M/S MERSEN INDIA PVT LTD ,BANGALORE vs. JOINT COMMISSIONER OF INCOME TAX CIRCLE-11(2), BANGALORE

The assessee filed a petition for admission of the additional ground, this ground was inadvertently missed in the original grounds of appeal

The learned Authorised Representative submitted that due to change over in Accounting System during the assessment year, the assessee had some major problem to be sorted out tallying the completion of accounts in the F.Y. 2007-08. Hence the assessee failed to file its audited accounts within the due date to file Audit Report, so the assessee filed its Return of Income on 30.09.2008 based on unaudited financial statements so as to comply the requirement of Income Tax Act. Thus there was difference between the figures in unaudited financial statements and audited financial statements and net result was decreased in profits of Rs.84,49,131 that forced the assessee to file Revised Return under Section 139(5) of the Act. The learned Authorised Representative submitted that the Revised Return filed by the assessee is within the time allowed under Section 139(5) of the Act and being so once the Revsied Return is filed under Section 139(5) of the Act, the original return is substituted by Revised Return consequently the assessment framed according to the Revised Return only. For this purpose he relied on the decision in the case of Chief Commissioner of Income Tax Vs. Machine Tools Corporation India Ltd. 201 ITR 101 (Kar). He also relied on the judgement of CIT Vs. Mangalore Chemicals & Fertilisers Ltd. 191 ITR 256 and Dharmpur Sugar Mills Ltd. Vs. CIT 90 ITR 236 (Allahabad) and CIT Vs. UPR NN Limited 36 Taxman.com 96. The ld. AR also relied on UPRNN Ltd. Vs. ITO 24 SOT 139 where the assessee filed Revised Return on the basis of audited accounts. The depreciation cannot relied on the original return which is based on unaudited books of accounts and Assessing Officer shall consider the Revised Return of income only.

On the other hand, the learned Departmental Representative relied on the lower authorities.

We have heard the rival contentions, perused and carefully considered the material on record. In the present case admittedly the assessee filed original return of income based on unaudited accounts within the due date of filing i.e. on 30.09.2008. Later the assessee filed the Revised Return of Income on 1.4.2009 which is the basis of audited books of accounts which is within the due date prescribed under Section 139(5) of the Act. The assessee also explained the reasons for filing the Revised Return of Income that there was change over in the Accounting System during the year under consideration and it took time for the completion of accounts thereby auditing of the same. These facts are not disputed by the Department. However, the Assessing Officer made additions towards the difference between the income in original return and revised return at Rs.84,49,131 giving various technical reasons. In our opinion, unless and until the Assessing Officer rejected the Revised Return on the basis of discrepancies in Books of Accounts it is not possible to make such an addition. If there is any defect in the Books of Accounts he specifically point out the same and make specific addition. Being so, when the Books of Accounts are duly audited and approved by the AGM, the assessment has to be completed on the basis of Revised Return. There is no scope of taking the difference in income declared in the original return and revised return as additional income of the assessee. We are completely in agreement with the contention of the ld. Counsel for the assessee that the Assessing Officer cannot consider the income declared in the original return based on the unaudited books of accounts over the income declared in revised return based on the audited books of accounts. We direct the Assessing Officer to complete the assessment on the basis of the Revised Return based on the audited books of accounts. This ground of appeal

We have heard the rival contentions, perused and carefully considered the material on record. Neither the Assessing Officer nor the CIT(Appeals) has examined the relevant bills for disallowance of Rs.1,15,897 being the sundry charges. Before us, the learned Authorised Representative made an argument that this is a revenue expenditure. Without prejudice this, it is submitted that it is a plant and machinery entitled for depreciation @ 15%. At the time of hearing it was submitted by the ld. AR that the assessee has not charged any expenditure towards sundry charges to the P & L Account and the Assessing Officer wrongly noted that the assessee has charged the expenditure to P & L Account. According to him, the Assessing Officer considered the sundry charges at Rs.1,28,744 and granted 10% depreciation and disallowed Rs.1,15,897 which is incorrect. In our opinion, it is appropriate to remit this issue to the file of Assessing Officer for reconsideration to decide whether it is revenue expenditure or capital expenditure , if it is a capital expenditure, depreciation is to be granted at applicable rate. Both additional ground and main ground are allowed for statistical purposes.

Next ground is regarding disallowance of Rs.3,50,544 being 25% of charges of tools which are written off during the year. The assessee has debited a sum of Rs.3,50,544 as being the charges of tools written off. It was submitted before the Assessing Officer that the assessee has practice of writing off of 25% of charges of tools in each assessment year. According to the Assessing Officer, it has to be grouped under the head Block of Assets and depreciation to be claimed at applicable rate. The Assessing Officer disallowed the amount and granted depreciation @ 10%. On appeal, the CIT(Appeals) confirmed the action of the Assessing Officer on this issue. Aggrieved by the assessee, the assessee is in appeal before us.

We have heard the rival contentions, perused and carefully considered the material on record. The learned Authorised Representative submitted that the loose tools is nothing but inventories and have no span of life and the loose tools to be considered as inventories awaiting to use in product process and same to be accounted at cost or net realizable value whichever is lower as prescribed in A.S. II of ICAI. According to ld. AR, the assessee has been following the Inventory Policy on valuation of loose tools which is disclosed in Schedule 18 (vii) to audited financial statements. “ Loose Tools are charged of consumption @ 25% per annum on the reducing balance method.” The net realizable value of inventory are considered and valued at 75% of the processing value. In our opinion, the method adopted by the assessee to value the loose tools is justified. The loose tools are neither plant nor machinery nor buildings nor furniture nor fixtures and method valued by the assessee consistently accepted by the revenue authorities. Accordingly, we allow this ground of appeal of the assessee.

In the result, the appeal of the assessee is partly allowed for statistical purposes.