on the decision of ITAT in the case of M/s. Whiteline Chemicals Vs. ITO, Ward- 2(1), Surat in ITA No.3509/AHD/2004 for A.Y. 2001-02 in order dated 30.08.2005 upheld books result of the appellant that books are not reliable. Further, with regard to estimate of profit at Rs.65,41,670/-. The CIT(A) observed that the said addition is on a higher side, considering the nature of business of the appellant, which is manufacturing of texturized yarn and there is substantial increase in financial charges as compared to A.Y. 2008- 09. As pointed out by the AO the sales in post survey period are Rs.3,25,72,550/- and the GP disclosed is Rs.30,83,474/- which is 9.46% after excluding survey declaration of stock of Rs.18,94,695/- which is actually unaccounted income of pre-survey period, the GP from falls to Rs.11,88,781/- i.e. 3.65%. This means fall in GP from pre-survey period is to the extent of 9.04% while the turnover in pre and post survey period are almost equal. Therefore, considering the fair and reasonable, if GP

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 5 of 9 excluding stock declared for post survey period is estimated at 12.69% only that at Rs.41,33,457/- against the disclosed GP of Rs.11,88,781/-. Accordingly, balance defence of Rs.29,44,676/- was upheld as against the returned income of Rs.4,20,413/-.However, the CIT(A) observed that the AO has made addition of Rs.65,41,670/- being profit and addition of Rs.11,05,000/- and Rs.18,95,000/- making the total figure of Rs.95,41,670/-. The CIT(A) observed that there is these additions have not been made twice as discussed supra. These grounds of appeal are dismissed. However, there will be no separate addition for these amounts while giving appeal effect for the reason that the computation will now start from returned income of Rs.4,20,413/- and GP addition of Rs.29,44,676/-, though the CIT(A) has allowed for the GP addition. 6. Being aggrieved, the assessee has filed an appeal before this Tribunal. The ld. counsel for the assessee has submitted that total unaccounted income admitted during the survey on account of excess stock of Rs.18.94 lacs and cash deposits of Rs.11.05 lacs have duly entered in the books of accounts which have been reflected at page 25 of paper book and in the P&L Account at page 13. The AO has rejected the books of accounts on the ground that stock register was not maintained, production register was not maintained and the confirmation sought by the AO came back as not served from 10 out of 14 parties and bills, vouchers were not producedfor verification. Further, before the remand proceedings, it was submitted that the AO never sought stock/production register nor never informed the assessee that confirmations were being sought from 10 out of 14 parties.

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 6 of 9 Therefore, the premises of rejection itself diminishes and thus no estimation can sustain. The ld. CIT(A) confirmed rejection on the ground that the assessee produced only monthly summaries during the remand proceedings in respect of the stock and income disclosed in survey is excluded, it results in loss. However, the ld. CIT(A) has altered the basis from addition of unexplained inventories to estimating GP of pre-survey and post survey period. Thus, he marginally reduced the addition from Rs.30,00,000/- to Rs.29,44,676. The ld. counsel contended that the assessee has maintained date wise stock register and production register and purchase register which were submitted to the AO vide letter dated 04.08.2012. These details are furnished at paper book 15 to 24, 64 to 96 and 26 to 28, therefore the rejection of books of accounts by the ld. CIT(A) do not justified though the assessee has submitted only monthly summaries whereas they were day-wise particulars. Further, no defects were pointed out by the lower authorities, when there is no leakage of books of account cannot be rejected. 7. The ld. counsel further submitted that the reasons for fall in Gross Profit rate was due to reduction of turnover from 9.49 crore to 6.54 crore from previous year. Similarly, the expenses for also gone down and there is decrease of 30% in administrative expenses and manufacturing expenses whereas the AO has not pointed out any defects, therefore the ld. CIT(A) was not justified supported addition of Rs.29.49 lacs. The ld. counsel further submitted his views by placing reliance on his return in the case of CIT vs. Anand Kumar Deepak Kumar [2007] 160 TAXMAN 206 (DELHI) and

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 7 of 9 wherein it was held that merely because there were some discrepancies in pre-search period, it could not lead to any presumption that discrepancies would have continued in post-search period, particularly when AO could not find any defect in books of account relevant to post-search period. Therefore, the rejection of books of account by the AO for post-search period was not warranted. The ld. counsel further placing reliance in the case of CIT vs. Bindals Apparels [2011] 332 ITR 410 (DELHI), wherein it was observed that non-maintenance of day-to-day stock register is not a reason to reject books as no adverse comment regarding books produced before AO, therefore the lower gross profit rate in period subsequent to survey due to huge discounts on merchandise, hence, gross profit rate disclosed by assessee reasonable. 8. Per contra, the ld. Departmental Representative (DR) supported the order of the ld. CIT(A) and submitted that the CIT(A) has duly observed that no day-to-day stock register and the production register are maintained, therefore the assessee obliged to produce the stock register has mentioned by the CIT(A) in Para8.5 of his order, hence the ld. CIT(A) was justified to applying the GP rate as there was drastic fall in GP rate. 9. We have heard the rival submissions and perused the material available on record. We find that during the course of survey proceedings undisclosed income of Rs.30,00,000/- was admitted on account of stock and cash deposits. However, the assessee has returned income at Rs.4.02 lacs only. The AO noticed that GP of pre-survey period was 12.69% while course of post-survey period, it was 9.49% and if undisclosed income of

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 8 of 9 Rs.30,00,000/- is excluded then GP comes to 3.65% only which has been done to neutralize the effect of the disclosure made during the course of survey. According to AO, the assessee has not produced bills/vouchers day-to-day stock register and production register and there was fall in GP rate which is books of account were rejected u/s.145(3) of the Act. However, during the course of remand proceedings before CIT(A) the assessee has complied some defects pointed out by the AO, however still fail to provide stock register and production of day-to-day stock register. Further, the disclosure amount is excluded than there was a loss of Rs.26.53 lacs as against which there was sales increase of financial charges whereas the consumption of raw material was reduced to 30% but corresponding manufacturing expenses does not increase in the same proportion. Therefore, ld. CIT(A) relying on the decision of the ITAT in the case of M/s. Whitelines Chemicals vs. ITO (supra) has confirmed the rejection of books of account. In view of these facts, we are in agreement with CIT(A) that the rejection of books of account is justified, as in spite of specifically requirement made during the course of remand proceedings, the assessee could not produce the stock register and production register nor the assessee has able to justify the fall in GP rate in comparison to pre- survey period and preceding years also. We find that the GP disclose during the post-survey period is at Rs.30,83,474/- on sales of Rs.3,25,72,550/- which comes to 9.46% whereas GP during a pre-survey period is 12.69% and GP for A.Y. 2007-08 is 10.09% and A.Y. 2008-09 is 10.00%. Therefore, it would be reasonable and fair and just to estimate the average GP rate

Komal Yarn Industries Private Limited v. ITO, Ward-1(3), Surat/ITA No.1027/AHD/2013/A.Y. 2009-10 Page 9 of 9 from assessment year 2007-08 to pre-survey period which comes to 9.31% (10+79+10+12.69+9.46+3.65), therefore it would be met the end of justice if the GP rate is 9.35% is applied to post-survey sales amounting to Rs.3,25,72,550/- which work out to Rs.30,32,504/-. Therefore, the income of the assessee to this extent is sustained which inter-alia includes the returned of income of Rs.4,20,413/- and including the disclosure made during survey. In view of this total income of the assessee determining at Rs.30,32,504/- as against Rs.33,65,089/- determined by the CIT(A). In view of this fact, these above grounds of appeal are partly allowed in favour of the assessee. 10. In the result, the appeal filed by the assessee is partly allowed. 11. The order pronounced in the open court on 03.10.2019

Sd/- Sd/- (AMARJIT SINGH) (O.P.MEENA) (JUDICIAL MEMBER) ACCOUNTANT MEMBER सुरत/ Surat, �दनांक Dated: 3rd October, 2019/S. Samanta, PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat