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Facts
The appeals by the Department and cross-objections by the assessee relate to additions made on account of alleged under-invoicing of bills and sales outside the books of accounts for Assessment Years 2019-20, 2020-21, and 2022-23. The AO's additions were based on statements recorded during a search and seizure operation and WhatsApp chats.
Held
The Tribunal held that the additions on account of under-invoicing were not justified, as it was not a case of under-invoicing but sales made outside the books of account. However, a GP ratio was applied to these sales. The Tribunal also held that the addition for unexplained investment in excess stock was negligible and due to estimation, thus deleting it.
Key Issues
Whether the additions made by the AO on account of under-invoicing and sales outside the books of account are justified, and whether the deletion of addition on account of excess stock is correct.
Sections Cited
147, 153C, 132, 69, 115BBE
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Income Tax Appellate Tribunal, CHANDIGARH BENCH “A”, CHANDIGARH
Before: SHRI. RAJPAL YADAV, VP & SHRI. KRINWANT SAHAY, AM
Order PER KRINWANT SAHAY, AM: These are appeals by the Department and Cross Objections by the assessee. Following grounds of appeals are there in the appeal of the Department and Cross Objections:-
2. Following grounds have been raised by the Department in for A.Y. 2019-20:
1. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs.27, 94, 95, 540/-made on account of under invoicing of bills by the AO where Sh. Satya Parkash Tiwari has accepted in his statement dt. 21/10/2021 during the search that under invoicing is a usual practice of assessee in respect of all the parties which has been confirmed by Sh. Amarjit Singh Arneja in his statement dated 22.10.2021 and also Shri Gurjit Singh has confirmed in his statement dated 28.11.2022 during the assessment proceedings? 2. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs, 27, 94, 95, 540/- by ignoring the Whatsapp chat found from the mobile of Sh. Satya Parksh Tiwari which was confronted to Sh. Satya Parkash Tiwari who accepted that the assessee was indulging in under invoicing to the extent of 30% from overall sales? 3. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs.27, 94, 95, 540/-by ignoring the fact that during the course of assessment proceedings the whatsapp chat and statement of Sh. Satya Parksh Tivari and Sh. Amarjit Singh Arneja was also confronted to Sh. Gurjit Singh partner of M/s. Gurdip Cycle Industries who also agreed with the statement of Sh. Satya Parkash Tiwari and Sh. Amarjit Singh Arneja recorded during the search proceedings who has accepted the practice of under invoicing of bills in overall sales? 4. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in relying on decision ot Hon'ble Delhi High Court in the case of Saksham Commodities P Ltd. 161 taxmann.com 485 where assessment was completed u/s 153C whereas in the present case the assessment has been completed u/s 147, hence the facts of both the cases are completely different? 5. The appellant craves leave to add or amend the grounds of appeal on or before the appeal is heard and disposed off.
2.1 Following grounds have been raised by the Assessee in CO. 23/Chd/2025 for Asstt. Year 2019-20:
That the Ld. CIT(A) has erred in not deciding the ground of appeal
with regard to the approval as granted by the Joint Commissioner of Income Tax (Central), Range, Ludhiana, which was in a mechanical manner and without any application of mind by the Worthy JCIT, (Central), Ludhiana.
2. That the CIT(A) ought to have quashed the assessment as framed by the AO since it is settled law based on the judgment of Hon'ble Supreme Court in the case of Orissa Trading Corpn. and many other judgments of different Benches of the ITAT and Jurisdictional Chandigarh Bench of the ITAT in the case of 'S.P. Singla Construction Co', and Ganesh Builders.
3. That the respondent craves leave to add or amend any grounds of cross objections before the appeal is finally heard or disposed off.
3. Following grounds raised by the Department in for A.Y. 2020-21:
1. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in deleting the addition of Rs. 19, 09, 23, 142/- made on account of under invoicing of bills by the AO where Sh. Satya Parkash Tiwari has accepted in his statement dated 21.10.2021 during the search that under invoicing is a usual practice of assessee in respect of all the parties which has been confirmed by Sh. Amarjit Singh Arneja in his statement dated 22.10.2021 and also Shri Gurjit Singh has confirmed in his statement dated 28.11.2022 during the assessment proceedings?
2. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in deleting the addition of Rs.19, 09, 23, 142/- by ignoring the Whatsapp chat found from the mobile of Sh. Satya Parksh Tiwari which was confronted to Sh. Satya Parkash Tiwari who accepted that the assessee was indulging in under invoicing to the extent of 30% from overall sales?
3. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs.19, 09, 23, 142/- by ignoring the fact that during the course of assessment proceedings the whatsapp chat and statement of Sh, Satya Parksh Tiwari and Sh. Amarjit Singh Arneja was also confronted to Sh. Gurjit Singh partner of M/s. Gurdip Cycle Industries who also agreed with the statement of Sh. Satya Parkash Tiwari and Sh. Amarjit Singh Arneja recorded during the search proceedings who has accepted the practice of under invoicing of bills in overall sales?
4. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in relying on decision of Hon'ble Delhi High Court in the case of Saksham Commodities P Ltd. 161 taxmann.com 485 where assessment was completed u/s 153C whereas in the present case the assessment has been completed u/s 147, hence the facts of both the cases are completely different?
5. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in applying G.P rate of 9. 2% on undisclosed sales by holding that it is not a case of under invoicing but case of out of books sale ignoring the statements recorded during the course of search u/s 132 of the Income Tax Act, 1961 ?
6. The appellant craves leave to add or amend the grounds of appeal on or before the appeal is heard and disposed off.
3.1 Following grounds raised by the Assessee in CO. 24/Chd/2025 for Asstt. Year 2020-21:
1. That the Ld. CIT(A) has erred in not deciding the ground of appeal with regard to the approval as granted by the Joint Commissioner of Income Tax (Central), Range, Ludhiana, which was in a mechanical manner and without any application of mind by the Worthy JCIT, (Central), Ludhiana.
2. That the CIT(A) ought to have qushed the assessment as framed by the AO since it is settled law based on the judgment of Hon'ble Supreme Court in the case of Orissa Trading Corpn. and many other judgments of different Benches of the ITAT and Jurisdictional Chandigah Bench of the ITAT in the case of 'S.P. Singla Construction Co', and Ganesh Builders.
3. That the respondent craves leave to add or amend any grounds of cross objections before the appeal is finall heard or disposed off.
4. Following grounds raised by the Department in for A.Y. 2022-23:
1. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in deleting the addition of Rs. 16, 56, 84, 726/- made on account of under invoicing of bills by the AO where Sh. Satya Parkash Tiwari has accepted in his statement dated 21.10.2021 during the search that under invoicing is a usual practice of assessee in respect of all the parties which has been confirmed by Sh, Amarjit Singh Arneja in his statement dated 22.10.2021 and also Shri Gurjit Singh has confirmed in his statement dated 28.11.2022 during the assessment proceedings? 2. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in deleting the addition of Rs.16, 56, 84, 726/- by ignoring the Whatsapp chat found from the mobile of Sh. Satya Parksh Tiwari which was confronted to Sh. Satya Parkash Tiwari who accepted that the assessee was indulging in under invoicing to the extent of 30% from overall sales? 3. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs, 16, 56, 84, 726/- by ignoring the fact that during the course of assessment proceedings the whatsapp chat and statement of Sh. Satya Parksh Tiwari and Sh. Amarjit Singh Arneja was also confronted to Sh. Gurijit Singh partner of M/s. Gurdip Cycle Industries who also agreed with the statement of Sh. Satya Parkash Tiwari and Sh, Amarjit Singh Arneja recorded during the search proceedings who has accepted the practice of under invoicing of bills in overall sales?
Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in relying on decision of Hon'ble Delhi High Court in the case of Saksham Commodities P Ltd. 161 taxmann.com 485 where assessment was completed u/s 153C whereas in the present case the assessment has been completed u/s 147, hence the facts of both the cases are completely different? 5. Whether on the facts and circumstances of the case, Ld, CIT (A) was justified in applying G.P rate of 8.2% on undisclosed sales by holding that it is not a case of under invoicing but case of out of books sale ignoring the statements recorded during the course of search u/s 132 of the Income Tax Act, 1961 ? 6. Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in reducing addition of Rs.12, 65, 629/- made by AO in respect of sales to M/s. Ashoka Trading Co to Rs.10, 34, 700/-? 7. Whether on the facts and circumstances of the case, Ld. CIT (A) was justified in deleting the addition of Rs.5, 00, 000/- on account of cash received during the year by accepting the explanation of assessee without any verification/justification? 8. The appellant craves leave to add or amend the grounds of appeal
on or before the appeal is heard and disposed off. 4.1 Following grounds raised by the Assessee in CO. 25/Chd/2025 for Asstt. Year 2022-23:
1. That the Ld. CIT(A) has erred in not deciding the ground of appeal with regard to the approval as granted by the Joint Commissioner of Income Tax (Central), Range, Ludhiana, which was in a mechanical manner and without any application of mind by the Worthy JCIT, (Central), Ludhiana. 2.That the CIT(A) ought to have quashed the assessment as framed by the AO since it is settled law based on the judgment of Hon'ble Supreme Court in the case of Orissa Trading Corpn. and many other judgments of different Benches of the ITAT and Jurisdictional Chandigarh Bench of the ITAT in the case of 'S.P. Singla Construction Co', and Ganesh Builders. 3). a).That the Ld. CIT(A) has erred in confirming the addition of Rs.8, 20,494/-on account of alleged unexplained investment in excess stock u/s 69 of the Act. b). That the CIT(A) has failed to appreciate that the said addition was not sustainable, since calculation of physical stock was made on estimation during search and the comparison of stock as per books of accounts was also worked out by applying estimated gross profit and, thus, no addition could be made of the negligible difference of Rs.,8, 20,494/-.
The facts are identical in all the years and, therefore, a common and consolidated order is being passed. At the very outset, the Ld. Counsel of the assessee by relying upon his 'Brief Synopsis' stated that there was a search and seizure operations on the business premises and residential premises of the assessee on 21.10.2021. The assessee is engaged in the business of manufacturing of 'customized cycle parts', having more than 150 varieties.
The facts, in brief, are that for Asstt. Year 2021-22, certain additions were made on account of 'under invoicing' based on the statement of an employee of the assessee firm namely Sh. Satya Parkash Tiwari which had been confirmed by Sh. Amarjit Singh Teneja partner. It was stated that suppression in sale prince is 30%. The Assessing Officer, while framing the assessment of Asstt. Year 2021-22 had extrapolated the sales, by 30% as disclosed in the regular books of accounts for Asstt. Year 2021-22. Against that order for Asstt. Year 2021-22, the assessee filed appeal before the CIT(A),where substantial relief was granted and both the assessee and the department filed appeal before the Tribunal for Asstt. Year 2021-22. The Tribunal in appeal filed by the assessee in and in departmental appeal bearing vide order, dated 23.07.2024 deleted the addition on account of 'under invoicing' as partly confirmed by the CIT(A). The finding of the Hon'ble Chandigarh Bench is in para 24 of the order for Asstt. Year 2021-22, which is being reproduced as under:- "24. We have considered the findings of the Id. CIT(A) in his order, arguments put forward by the Id. Counsel of the Assessee and the written submissions filed by him during the proceedings before us. We have also considered the different case laws brought on record by the Id. Counsel of the Assessee. Similarly, we have heard the Id. DR and considered his arguments also. After considering all the facts brought on record both by the Id. counsel of the Assessee and the Id. DR, we find that in appeal on Ground No.1 where the Id. CIT(A) has rejected \the extrapolation made by the Assessing Officer in the assessment order on the basis of a few Whatsapp Chat on total turnover of the Assessee is very logical and justified. It is because, in our opinion, if in case there is sales made outside the books of account to certain parties, on this basis the entire turnover of the Assessee cannot be taken as a suppressed turn over and 30% addition on over and above the turn over without bringing any documentary evidence for the same on record is not justified. We have also considered the finding given by the Id. CIT(A) that it is a case of under-invoicing in respect of three parties i.e., M/s Dhanawat Enterprises, Ashoka Trading and A.K. Sales. In our considered view, it is not a case of under-invoicing. Rather it is a clearcut \case of sales made outside the books of account. Further, since the Assessing Officer has already taken outside the books sales in the case of Ashoka Trading Company and M/s A.K. Sales (on the basis of Whatsapp Chats) therefore, addition in the case of outside the book sales in respect of M/s Dhanawat for Rs. 6,11,043/- (being 30%) of the undisclosed sales out of books may only be considered for calculating G.P. ratio. It is true that on the basis of Whatsapp chat, the A.O. has brought out some of the parties on record to whom the Assessee has made sales outside the books of account. As no other incriminating document was found in the case of other parties, therefore, action of the Id. CIT(A) in restricting the addition to the parties whose names figure in Whatsapp chat is very much logical and justified. We have also considered the various case laws brought on record by the Counsel of the Assessee as well as Id. CIT(A) on this issue in support of \their arguments. After considering all the facts and arguments brought on record and the written submissions filed by the Counsel of the Assessee and also taking into consideration of the case laws brought on record and argued by both the Counsel of the Assessee as well as by the Id. DR, we are of this considered view, that the addition could be confirmed only on sales made outside the books made to the parties which figures in the Whatsapp chat only. Therefore, CIT(A)'s action of restricting the addition made on the basis of sales made during the year under consideration outside the books of account to parties which \figures in the Whatsapp chat only, are justified and therefore, Assessee's appeal on this Ground of appeal
is allowed."
7. In respect of the appeal by the assessee in addition of Rs. 26,58,600/- as confirmed by the CIT(A) on account of sales outside the books of accounts, the ITAT confirmed addition of Rs. 6,11,043/- only by applying the G.P. rate @ 8.6% on the undisclosed sales of Rs. 26,58,600/-. As per finding given by the Hon'ble Bench in para 26 & 27 of the order, dated 23.07.2024 is being reproduced below: "26. On the other hand, the Id. Counsel of the Assessee argued in favour of the adoption of GP ratio of such sales. We have taken into consideration Whatsapp chat and statement recorded of Mr. Satya Parkash Tiwari as well as the partners of the firm and we have also considered all other documents and evidences brought on record by the Assessing Officer as well as discussed by the Id. CIT(A) in their respective orders. We find that there is no evidence that sales made to other parties are from the same procurement and purchase of raw material shown by the Assessee in its books of account. In this regard, no such evidence has either been brought on record by the A.O. nor any findings have been given by the Id. CIT(A) in his order. Therefore, it is logical to infer that the sales made to these parties outside the books of account must be from the purchases and procurements made outside the books of account only. Accordingly, the confirmation of addition of entire amount of sales made outside the books of account to other parties by the Id. CIT(A) does not look logical or justified. It is because whatever sales of cycle parts have been made to these parties outside the books of account, must have been procured / purchased /manufactured by the Assessee firm outside the books of account only. In this case, the addition of GP ratio of 8.60% of such sales of Rs. 26,58,600/- could only be sustained along with addition of G.P. on the sales made to M/s Dhanawat to the tune of Rs.6,11,043/-.
27. Accordingly, we confirm the addition of 8.60% ( GP ratio declared by the Assessee) on total sales of Rs. 26,58,600/- + Rs. 6,11,043/- as calculated and confirmed by the Id. CIT(A). Thus, Assessee's appeal on this Ground is partly allowed."
8. Thus, the departmental appeal was dismissed on account of extrapolation of the sales with regard to the 'under invoicing' and the addition of Rs.6,11,043/- in assessee appeal was confirmed out of the addition of Rs. 26,58,600/- as confirmed by the Ld. CIT(A).
9. For the Asstt. Year 2020-21, similar additions were made by the Assessing Officer and the facts are same as stated above. The Ld.CIT(A) by following the order of ITAT as 'cited supra' deleted the addition of under invoicing and on sales outside the books of accounts to the tune of Rs. 2,08,000/-, applied a G.P. rate of 9.20%.
Before us, the Ld. Counsel of the assessee relied upon the order of the ITAT for Asstt. Year 2021-22 as 'cited supra' and the Ld. DR relied upon on the order of AO.
For Asstt. Year 2022-23, the ground No. 1 to 5 in the departmental appeal are same as in Asstt. Year 2019-20 and 2020- 21 and the issues are covered by the order of ITAT for in Asstt. Year 2021-22, as 'cited supra'. The Ld. DR also stated that he relied on the order of the AO. For Asstt.Year 2022-23, there are two additional grounds of appeal
s in the appeal of the department viz-a-viz ground No. 5 &
6. It was argued by the Ld.DR that ground No.1 to 5 are identical to the grounds in Asstt. Year 2021-22 and, in so far as, ground No. 6 & 7, he relied upon the order of AO. The Ld. Counsel relied upon the order of CIT(A) as per para 5.3 and 5.4 of his order.
12. We have gone through the orders of AO , CIT(A), Brief Synopsis of the Ld. Counsel and earlier orders of the ITAT in Assessee's appeal bearing and departmental appeal in for the Asstt. Year 2021-22. After going through the order of AO/CIT and ITAT for Asstt. Year 2021-22, the issue in respect of 'under invoicing' is identical in all the years and also the issue of application of gross profit in Asstt. Year 2022-23 as per Ground No. 5 is the same. We have also gone through, the finding of the CIT(A) in para 5.3 and 5.4 for Asstt. Year 2022-23 in respect of deletion of addition of Rs. 12,65,629/- and addition of Rs. 5 lacs as per ground No. 6 & 7. We find ourselves in conformity with the order of the CIT(A), and, thus, following the earlier order of ITAT for Asstt. Year 2021-22, in the case of assessee and the department as 'cited supra', we have no hesitation in dismissing the appeals of the department for Asstt. Year 2019-20, 2020-21 and 2022-23. We also uphold the findings of CIT(A) in para 5.3 and para 5.4 of the order and, thus, ground No. 6 & 7 in the departmental appeal are dismissed as well.
13. In the Cross Objections for all the three years, there is common ground with regard to the mechanical approval as accorded by the Addl. CIT, for which, the Ld.Counsel of the assessee has relied upon the order of Chandigarh Bench in the case of S.P. Singla Const. Pvt..Ltd. in to 145/Chd/2024, dated 17.01.2025 and various other orders of different High Court and Tribunal.
The Ld. Counsel has also referred to Page 49 and 50 to 51 of the Paper Book, submitted for Asstt. Year 2019-20 and 2020-21 and argued that the common approval have been sought by the AO in respect of Asstt. Year 2019-20, 2020-21. Besides, approval has been sought in some other cases also and, thus, the approval granted was mechanical in nature. The assessment as framed should be quashed. For Asstt. Year 2022-23, again the approval in respect of the case of assessee and in some other cases common approval have been given as per evidence placed before us. Since, we have already dismissed the appeal of the department on merit, the discussion with regard to the approval under section 153D as argued by the Ld. Counsel becomes academic in nature and, as such, these grounds are not being adjudicated.
There is independent ground of appeal
in Cross Objection for Asstt. Year 2022-23 with regard to confirmation of addition of unexplained investment in excess stock to the tune of Rs. 8,20,494/- u/s 69. The facts are that during the course of search and seizures, inventory of stock was drawn. The stock as per books of accounts was calculated upto the date of search. By applying estimated G.P. rate and it was found that there was excess stock of Rs. 8,20,494/-. The AO made an addition of unexplained investment u/s 69 read with section 115BBE of the Income Tax Act.
Before the AO, it was contended by the assessee that the total value of stock as per books of accounts as on the date of search was calculated at Rs. 7,59,98,530/- and stock as per physical Inventory drawn and valued as on the date of search was Rs. 7,68,19,024/-. It was submitted that there was a negligible difference, which worked out only 1.07%. It was further argued that some kind of estimation is made, while counting the stock and the assessee has more than 150 items, besides the raw material and such stock consisted of raw material, work in progress, finished goods etc and there can be some bonafide errors in estimating the quantity and value of stock at the time of search. It was further argued that even the stock as per books of accounts was calculated by applying estimated G.P. rate and, thus, this small difference be ignored, considering the volume of stock and nature of business. The Ld. Counsel drew our attention to stock list as drawn from pages 52 to 95 of the Paper Book and contended that this difference needs to be ignored.
The Ld. CIT(A) confirmed the addition as per his finding in para 5.5 of the order. The Ld. Senior DR argued that the difference was calculated at the time of search.agreed to by the assessee at the time of search. Hence the Ld. DR sought the confirmation of addition.
We have gone through the order of AO, paper book submitted by the assessee, where the list of stock as inventoried during the course of search is there and find that there were numerous items and also that there can be some bonafide errors in estimating the number of pieces of different cycle parts. Since the assessee had not been maintaining any quantitative tally, the estimated stock as per books of accounts was worked out by applying the G.P. rate and further, the difference of Rs. 8,20,494/- is not much considering the facts and circumstances of the case. We are inclined to agree with the Ld. Counsel that this difference of Rs. 8,20,494/ is negligible and it can be due to estimation as stated above and, thus ,we have no hesitation in deleting the addition of Rs. 8,20,000/- as confirmed by the CIT(A).
In the cross-objections for A.Y. 2022–23, the assessee has raised a ground regarding the mechanical approval accorded by the CIT(A). Since, in A.Ys. 2019–20 and 2020–21, the issue has already been decided on merits, this ground is only academic and, therefore, not adjudicated.
In the result Revenue appeal in A.Y. 2019-20, 2020-21 & 2022- 23 are dismissed and Cross Objection / appeal of the Assessee for A.Y. 2019-20, 2020-21 & 2022-23 are allowed.
Order pronounced in the open Court on 03/09/2025