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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 1045/JP/2016
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; ikWy jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 1045/JP/2016 fu/kZkj.k o"kZ@Assessment Years : 2013-14 cuke The Asst. Commissioner of M/s Creative Projects and Vs. Income Tax Central Circle-2, Contracts P. Ltd. 10, J.L.N. Jaipur Marg, Ganesh Colony, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABCC6585C vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksj ls@ Revenue by : Shri Varindra Mehta (CIT) fu/kZkfjrh dh vksj ls@ Assessee by : Shri N. S. Vyas (FCA) lquokbZ dh rkjh[k@ Date of Hearing : 01/03/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 08/03/2018 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the Revenue against the order of ld. CIT(A)-4, Jaipur dated 15.09.2016 for Assessment Year 2013-14 wherein the following grounds of appeal are taken:- ’’ 1. Whether on the facts and in the circumstances of the case, the CIT(A) was right in deleting the addition of Rs. 1,62,08,415/- on account of undisclosed profit from the firm ignoring the fact that assessee himself stated in his statements recorded on oath u/s 132(4) of the Act that it was undisclosed income.
2 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur 2. Whether on the facts and in the circumstances of the case the CIT(A) was right in deleting the addition of Rs. 2,26,558/- made u/s 36(1)(va) of the Act (i.e. PF addition) without appreciating the fact that it was made as per provisions of section 36(1)(va) of the Act, 1961.”
Regarding ground No. 1 of revenue’s appeal, briefly stated, the facts of the case are that a search and seizure operation u/s 132 was conducted at the assessee’s premises on 10.10.2012 wherein director of the assessee company has admitted undisclosed income of Rs. 4,50,56,690/- for the FY 2012-13 which includes bogus expenditure of Rs. 1,00,56,690/-, cessation of unclaimed liability of Rs. 50 lacs and estimated income of the company for the year ending 31st March, 2013 amounting to Rs. 3 crore. Thereafter, the assessee filed an affidavit on 13.12.2012 wherein the disclosure so made during the course of search was reworked out at Rs. 4,50,20,389/- as against the original figure of Rs 4,50,56,690, detail breakup of which is as under:- Undisclosed income Rs. 1,25,00,000/- Cessation of liability Rs. 25,20,389/- Estimated business income Rs. 3,00,00,000/- Total Rs. 4,50,20,389/-
Thereafter, pursuant to notice u/s 153A of the Act, assessee filed its return of income declaring total income at Rs. 2,88,11,970/- on 30.09.2013 wherein the profit from business operations has been shown at Rs 1,37,91,585, other income of Rs. 1,25,00,000/- and
3 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur sundry balances written off amounting to Rs. 25,20,389/-. There is no dispute regarding the other income and sundry balances written off.
The only dispute relates to profit from business operations where the assessee has disclosed profits from business operations at Rs. 1,37,91,585/- in its return of income as against Rs 3 crore as per the statement u/s 132(4) recorded at the time of search. The AO did not agree to the assessee’s contention that what was disclosed at the time of search was the estimated profits of the year and not the actual profit and he therefore held that the assessee didn’t honour the surrender made by him at the time of search and took the profit from business operation at Rs. 3 crore instead of 1,37,91,585/- declared by the assessee and made an addition of Rs. 16,20,84,15/-.
Being aggrieved, the assessee carried the matter in appeal before ld. CIT(A) and submitted that during the course of search and seizure operations, the director of the assessee company has given a statement that estimated total turnover the company will be Rs. 35 crores on which the estimated profit will be 3 crores. It was submitted that the search was carried out on 10.10.2012 which was the mid of the financial year and it was purely on estimated basis that the total business profit of the company will be of Rs. 3 crores. It was submitted that it is practically not possible to project the exact profit in the mid year. Further, drawing reference to the turnover and profit trend for the last 6 years, it was submitted that there are no major changes in the profit declared by the company in its return of income as compared to earlier years. It was further submitted that the assessee company is
4 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur maintaining regular books of accounts and the AO has nowhere questioned the authenticity of the books of accounts or has pointed out any discrepancy/deficiency in the same but has rejected the book results out rightly without assigning any reason. It was further submitted that even if the provisions of section 44AD are taken into consideration for working out the profits of the assessee company on presumptive basis, which was the basis for asking the assessee company to disclose the estimated profit of Rs. 3 crores (being 8 % of estimated turnover of Rs. 35 crores this fact was recorded in the statement given at the time of search) as the company is in the business of civil construction, than after allowing credit for the depreciation, remuneration paid to the Directors and interest paid, the profits comes to Rs. 89,20,429/-. It was accordingly submitted that if the provisions of section 44AD are taken into consideration, the revised taxable income will come to Rs. 2,39,40,818/- as against the returned income of Rs. 2,88,11,970/-. It was accordingly submitted that the returned income, being on the higher side should be accepted and the addition made by the Assessing Officer should be deleted.
After taking into consideration, the statement recorded u/s 132(4) during the course of search, the subsequent affidavit filed by the assessee, the findings of the Assessing Officer as well as submission of the assessee including alternate determination of income u/s 44AD, the ld CIT(A) has directed the AO to take profit from operations at Rs. 1,37,91,585/- and the addition of Rs. 1,62,08,415/- was directed to be deleted.
5 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur 6. The Revenue is now in appeal before us. The ld. DR is heard who has relied on the statement recorded by the director of the assessee u/s 132(4) at the time of search, subsequent affidavit dated 13.12.2012 and the order of the Assessing Officer. The ld. AR is also heard who has relied on the findings of the ld. CIT(A) and reiterated the submissions made before him.
We have heard the rival submissions and perused the material available on record. In this case, search and seizure operations were conducted u/s 132 of the Act on 10.10.2012. The limited dispute relates to determination of quantum of business of income of the assessee company for the year ended 31st March, 2013 as per statement recorded u/s 132(4) of the Shri Girdhari Singh Shekhawat, the director of the assessee company at the time of search and what has been subsequently reported by the assessee company in the return of income filed pursuant to issuance of notice u/s 153A of the Act.
In this regard, it would be relevant to refer to the statement of Shri Girdhari Singh Shekhawat recorded u/s 132(4) on 10.10.2012 during the course of search and seizure operations wherein question Nos. 10 and 11 are relevant which are reproduced as under:-
’’Ikz”u%&10 pkyw fofŸk; o’kZ 2012&13 ds 6 ekg ls vf/kd xqtj pwds gSa ,oe vkids mDr c;ku ds fglkc ls bl o’kZ vkids ikl Project Hkh T;knk gS d`Ik;k crk;sa fd pkyw fofŸk; o’kZ esa vkidksa Gross Business Receipts yxHkx fdruh gksxh ,oe vkidks dqy dj ;ksX; vk; fdruh gksxh] vHkh rd vkius fdruk Advance Tax dk Hkqxrku fd;k gSA
6 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur mŸkj esjs O;olk; ds izd`fr ,oe fiNys o’kkZs dh rqyukRed Gross receipts dks ns[krs gq,s eSa ;g Li’V vuqeku dj ldrk gwWa fd pkyw fofŸk; o’kZ esa esjs O;olk; dh dqy izkfIr;ka 35 djksM+ :Ik;s ls vf/kd gh gksxh O;olk; ds foLrkj ,oe Net Profit rate dks n`"Vhxkspj djrs gq,s eSa ;g ekurk gwa fd esjh O;olk; ls fu;fer vk; Rs. 3 djksM+ ds vklikl gksuh pkfg;s vHkh rd eSus Advance Tax blfy;s ugha fn;k gS D;ksfd eq>s izkIr gksus okyh lkjh receipts contracts receipts gksrh gS ,oe bu ij L=ksr ij dj dh dVkSrh ¼TDS½ gks tkrh gSA
vkids mijksDr c;ku ds lanHkZ esa pkj fofŸk; o’kZ 2012&13 ds fy;s vkidh Company M/S C.P.C.P.C dh dqy dj ;ksX; o vk; fuEu izdkj work out dh tkrh gSaA fofHkUu enksa esa [kpsZ ftudk lR;kiu ugh gks ik;k Rs. 10056690@& (reference iz”u 6½ Cesscession of unclaimed liability (referemce iz”u 8) Rs. 50]00]000@& Business Income Rs. 3]00]00]000@& Rs 4]50]56]690@& d`i;k crk;sa fd vki bl vk; ij fdl izdkj dj dk Hkqxrku djsaxsa vkidks vius mijksDr c;ku ds lanHkZ esa vU; dqN Hkh dguk gks rks crk;sA
mŸkj%& eSus viuk mijksDr iwjk c;ku i<dj le> dj fn;k gS dj ds Hkqxrku ds lEcU/k esa esjk ;s fuosnu gS fd eq>s izkIr gksus okyh Business Receipts ij igys ls gh TDS gks tkrk gS vr% esjk vf/kdka”k dj nkf;Ro TDS ds ek/;e ls gh iwjk gks tk;sxk eSus tks vfofLFkr vk; ?kksf’kr dh gS ml ij fu;ekuqlkj dj dks x.kuk djds mles ls TDS dks Setoff nsus ds ckn tks dj nkf;Ro “ks’k cpsxk ml ij esa nks fd”rks esa ¼Dec. 2012 ,oe ekpZ 2013½ fu;ekuqlkj vfxze dj dk Hkqxrku dj nwaxkA eSus mDr c;ku iwoZ gks”kksgokl LoLFkfpŸk] fcuk fdlh ncko ds fn;s gSA tks fcYdqy lR; gSA eSus dksbZ rF; ugh fNik;k gSaA eSus c;ku dks i<+dj le> dj gLrk{kj fd;s gSA”
On reading of the above statement recorded u/s 132(1) at the time of search, the assessee has stated that the estimated turnover of the company would be around Rs 35 Crores and estimated net profit would be around Rs 3 crores. Regarding payment of taxes on such
7 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur profits, the assessee in his statement u/s 132(4) has submitted that he has not deposited advance tax as all his receipts are contractual receipts which are subject to TDS and the final tax liability will also be largely taken care of by way of TDS and no commitment was made to deposit any additional taxes.
If we look at the profit and loss account prepared for the year ended 31st March, 2013, the assessee has shown revenue from operations at Rs. 36,63,69,031/- and net profit of Rs. 2,98,34,341/- which prima facie matches with the statement so made by the assessee at the time of search. However, on closer scrutiny of the profit/loss account, it is noted that besides gross receipts of Rs 36,63,69,031/-, the assessee has also credited its profit/loss account with other income of Rs. 1.25 crores and sundry balances written of Rs. 25,20,389/- which have been disclosed and surrendered during the course of search which have contributed to the net profit of Rs. 2,98,34,341/-. If we were to exclude these two items, net profit would come down to Rs 1,48,13,952 as against Rs 3 crores stated earlier by the assessee. In our understanding, the disclosure and surrender made by the assessee of Rs 1,50,20,389 is independent and separate from the determination of net profit of the business and the same cannot be clubbed as has been done by the assessee company.
Further, regarding determination of estimated turnover and net profit, on close reading of the statement recorded u/s 132(4), what has been stated by the director of the assessee company is his estimatation of the expected turnover for the whole of the financial year which is yet
8 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur to see a closure and expected net profit from its business operations for the whole of the year. It is not a case where any incriminating material and documents were found over and above what has been disclosed in the books of accounts as on the date of search. In our view, it is not really a surrender of income over and above the regular business income, a fact which is also clear from the fact that the assessee has denied depositing any taxes by way of advance tax in the past or any inclination to deposit any taxes in the future as the tax liability thereof is largely covered by TDS on the contractual receipts.
Now, coming to the findings of the AO that the assessee has not honoured his commitment made at the time of search is partially correct in the sense that though the assessee has achieved, rather exceeded the targeted turnover of Rs 35 Crores but at the same time, the net profit has been disclosed at Rs 1,48,13,952 as against Rs 3 crores stated earlier by the assessee. In such a case, the course available with the AO was to examine the books of accounts of the assessee and determine any discrepancy therein and determine appropriate profits which can be brought to tax. However, in the instant case, there are no such findings given by the AO and in absence thereof, the book results have to be accepted.
In light of above discussions, we therefore upheld the order of the ld CIT(A) and the ground raised by the Revenue is dismissed. The addition so made by the AO is deleted and the returned income filed by the assessee company is hereby directed to be accepted.
9 ITA No. 1045/JP/2016 ACIT, Jaipur vs. M/s Creative Projects and Contracts Pvt. Ltd., Jaipur In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open Court on 08/03/2018.
Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 08/03/2018 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- ACIT, Jaipur 2. izR;FkhZ@ The Respondent- M/s Creative Projects and Contracts P. Ltd., Jaipur 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { ITA No. 1045/JP/2016} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत