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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA Nos.404 & 405/CTK/2017 Assessment Years : 2012-13 & 2013-14
ACIT Corporate Circle -1(2), Vs. M/s. T.S.Alloys Limited, N- Bhubaneswar. 3/24, IRC Village, Nayapali, Bhubaneswar. PAN/GIR No.AACCR 7005 H (Appellant) .. ( Respondent)
Assessee by : Mss Swati Kejriwal, AR Revenue by : Shri Saad Kidwai, CIT DR
Date of Hearing : 08/08/ 2018 Date of Pronouncement : 9 /08/ 2018
O R D E R Per N.S.Saini, AM These are appeals filed by the revenue against separate orders of
the CIT(A)-1, Bhubaneswar both dated 12.7.2017 for the assessment
years 2012-13 & 2013-14, respectively.
In both the appeals, the common ground of appeal taken by the
revenue is that the CIT(A) is not justified in deleting an addition of
Rs.4,06,06,511/- for the assessment year 2012-13 and an addition of
Rs.3,46,16,358/- for the assessment year 2013-14 made on account of
expenses for low recovery of chromium.
As the facts and issue involved in both the appeals are common,
therefore, both the appeals are disposed of together as under:
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The brief facts of the case are that the Assessing Officer observed
that the assessee has debited an amount of Rs.4,06,06,511/- for the
assessment year 2012-13 and an amount of Rs.3,46,16,358/- for the
assessment year 2013-14 towards low recovery of chromium. He
observed that the assessee company supplies high carbon ferro chrome to
Tata Steel Ltd., on conversion basis and as per agreement between Tata
Steel Limited and the assessee company, if the chrome contents in the
materials offered by the assessee company is less than the minimum
percentage against respective weighted average of ‘chrome and iron ratio’
indicated in product quality/norms, pro rata deduction will be made on
conversion and coke charges payable to the assessee. During the
relevant previous year, the total deduction so made by Tata Steel Limited
from the bills of the assessee company on account of the low recovery of
chrome is Rs.4,06,06,511/- for the assessment year 2012-13 and
Rs.3,45,16,358/- for the assessment year 2013-14. The Assessing Officer
suspected the intent of such an understanding between Tata Steel Limited
and the assessee company, which is a sister concern of the Tata Steel
Limited and for the reasons stated in the assessment order, held that
such an arrangement was made with the assessee company to reduce its
taxable income. The reasons given by the Assessing Officer are as under:
"4.6 The details furnished and the submission made by the assessee has been duly considered, in this regard the following need mention that
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i) The assessee did not establish any exact manufacturing loss in the process of making the finished goods,
ii) The assessee was unable to explain how in the chromium level as stipulated by TSL occurred. iii) In fact, this occurrence was beyond the control probably due to the technological limitations, iv) Further, the level of chromium in the finished by the assessee was consistently maintained at this level, v) Despite this fact, TSL had been offering contracts assessee on a continuous basis, vi) It was also not explained how the slight difference in the chromium content would affect the quality of the end products produced by TSL on the basis of the finished goods supplied by the assessee. vii) The significance of the slight variation in the chromium content was not explained. viii) From the replies- furnished by the assessee it is to be inferred that the levels maintained by the assessee is normal based on the manufacturing process adopted by the assessee and the standards stipulated by TSL was not possible due to the technology being employed. ix) It was not established by the assessee, that whether it would be possible to maintain such a level of standard of output expect by TSL and that whether any other similarly placed manufacturer in maintaining the levels as stipulated by TSL. x) Being a group company, TSL is well aware of this and continued to provide contracts for the manufacture of the product to the assessee, which only confirms, that the difference in the chromium levels found in the finished products by the assessee had no real impact in the products produced by TSL. xi) Thus, it is inferred that the stipulation for maintenance of output level in the finished products and making recoveries from the assessee for the marginal difference is only a ploy to reduce the profit margin of the assessee company to reduce the tax liability, xii) The loss that has occurred to the assesses is not on account of any manufacturing loss to the company
xiii) The computation furnished by the assessee for working out the recovery for low recovery of chromium reveals that the loss so worked out is not an actual loss but the netting off of the output for a certain period of time and based on such netting off, I amounts are being worked out and charged by TSL
xiv) It is to be mentioned that having made a claim, the onus is on the assessee to establish its genuineness beyond doubt.
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xv) In this regard, reference is made to the decision of the Hon'ble Supreme Court of India in the case of Shri Sun Siddharthbhai vs CIT (1985) 156 ITR 509 (SC), held that it is the right of the income-tax authorities to consider the genuineness of the transactions and to penetrate the veil and ascertain the truth. It is within their power to consider whether a particular transaction was to evade tax.
Before the CIT(A), the assessee submitted that the Assessing
Officer stated that the level of chromium in the finished goods was
beyond the control of the assessee. But when we go through the
manufacturing process and the factors, we can easily understand that the
process is in the control of the assessee. The total lower recovery
quantity wise and year wise is as follows:
Year Total Total quantity % of low Industry delivery of low recovery recovery standards quantity 2011-12 54437 mts 972.96 mts 1.79% 3-5%
2012-13 56261 mts 892.85 mts 1.59% 3-5%
The Assessing Officer has not considered the fact that the assessee
is doing conversion job and the finish product has certain qualitative
requirements which has been spelled out in the agreement entered into
between both the parties. Similar agreements have also been entered
into by M/s. Tata Steel Limited with other parties in the State on the
same and similar terms and conditions as with the assessee. The
assessee enclosed agreement entered into between Tata Steel Limited
and Nava Bharat Ventures Limited, which was not a group company. The
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assessee also attached a detailed calculation wherein the recovery of
Chrome Ore percentage wise and the recovery by Tata Steel Limited is
laid out. Similarly, for the same financial year, the recovery of Chrome
Ore percentage wise and recovery by Tata Steel Limited for M/s. Nava
Bharat Ventures Limited is attached. It was pointed out that it can be
seen from the two that this recovery is not happening from just the
assessee but from every entity in the similar trade. The Assessing Officer
has stated that it is ploy to reduce the profit margin of the assessee and,
hence, the tax liability by Tata Steel Limited. It was very surprising to
see that the Assessing Officer has stated things so callously without going
into the facts of the case and without going into the Industry practices.
Hence, it was submitted that the stand of the Assessing Officer that the
assessee company being group company and, therefore, have entered
into such agreements is not correct and bad in law.
It was submitted that the Chrome Content in the finished goods
supplied by the assessee is the price determining factor in the market.
The price so determined is increased or decreased on a pro rata basis by
the buyer as per the content of Chrome in the finished goods. The
assessee attached one sales bill of M/s. Tata Steel Limited, wherein the
rate of the finished good is decided at Rs. 113,513.40 at 60% chrome
content. However, because the chrome content is 60.21%, the price of
the product has become Rs.113,910.70 which is increased due to higher
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chrome content in the finished good. Therefore, it was submitted that the
chrome content in High Carbon Ferro Chrome is a very important and a
determining factor for the buyer, hence the quality of the product needs
to be maintained by the assessee at all times. Therefore, it was
submitted that the expenditure was incurred wholly and exclusively for
the purposes of business and hence, allowable deduction.
On appeal, the CIT(A) vacated the disallowance observing that
there is no doubt that Tata Steel Limited has deducted the impugned
amount of Rs.4,06,06,511/- for the assessment year 2012-13 and
Rs.3,46,16,358/- from the conversion charges payable to the assessee
company during the relevant previous year. The Assessing Officer has
doubted the genuineness of this deduction by Tata Steel Limited probably
because the assessee company is a sister concern of Tata Steel Limited.
The Assessing Officer’s doubt was that this sort of arrangement of making
deduction on account of low chrome recovery may be a method adopted
by Tata Steel Limited and its sister concern for mutual benefit of both.
May be the Assessing Officer is hinting at the fact that the transactions in
question may not be at ‘arm’s length’ terms and conditions. However, no
materials have been brought on record by the Assessing Officer to
establish that this sort of arrangement was deliberately made between
Tata Steel Limited and the assessee company and the transactions were
not real. Moreover, in the course of appeal hearing, the assessee has
7 ITA Nos. 404 & 405/CTK/ 2017 Asse ssment Years : 2 012 013 & 20 13- 14
filed copies of arrangements of Tata Steel Limited with others who are
engaged in supplying the same product i.e. high carbon ferro chrome to
Tata Steel Limited, wherein, the same provision for recovery/deduction on
bills due to low chrome recovery is there. For instance, Tata Steel Limited
has an agreement with Nava Bharat Ventures Ltd. which is not a Tata
Group company and in the agreement same terms & conditions are
there which exist in the agreement with the assessee company. Hence, it
cannot be said that Tata Steel Limited and the assessee company has
entered into an agreement deliberately so that the tax liability of the
assessee company could be reduced because of deduction on account low
chrome recovery. Moreover, the deduction made by Tata Steel Limited is
real and the assessee company cannot be taxed on income not accrued or
received. The Assessing Officer is justified to have a genuine doubt about
the genuineness of the transactions of the assessee company with its
sister concern Tata Steel Limited. However, on the basis of suspicion
alone, no addition or disallowance can be made in the assessment.
Therefore, he deleted the addition of Rs.4,06,06,511/- for the
assessment year 2012-13 and Rs.3,46,16,358/- for the assessment year
2013-14 on account low chrome recovery.
Ld A.R. supported the order of the CIT(A) whereas ld D.R.
supported the order of the Assessing Officer.
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We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. In the instant case, the
Assessing Officer observed that the assessee has claimed deduction of
Rs.4,06,06,511/- for the assessment year 2012-13 and Rs.3,46,16,358/-
for the assessment year 2013-14, which was debited by Tata Steel
Limited of which the assessee is a sister concern from the conversion
charges on account of low recovery of chrome. The Assessing Officer has
doubted the deduction claimed on the ground that the assessee is a sister
concern of Tata Steel Limited and according to him, the agreement
entered into with the assessee company was a ploy to reduce the income
of the assessee.
Before the CIT(A), the assessee filed similar agreement entered into
by Tata Steel Limited and Nava Bharat Ventures Limited and submitted
that similar deduction from the bills of conversion charges was made in
the case of Nava Bharat Ventures Limited and the agreement entered into
with the assessee was at par with that entered into with Nava Bharat
Ventures Limited.
The CIT(A) considered the submission of the assessee and held
that the Assessing Officer has doubted the agreement between Tata Steel
Limited and the assessee for the conversion charges and, therefore, has
made disallowance of the expenditure claimed by the assessee. He has
9 ITA Nos. 404 & 405/CTK/ 2017 Asse ssment Years : 2 012 013 & 20 13- 14
brought no material on record to show that the arrangement was
deliberate between Tata Steel Limited and the assessee company and the
transactions were not real. The CIT(A) held that on the basis of suspicion
alone, no disallowance can be made of the expenditure claimed by the
assessee.
Before us, ld D.R. though supported the order of the Assessing
Officer but could not bring any cogent and positive material on record to
controvert the findings of the CIT(A). No material has been brought on
record to show that the deduction claimed on account of low recovery of
chrome of Rs. Rs.4,06,06,511/- for the assessment year 2012-13 and
Rs.3,46,16,358/- for the assessment year 2013-14 is bogus or inflated by
the assessee in order to reduce its taxable income. It is trite law that
suspicion howsoever grave cannot takes place of proof. The Hon’ble
Supreme Court in the case of Dhakeshwari Cotton Mills Ltd vs CIT,
reported in 26 ITR 775/783 (SC) has held that “As regards the second
contention, we are in entire agreement with the learned Solicitor-General
when he says that the Income Tax Officer is not fettered by technical
rules of evidence and pleadings, and that he is entitled to act on material
which may not be accepted as evidence in a Court of law, but there the
agreement ends; because it is equally clear that in making the
assessment under sub-section (3) of section 23 of the Act, the Income
Tax Officer is not entitled to make a pure guess and make an assessment
10 ITA Nos. 404 & 405/CTK/ 2017 Asse ssment Years : 2 012 013 & 20 13- 14
without reference to any evidence or any material at all. There must be
something more than bare suspicion to support the assessment under
section 23(3). The rule of law on this subject has, in our opinion, been
fairly and rightly stated by the Lahore High Court in the case of Seth
Gurmukh Singh vs. CIT”
Further, the Hon’ble Supreme Court in the case of Uma Charan
Shaw Brors vs CIT, West Bengal reported in (1959) 37 ITR 271 (SC) has
held that “ Taking into consideration the entire circumstances of the case,
we are satisfied that there was no material on which the Income Tax
Officer could come to the conclusion that the firm was not genuine. There
are many surmises and conjectures, and the conclusion is the result of
suspicion which cannot take the place of proof in these matters.”
Similarly, in the appeal before us, we find that there is no material
brought on record by the revenue to show that the agreement between
the assessee and M/s. Tata Steel Limited for manufacture of high carbon
ferro chrome is sham. The Assessing Officer has treated the agreement
as sham on the basis of suspicion and conjetures and without any proof
and, therefore, the Ld CIT(A) has rightly vacated the disallowance of
expenditure.
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15 In the result, appeals filed by the revenue are dismissed.
Order pronounced on 9 /08/2018.
Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated /08/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : ACIT Corporate Circle -1(2), Bhubaneswar 2. The Respondent. M/s. T.S.Alloys Limited, N- 3/24, IRC Village, Nayapali, Bhubaneswar 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack BY ORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack