Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI J. SUDHAKAR REDDY, AM & SHRI S. S. GODARA, JM
IN THE INCOME TAX APPELLATE TRIBUNAL “A”, BENCH KOLKATA
BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI S. S. GODARA, JM आयकर अपीलसं./I.T.A No.1248/Kol/2018 (�नधा�रण वष� / Assessment Year: 2012-13) M/s Rukmani Agencies Vs. ITO, Ward-47(4), Kolkata P.K. Himmatsinghka, AA-4, Salt Lake, Kol-64. �थायीलेखासं./जीआइआरसं./PAN/GIR No.: AAFFR0072C (Appellant) .. (Respondent)
Appellant by : Shri Pramod Kr. Himmatsingh, Advocate Respondent by : Shri Sankar Halder, JCIT, Sr. DR
सुनवाईक�तार�ख/ Date of Hearing : 12/09/2019 घोषणाक�तार�ख/Date of Pronouncement : 11/12/2019 आदेश / O R D E R Per Shri S. S. Godara: This assessee’s appeal for assessment year 2012-13 arises against the Commissioner of Income Tax (A) - 14, Kolkata dated 05.04.2018 passed in Case No.64/CIT(A)-14/Wd-48(1)/2015-16 involving proceedings u/s 143(3) of the Income Tax Act, 1961 (in short ‘the Act’).
Heard both the parties. Case file perused.
The assessee’s former substantive ground challenges correctness of both the lower authorities’ action treating his bank deposits of Rs.1,57,65,000/- as unexplained cash credits during the course of assessment as affirmed in the lower appellate proceedings. The CIT(A)’s detailed discussion to this effect reads as under: “4.1 Addition of an amount of Rs.1,57,65,000/- as unexplained cash credit The appellant firm engages in the business of being a distributor of consumer goods, in the business of sale of potatoes and claims to be a trader of fabrics sarees. During the previous year relevant to the assessment year, a survey operation was carried out in the business premises of the appellant on 18th of January 2012. During the survey it was noticed that even though there were entries in the books of accounts in respect of purchase of sarees and fabrics but no corresponding entries of all the alleged sales have been recorded. Moreover, no physical stock or inventory of sarees or fabrics could be found on the date of survey. On the date of survey, the survey team generated the P&L account and balance-sheet from
I.T.A No.1248/Kol/2018 M/s Rukmani Agencies the books of accounts maintained in the computer of the appellant. It was observed by the survey team that the appellant had shown opening stock of a fabrics at Rs. 33,83,756, purchase of fabrics at Rs. 94,77,420, sales of fabrics at rupees 26,07,500 and closing stock or fabrics at Rs 1,03,87,762 as on 31.12.2011 in the said P&L Account and balance sheet. However, from the date -wise transactions book i.e., the day book, it was observed that there was only one instance of sale of saree for an amount of Rs.1,20,000. No sale bill or vouchers for saree or fabrics sale were found by the survey team. The appellant could not produce any evidence with respect to the sale of the fabrics. In the survey statement, in reply to question number 7, Mr. Ritesh Agarwal, the main partner of the firm stated "actually all stock of fabrics/sarees has been sold out". In reply to question number 8, on being asked to produce the sales bills and relevant entries with respect to the fabrics in the books, he further stated "we are unable to produce any sales bill in this regard. In fact, the sale proceeds of fabrics/sarees have not been accounted for in the books of accounts." During the course of assessment proceedings also the appellant was unable to produce any evidence in the nature of sales bills or challans to prove the claim of sales. Therefore, the Assessing Officer concluded that the appellant was only an entry operator in saree market and has given entry of purchase of saree only and hence, there was no corresponding sales bills of sarees and no physical stock of sarees as such. During the course of assessment proceedings, the AO further noted, that an, amount of Rs.75,65,000 was deposited in cash in the Account Number 151502000000431 maintained with Indian Overseas Bank during the period from 21st of November 2011 to 31st of March 2012. All this amount has been subsequently transferred to another CC Account Number 151502000000303 maintained with the same bank. It was also observed that an amount of Rs 82,00,000 were deposited in a cash in addition to the sum mentioned above in the Bank Account number 15102000000303 maintained with Indian Overseas Bank. Therefore, the AO enquired the appellant to offer its explanation in respect of such huge amounts of cash deposits totaling to Rs.1,57,65,000. The appellant in reply submitted that the cash deposited in the bank accounts have duly been recorded in the books of accounts. It is further submitted by the appellant that the source of such cash deposit was the sale proceeds of fabrics or sarees which were sold in cash. It was also submitted that such cash sales have duly been accounted for in appellant's books. However, the AO noted at the time of survey even though the partner of the firm stated that all the sarees were sold out yet he was unable to produce any sales bills for the same. He also noted that the P&L account as on the date of survey revealed a closing stock of sarees at Rs 1,03,87,762 which is contradictory to the stated position that all the sarees have been sold as on the said date. The AO further noted that during the course of assessment proceedings the AR of the assessee admitted during the course of hearing vide order-sheet noting dated 17th of February 2015 that the assessee will not be able to produce any challan or sales bills in respect of sales of saree. He therefore, did not accept the explanation that the source of the cash deposited was in fact the alleged saree sale made in cash and treated the amount of cash deposits as unexplained. He proceeded to add the said unexplained cash credit of an amount of Rs 1,57,65,000 under section 68 of the IT Act. During the appellate proceedings, the appellant reiterated its submissions made before the AO. It is further contended that as the survey team noted the bills of purchases, the purchases have been proved and therefore, the only way that the stocks could vanish at the time of survey was by way of sales. It is also contended as the Assessing Officer has not rejected the books of account, the contents of the books cannot be disbelieved in toto. The appellant's contentions were carefully analyzed from all angles. 4.1.1. On going through the gamut of facts, I observe, that cash deposits of an amount of Rs 1,57,65,000 have been made in appellant's bank accounts during the period of 21st of November 2011 to 31st of March 2012. The onus squarely rests on the appellant to prove the source of these credits, creditworthiness of the creditors and the genuineness of the transaction. As the AO noted these cash credits in the bank accounts and he gave notice to the appellant with intent to consider the same for addition as unexplained cash credit, it is the bounden onus on the appellant to prove all the 3 facets of the transaction to the hilt to the satisfaction of AO. I observe, even though the assessee contends that it had sold the fabrics or sarees in cash and that is the source of these credits, yet neither during the survey proceedings nor during the assessment and nor even in the appeal proceedings, the appellant has come out clean with respect to the parties to whom the sales have been made. No evidence with respect to sales bill, sales challan have been produced as evidence of sale. It is contended that at the time of survey there was no inventory of stock because every item has been sent to the purchase parties for approval. And, as the approval has not yet been obtained till then, the recognition of the sales have not been made in the books. Convincing though it may appear, but even with regard to this the appellant has not come up with any proof as to who were the parties to whom such goods have been sent for approval. No proof with respect to movement register evidencing movement of goods, receipt acknowledgement or lorry/auto receipts evidencing such movement of goods to the purchase parties have ever been provided to the survey team, to the authorities below or even before me. The contention that purchases have been not controverted and therefore, sales must have taken place also is irrelevant to the issue under consideration because for addition under section 68 the onus is on the appellant to prove the identity of the creditor rather than to show by long-drawn conclusion as to how a transaction could have taken place. Thus, the appellant abysmally fails in proving the identity of the creditors in this case. Now, with regard to the creditworthiness of the creditors, the appellant has failed again as it does not want to show the identity itself of the alleged creditors. Therefore, the question of proving their creditworthiness does not arise. The final aspect of genuineness of transaction remains gravely in doubt as the appellant has not produced any proof with respect to the credit transaction out of a sale by way of any sales bill or challan evidencing the same. Thus, all the 3 legs of cash credit remain unproved. The contention that books of accounts have not been rejected and hence they are to be believed is also devoid of any merit as the addition under sec 68 or under sec 69 of the IT Act does not necessarily Page | 2
I.T.A No.1248/Kol/2018 M/s Rukmani Agencies have to be proceeded by rejection of books of accounts. One is for unexplained cash credit or unexplained investment and the other is for insufficiency or defective books. In view of the fact that the appellant is unable to link in any way the cash credits in the bank account with any worthwhile proof even in a feeble manner, I am constrained not to interfere with the order of the A.O. The addition made u/s 68 of the Act is fully justified with the order of the A.O. The addition made u/s 68 of the Act is fully justified and the A.O’s order is sustained. Appellant’s grounds in this regard fail.”
Learned counsel first of all invited our attention to the assessee’s partners’ twin survey statements; both dated 18.01.2012, Profit & Loss A/c from 01.04.11 to 18.01.12, (upto survey date), inventory of saree purchases (RA-2), copy of VAT return, reply letter dated 16.02.2015, letter dated 12.01.2018 with sale bills, tax audit report and audited accounts up to 31.03.2012, Assessing Officer’s order- sheet and another letter dated 22.09.2012 addressed him that the assessee had stopped business activities; respectively. He quotes accounting standard AS-9 regarding revenue recognition in support of the assessee’s contention that it could not have recognized the challan amounts as income pending approval of the concerned customer parties. Learned counsel submits in light of the following detailed documents and assessee’s explanation that both the learned lower authorities have erred in law and as well as on facts in treating assessee’s bank deposits involving saree/fabrics sales amount as unexplained cash credits u/s 68 of the Act.
The Revenue’s case on the other hand is that the assessee has failed to explain source of the impugned bank deposits attributable to saree/fabric sale amounts realised from the customer parties right from date of survey on 18.01.2012 to the lower appellate proceedings. It draws strong support from the CIT(A)’s foregoing detailed discussion affirming the impugned addition.
We have heard rival submissions. The above narrated backdrop of pleadings makes it clear that the issue between the parties is about assessee’s bank deposits totalling to Rs.1,57,65,000/-. The assessee’s stand throughout has been that this sum represents sarees/fabrics sales on challans realised from various customer parties which has been declined in all the lower proceedings. There is hardly any dispute that the assessee has proved its opening stock of sarees/fabrics of Rs.3383756.24/- as on 01.04.2011. It further recorded purchases of 48210
I.T.A No.1248/Kol/2018 M/s Rukmani Agencies pieces of sarees from its supplier M/s. Mina Saree amounting to Rs.9477420/-. All these figures duly emerge from ‘RA-2” forming part of the case file. We notice from a perusal of the assessment order at page 2 that although the Assessing Officer’s show-cause notice proposed the said purchases to be treated as bogus, he neither asked for proof of genuineness of assessee’s opening stock nor did he issue section 131 or 133(6) process on the assessee’s supplier (supra) to this effect. His assessment order nowhere holds that either of the two components i.e. opening stock and purchases are not correct. The very factual position has continued in the CIT(A)’s above extracted lower appellate discussion as well. We hold in this factual backdrop that the assessee duly proved its saree stock during the relevant previous year amounting to Rs.1,36,77,207/- as per its books of accounts including fabric stock of Rs.1,03,87,762/-.
It further transpires that the survey authorities had sought to physically verify the assessee’s stock of sarees on 18.01.2012. They could not find any such stock item at its premises. The only inference that could be drawn in such circumstances is of clandestine sales by disposing off sarees/fabrics out of books only forming source of the impugned cash deposits. We thus direct assessment of the impugned bank deposits @8% only. This former issue is partly accepted in assessee’s favour.
We now come to the latter issue of disallowance of interest amounting to Rs.8,92,283/- paid to the bank. The Assessing Officer quoted assessee’s partner’s survey statement in questions no.11 & 12 allegedly admitting capital withdrawn of Rs.25,20,688/- and its deployment in sister concern M/s. Sarvesh Rice Mill Pvt. Ltd. involving interest expenditure of Rs.20,07,637/-; including proportionate amount in issue of Rs.8,92,283/- on pro rata basis. The same stood disallowed in assessment as well as in the CIT(A)’s order. The Revenue’s case before us is that both the lower authorities have rightly made the impugned disallowance going by the survey statement.
We find no merit to sustain the impugned disallowance. The fact remains that the assessee has advanced interest-bearing funds to its sister concerns only.
I.T.A No.1248/Kol/2018 M/s Rukmani Agencies This is not the Revenue’s case that the same lacks the element of commercial expediency between two sister concerns as per hon’ble apex court’s landmark decision in S.A. Builders Ltd. v. CIT [2007] 288 ITR 1 & Hero Cycles Ltd. vs. CIT 379 ITR 347(SC). We draw support therefrom to conclude that the assessee’s act of advancing interest bearing funds to its sister concern involved commercial expediency and therefore, the impugned pro rata interest disallowance cannot be sustained. The same stands deleted.
This assessee’s appeal is partly allowed in above terms.
Order is pronounced in the open court on 11.12.2019.
Sd/- Sd/- (J. Sudhakar Reddy) (S. S. Godara) ACCOUNTANT MEMBER JUDICIAL MEMBER कोलकाता /Kolkata; �दनांक/ Date:11/12/2019 RS, Sr. PS आदेशक���त�ल�पअ�े�षत/Copy of the Order forwarded to : 1. The Appellant - M/s Rukmani Agencies 2. The Respondent- ITO-47(4), Kolkata आयकरआयु�त(अपील) / The CIT(A), Kolkata [sent through email] 3. आयकरआयु�त/ CIT 4. �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, कोलकाता/ DR, ITAT, Kolkata [sent 5. through email] गाड�फाईल / Guard file. 6. स�या�पत��त