Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI WASEEM AHMED
आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण अहमदाबाद �यायपीठ अहमदाबाद �यायपीठ ‘बी’ अहमदाबाद। अहमदाबाद �यायपीठ अहमदाबाद। अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ ITA No. 1350/Ahd/2016 �नधा�रण वष�/Assessment Year: 2011-12 Smt. Kamini J. Patel, Vs. ITO, 65, Manisha Society, Ward – 2(3), Old Padra Road, Baroda. Baroda – 380 020 PAN No. AKBPP 6312 M अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Assessee by : Shri M. S. Chhajed, A.R. Revenue by : Shri Mudit Nagpal, Sr. D.R. सुनवाई क� तार�ख/Date of Hearing : 01.08.2018 घोषणा क� तार�ख /Date of Pronouncement : 08.10.2018 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the appellate order of the learned Commissioner of Income-Tax (Appeals)-5 Vadodara [“CIT(A)” in short] relevant to Assessment Year 2011-12. 2. Assessee has raised the following grounds of appeal:- “1. The order passed by the Ld. CIT(A) is against the law, equity and justice. 2 The Ld. CIT(A) has erred in law and on facts in upholding the adhoc disallowance of expenses made by the Ld. A.O of Rs. 10,53,798/- 3 The Ld. CIT(A) has erred in law and on facts in upholding the addition for unaccounted interest made by the Ld. A.O of Rs.63,922/-. 4 The Ld. CIT(A) has erred in law and on facts in upholding the addition for Agriculture income made by the Ld. A.O of Rs.348880/-. 5 The appellant craves liberty to add, amend, alter or modify all or any grounds of appeal before final appeal.”
2 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
The first issue raised by the assessee is that ld CIT(A) erred in upholding the ad-hoc disallowances of expenses for Rs. 10,53,798/-.
Briefly stated facts are that the assessee in the present case is an individual and engaged in the manufacturing business of ice under the name and style of M/s. Yogi Industries. The assessee in the year under consideration has claimed total business expenses of Rs. 1,05,37,981/- against the total turnover of Rs. 1,13,08,440/- only. On question by the AO for the production of books of accounts, the assessee claimed that these have been misplaced and therefore the same cannot be produced for the purpose of verification.
4.1 The assessee further submitted that the books of accounts were audited u/s 44AB of the Act and the auditor has not made any disallowances. Thus, it evidences that all the expenses were incurred exclusively for the purpose of the business.
However, the AO disagreed with the submission of the assessee and held that genuineness of the expenses cannot be relied upon in the absence of books of accounts and supporting evidences. Accordingly, the AO made disallowance of the expenses @10% of all the expenses on ad-hoc basis. Hence, the AO made the disallowance of Rs. 10,53,798/- and added to the total income of the assessee.
Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted that almost similar expenses were incurred in the immediate preceding year i.e. A.Y. 2010-11 and there was no disallowance in respect of such expenses. The assessee in support of his claim filed a comparative chart of the expenses as extracted below:
3 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
Particulars 2010-11 2009-10 Purchase 2,48,366.00 2,42,345.00 Electricity Charges 55,62,831.00 57,46,439.00 Consumables Stores 17,59,176.00 16,08,110.00 Labour charges 2,51,714.00 2,34,670.00 Wages 9,60,000.00 9,60,000.00 Repairs & Maintenance 2,09,842.00 1,67,727.00 Total 89,91,929.00 89,59,291.00 Appellant has incurred expenses like bank interest, depreciation, mobile expenses etc in 2 years are as under: Particulars 2010-11 2009-10 Bank charges 3,174.00 5,163.00 Bank Interest 2,24,452.00 1,89,226.00 Depreciation 8,47,795.00 9,71,765.00 Audit Fees 10,000.00 0.00 Total 10,85,421.00 11,66,154.00
5.1 The assessee also claimed that the gross profit as well as net profit has also increased substantially in comparison to the last year.
5.2 The assessee also submitted that no disallowance on ad-hoc basis can be made without comparing the financial data of the last year.
However, the ld. CIT(A) disregarded the contention of the assessee and confirmed the order of the AO by observing as under: “5.3 I have carefully considered the facts and circumstances of the case, the observations of the Assessing Officer, assessees submissions and material available on record. The Assessing Officer has clearly noted in para 5 of the order that the assessee was requested to produce books of accounts and relevant bills and vouchers for verification, which she failed to do on the ground that she had closed the business and had misplaced the books of accounts/ other evidence of expenses He has also clearly noted that most of the expenses were not verifiable In the circumstances, it was impossible to verify whether the expenses were, in fact, incurred wholly for the purposes of the business of the assessee. Assessee's plea that simply because his accounts had been audited u/s 44AB. the expenses
4 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
must be treated as genuine, is not acceptable The Assessing Officer has a right to scrutinize assessee's expenses during assessment proceedings and it is the duty of the assessee to furnish necessary evidence in support of her claims, which she has failed to carry out Since the expenses have been incurred by the assessee the primary onus was on it to furnish evidence that the same were incurred for the purposes its business In the circumstances I have no hesitation in upholding the right of the Assessing Officer to disallow a reasonable portion of the expenses after holding that the same were not incurred for the purposes of the business of the assessee Considering that the assessee has absolutely failed to discharge her onus and had refused to produce any evidence before the Assessing Officer and considering that the disallowance is merely 10% of the total expenses which is fair and reasonable in my view considering the circumstances. I find no reason to interfere with the order of the Assessing Officer Consequently, the order of the Assessing Officer in this regard is upheld and the assesse fails on this ground of appeal.”
Being aggrieved by the order of ld. CIT(A) the assessee is in appeal before us.
The ld. AR before us submitted that disallowance on ad-hoc basis is not permissible under the provisions of law.
On the other hand, ld. DR vehemently supported the order of authorities below.
We have heard the rival contentions and perused the materials available on record. In the instant case, the AO has made the disallowance of all the expenses claimed by the assessee during the year on the ground that no books of accounts and supporting documents were filed by the assessee. As per the AO, the genuineness of the expenses cannot be verified in the absence of books of accounts and documentary evidences. The view taken by the AO was subsequently confirmed by the ld CIT(A).
5 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
8.1 It is very settled law that the disallowance of the expenses cannot be made on the ad-hoc basis without pointing out any defect in the financial statement. But in the case before us the assessee has not produced any books of accounts and supporting documents. Therefore there was no alternate available with the AO to verify the genuineness of the expenses in such circumstances. However, we are of the view that the AO should have referred to the historical data of the assessee to form prima facie opinion that the expenses claimed by the assessee are unreasonable. In the instant case, the assessee has given a comparative chart of the expenses of the current year vis-à-vis of the immediate preceding year before the ld CIT(A). On perusal of the same, we note that the expenses claimed by the assessee were not increased substantially. Therefore it can reasonably be inferred that the expenses claimed by the assessee are within the reasonable limits.
8.2 We also note that there was also not much difference in the turnover reported by the assessee for the current year and the immediate preceding year.
8.3 We also note that the assessee before the ld CIT(A) has claimed that its gross profit and net profit has increased substantially in comparison to the earlier year. However, we note that none of the lower authority has considered these vital facts while making the disallowance @10% of the total expenses.
8.4 We also note that the AO has also made the disallowance of depreciation allowance expenses on ad-hoc basis. It is undisputed facts that the depreciation is not expenditure but an allowance which has to be given to the assessee in accordance with the provisions of law. None of the lower authority has brought on record suggesting that the depreciation claimed by the assessee is not as per
6 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
the provisions of Section 32 of the Act. The AO was in possession of the balance sheet of the assessee for the current year as well as of the previous year. Therefore in our considered view he should have applied his mind for the depreciation allowance claimed by the assessee before disallowing the same on ad-hoc basis. Therefore, we direct the AO that the assessee is entitled for the deduction of full depreciation as per the provisions of law and no disallowance on account of depreciation can be made.
8.5 We also note that the assessee in his submission before the AO has submitted as under: “The books of account of M/s Yogi Industries are audited u/s 44AB of the Act and expenditure incurred was exclusively for the purpose of tne business. You are therefore requested to disallow reasonable amount and oblige."
From the above, it is clear that the assessee herself has offered to make the disallowance on reasonable basis. Thus we feel that the justice shall be served to both the Revenue & the assessee if some reasonable disallowance of the expenses is made. Therefore, we are inclined to restrict the disallowance @5% of the total expenses excluding depreciation claimed by the assessee. Hence, the appeal of the assessee is partly allowed.
The second issue raised by the assessee is that ld CIT(A) erred in confirming the addition of Rs. 63,922/- on account of unaccounted interest.
The assessee during the year has earned interest income of Rs. 63,922/- from Central Bank of India and Madhya Gujarat Vij. Co. Ltd. However, the same was not reflected in the income shown in the income tax return. On question by the AO, the assessee submitted that he has also paid interest
7 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
expenses to Central Bank of India which got adjusted against the interest income therefore no interest income was offered to tax.
However, the AO disagreed with the submission of the assessee on the ground that there was no documentary evidence filed to substantiate her claim. Thus, the AO disallowed a sum of Rs. 63,922/- and added back to the total income of the assessee.
Aggrieved, assessee preferred an appeal to ld. CIT(A). The assessee before the ld CIT(A) submitted that she has earned an interest of Rs. 9929/- from GEB on the amount deposited as security with GEB which was reduced from the electricity Bill generated by GEB. As such, the amount of interest income for Rs. 9929/- was adjusted against the electricity expenses. Accordingly, the assessee claimed less amount of electricity expenses.
However, the ld CIT(A) disregarded the contentions of the assessee and confirmed the order of AO by observing as under: “7.3 I have carefully considered the facts and circumstances of the case, the observations of the Assessing Officer, assessee's submissions and material available on record The assessee's only argument is that interest of Rs.9929/- was adjusted by GEB and his electricity expenditure bill of the subsequent month was reduced to that extent, therefore, it was tax neutral However, no evidence has been submitted by the assessee to establish his explanation No explanation has been filed by the assessee for the remaining interest amount In view of the above. I find no reason to interfere with the order of the AO on this issue.”
Being aggrieved by the order of ld CIT(A) assessee is in appeal before us.
8 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
The ld. AR before us reiterated the submission as made before the ld CIT(A) whereas, the ld DR vehemently supported the order of authorities below.
We have heard the rival contentions and perused the materials available on record. The assessee during the year has earned interest income of Rs. 63922/- from Central Bank of India and Madhya Gujarat Vij. Co. Ltd. amounting to Rs.63922/-. This income was not shown by the assessee in the income tax return on the ground that she has incurred interest expenses as well. However, the claim of the assessee was not based on any tangible material. Therefore, the same was disallowed by the AO. Subsequently, the view taken by the AO was confirmed by the ld CIT(A).
13.1 The above additions was made by the AO and confirmed by the ld CIT(A) on the ground that no evidence was filed by the assessee suggesting that the above interest income has been adjusted against interest expenses as well as electricity Bill generated by GEB. The assessee even during the hearing has not filed any evidence to substantiate the arguments raised before the lower authorities. Therefore, in the absence of any documentary evidence we have no alternate accept to confirm the order of ld CIT(A). Hence, the ground of appeal of the assessee is dismissed.
The last issue raised by the assessee in this appeal is that ld CIT(A) erred in upholding the addition of agriculture income for Rs. 3,48,880/-.
The assessee during the year has shown agricultural income of Rs. 3,48,880/-. The assessee in support of his agriculture income has claimed to
9 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
have filed the details of agricultural land, agricultural income & the bills for the sale of agriculture produced vide letter dated 28.03.2014.
However, the AO during the assessment proceedings observed that there was no documentary evidence filed by the assessee in support of agriculture income. There was also no prove of purchases of seeds, pesticides and insecticide etc. Therefore, the AO disallowed the claim of the assessee being agricultural income and treated the same as income from other sources.
Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted that she is an agriculturist by birth and having agricultural land more than ‘52’ bighas.
16.1 The assessee also claimed that she cultivates seasonal vegetables. The assessee also submitted that she has filed the details of agricultural land and other relevant details in support of agricultural income.
16.2 The assessee also submitted that she has offered agriculture income to the taxable income for the purpose of applying the income tax rate.
However, the ld CIT(A) disregarded the contentions of the assessee and confirmed the order of AO by observing as under: “8.3 I have carefully considered the facts and circumstances of the case, the observations of the Assessing Officer, assessee's submissions and material available on record. Except submitting a few bills for sale of agricultural produce and evidence of ownership of land the assessee has failed to furnish any other evidence to establish that her net income from agricultural operations was Rs. 3,48,880/- as claimed by her She has failed to furnish the details of the persons who worked on her behalf or for that matter details of agricultural expenses incurred by her. She has also failed to establish the nexus between the land.
10 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
agricultural operations and income from agricultural operations It is settled principle of law that it is the assessee who has shown income from agricultural operations and the primary onus is on her to establish the nexus between the land, agricultural operations and income from agricultural operations, which she has failed to do She has failed to furnish any evidence of agricultural operations carried out by her or someone else on her behalf In the circumstances. I am inclined to uphold the order of the Assessing Office in this regard the assessee 0fails on this ground of appeal.”
Being aggrieved by the order of ld. CIT(A) assessee is in appeal before us.
Ld AR before us reiterated the submission as made before the ld CIT(A) whereas, the ld DR vehemently supported the order of Authorities below.
We have heard the rival contentions and perused the materials available on record. In the instant case, the agricultural income of the assessee was treated as income from other sources on the ground that no documentary evidence substantiating the agricultural income was filed during the assessment as well as appellate proceedings. However, on perusal of the submission of the assessee before the AO and ld CIT(A), we note that the assessee has claimed to have filed the relevant details of agricultural land as well as bills for the sale of agricultural produce. Therefore, we note that the finding of the AO and ld CIT(A) is contradictory to the submission of the assessee. Therefore, we find that there is a factual dispute in this ground of appeal of the assessee which requires to be looked into by the AO. Thus, we are sending this ground of appeal to the AO with the direction to make fresh assessment after giving the opportunity of being heard to the assessee as per the provision of law. Thus, the ground of appeal of the assessee is allowed for statistical purposes.
11 ITA No.1350/Ahd/2016 Smt. Kamini J. Patel vs. ITO AY : 2011-12
In the result, appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the Court on _08_ October, 2018 at Ahmedabad.
Sd/- Sd/-
(RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 08/10/2018 Priti Yadav, Sr.PS 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, Vadodara. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad. 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation …12/09/2018 (PAGE-8) 2. Date on which the typed draft is placed before the Dictating Member : .. 03/10/2018 3. Other Member……….. 4. Date on which the approved draft comes to the Sr.P.S./P.S…08/10/2018 5. Date on which the fair order is placed before the Dictating Member for pronouncement………….. 6. Date on which the fair order comes back to the Sr.P.S./P.S…… 7. Date on which the file goes to the Bench Clerk……… 8. Date on which the file goes to the Head Clerk… 9. The date on which the file goes to the Assistant Registrar for signature on the order………… 10. Date of Despatch of the Order………………