ITO, WARD - 37(3), KOLKATA , KOLKATA vs. SRI RAJ KUMAR SINGHANIA, KOLKATA

Appellant/Department by : Shri C.J. Singh, JCIT, ld.Sr.DR Respondent/Assessee by : Shri S.M.Surana, Sr. Advocate, ld.AR सुनवाई क� तार�ख / Date of Hearing : 04-09-2019 घोषणा क� तार�ख/Date of Pronouncement: 15-11-2019 आदेश / O R D E R Per Dr. A. L. Saini, AM:

The captioned appeal filed by the Revenue and cross objections filed by the Assessee, pertaining to assessment year 2013-14, are directed against the order dated 17-10-2017, passed by the Learned Commissioner of Income Tax, Appeals-11, Kolkata in Appeal No. 73/CIT(A)-11/Kol/2016-17, which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) of the Income-tax Act, 1961 ( in short the ‘Act’) dated 31-03-2016.

1. That on the facts and circumstances of the case, Ld.CIT (A)- 11 has erred in allowing relief by reducing the GP ratio from 16.80% to net profit only @ 0.40% when the assessee himself had admitted that he did not declare income from M/s Leelanand Trading Co and M/s C.O No.26/Kol/2018 Raj Kumar Singhania Ganpati Enterprise in original return and had also accepted as his undisclosed business turnover.

2. That order of Ld. CIT(A)-11's order is unacceptable when assessee had himself admitted before A.O. to take the GP rate to be @0.75% of business turnover in case of M/s Leelanand Trading Co. by reducing the same merely to net profit @ 0.40% without adducing any valid corroborative evidence on record and directing to accept the profit of M/s Ganpati Enterprise @1.09%.

3. That Ld. CIT(A)-Il failed to appreciate the fact that assessee had concealed such bank deposits and had also failed to. submit any audited accounts in due time, which was an afterthought, and CIT(A)- 11 accepted the submission of the assessee, without examining the nature of deposits as business turnover.

at either before or at the time of hearing of appeal.

3. Brief facts qua the issue are that during the assessment proceedings the assessee filed the audited profit and loss account and balance sheet along with tax audit report in respect of the proprietorship concern M/s Gayatri Enterprises. When question was raised to the assessee that he was also maintaining bank accounts in the name of two more proprietorship concerns namely M/s Leelanand Trading Co., and M/s Ganpati Enterprises, which was not disclosed in the return of income. The assessee accepted the same and stated that the said accounts were also audited, however due to mistake of the Advocate in properly uploading the figures, the income from these two proprietorship business was not shown in the return of income. The assessee filed copy of the audited balance sheet, profit and loss account and the tax audit report of the said two proprietorship businesses. The AO found that there were two bank accounts of M/s Leelanand Trading Co maintained with HDFC bank and ICICI bank and asked the assessee to explain the deposits in the said bank accounts. The assessee submitted before AO that he

C.O No.26/Kol/2018 Raj Kumar Singhania did not maintain any bank account with HDFC bank. The AO verified the same and found the submissions of the assessee correct that he was not maintaining any bank account with HDFC bank. The AO examined the bank account of M/s Leelanand Trading Co with ICICI bank and the purchase and sales declared in the audited accounts filed by the assessee and found that the turnover declared in the said audited accounts was much less than the bank deposit in bank account with ICICI for the said proprietorship business. The AO found that the bank deposits in the said bank accounts of M/s Leelanand Trading Co. was 28,35,36,579/-, as against the declared turnover of Rs.15,78,81,567/-. When confronted, the assessee submitted that the entire bank transactions have been included in the audited accounts and closing balance has been explained. The assessee also submitted that all the bank deposits and transactions have been incorporated in the books of accounts, however since the AO was not agreeing to the same, therefore the assessee, to avoid litigation, and buy peace of mind, agreed that the turnover as per the bank accounts may be taken as turnover of both the businesses. The AO accordingly determined the turnover of M/s Leelanand Trading Co., at Rs. 28,35,36,579/-. The AO found that the gross profit ratio declared by the assessee in the said business was 0.62%. The AO determined the gross profit @ 16.80% and treated the same as taxable income from M/s Leelanand Trading Co at Rs. 4,76,34,145/-. The AO found that the bank deposits in the bank account of Ganpati Enterprises was Rs. 68,76,000/ -. The AO therefore accepted the declared turnover of the said concern at, Rs. 70,90,700/-. However, he applied the same ratio of the gross profit at 16.80% as against the declared G P ratio at the rate of 1.09% and determined the gross profit at Rs. 11,91,238/-. The AO accordingly added back Rs. 4,76,34,145/- and Rs. 11,91,238/- to the total income of the assessee. In the proprietorship concern Gayatri Enterprises, the AO found that the assessee has declared Gross profit rate of 0.49% on the turnover of 33.74 crores. The AO examined the same. The AO also found that the rate of gross profit declared in the said proprietorship concern was accepted on scrutiny by the jurisdictions AO in the earlier year i.e in C.O No.26/Kol/2018 Raj Kumar Singhania assessment year 2012-13. The AO accepted the gross profit so declared in Gayatri Enterprises. The AO, however, disallowed 20% of the expense incurred under the head General Expenses, Telephone expenses and Travelling and conveyance.

4. Aggrieved by such order of the AO, the assessee preferred an appeal before the ld. CIT(A), who after considering the submissions of assessee has partly allowed the appeal of assessee by observing as follows:-

“6. I have considered the assessment order and submissions of the AR of the appellant. The main issue is with regard to the determination of the income from the two proprietorship concerns namely M / s Leelanand Trading Co and M / s Ganapati Enterprises. In so far as the determination of the turnover of M/s Leelanand Trading Co., is concerned, there is no dispute since the assessee, even though submitted that all the transactions with the bank were recorded in the books of accounts, but agreed with the AO that the deposits in the bank account may be treated as turnover. The AO has however estimated the gross profit at 16.80% of such turnover. The AO has not given any basis for determination of gross profit @ 16.80%. The turnover in the audited accounts of M/s Leelanand Trading Co and the rate of gross profit was also available in the said audited profit and loss account available before the AO. He has neither disputed the rate of gross profit declared in the said account nor brought on record any evidence to show that the rate of gross profit earned by the assessee was as exorbitant as determined by him. The AO has to bring on record some material to justify the rate of profit estimated by him and the basis of such estimate. This has been so held by the Hon'ble Calcutta High Court in the case of Ranicherra Tea Co. Ltd., 207 ITR 979. The AO cannot make a pure guess as has been held in the case of Dhakeshwari Cotton Mills reported in 26 ITR page 775. Moreover, he has determined the gross profit when for the purpose of computation of total income it is not the gross profit but net Income which has to be added to the total income. I also find that the accounts of the assessee in the case of M/s Gayatri Enterprises were also examined by the AO and the gross profit declared in the said business has been accepted. The nature of business in the said proprietorship business was similar to certain extents. It is not understood as to why the AO, when he has accepted the gross profit rate in Gayatri Enterprises, estimated the rate of gross profit at C.O No.26/Kol/2018 Raj Kumar Singhania 16.80% in the case of Leelanand Trading Co. The proprietorship concern M/s Leelanand Trading Co. was new business during the assessment year in question but in the next year i.e. in assessment year 2014-15, the AO himself has accepted the rate of gross profit at 0.79%, and net profit at 0.17% in scrutiny assessment u/s 143(3). The assessees own records are one of the factors which has to be considered and kept in mind while estimating the profit as has been held in the case of Delta Engineering Co. reported in 186 ITR 383. Similar view have been taken in the case of Action Electricals (Delhi) reported in 258 ITR 188. The AI1ahabad High Court in the case of Shyam Bidi Works (Appeal No. 64 of 2005 vide judgement dated 18th July 2014) has approved the action of the authorities wherein the rate of profit accepted in earlier years was adopted. Further it is the net profit and net income which has to be added and not the gross profit since indirect expenses are also incurred in the business. I find that the AO has accepted net profit @0.17% in the scrutiny assessment for the assessment year 2014-15 in the business under the name of Leelanand Trading Co. Similarly the AO also accepted the net profit 0.27% declared in the case of Gayatri Trading Co another proprietorship concern in the assessment year 2014-15 wherein more or less connected business is being carried on. I also find that in the audited accounts of M/s Leelanand Trading Co the, net profit declared was 0.19% which is not found to be incorrect by the AO. Therefore, normally the net profit may be fixed at the same % which has been accepted by the AO in the subsequent year particularly when the AO did not point out any higher profit in the turnover declared. However, the fact remains that the assessee did not declare income from M/s. Leelanand Trading Co in the original return. Therefore a little higher margin of net profit is required to be estimated. Taking into account all the aspects of the case including the turnover of the business estimated by the AO which has been accepted by the assessee, and to meet the ends of justice, I am of the opinion that the net profit may be estimated 0.40% of the turnover which shall be taken as income from the business under the name and style of M/s Leelanand Trading Co. The net income from M/s. Leelanand Trading Co shall therefore be taken at Rs. 11,34,146/- against the gross profit determined by the AO and taken as income. As regards the gross profit determined by the AO at 16.80% in the case of Ganpati Enterprises. I find that the bank deposits, in the bank account were less than the turnover declared by the assessee. The AO has also not found any defect in the audited accounts or book results. He has estimated the gross profit only because he made such estimate in the case of the proprietorship business under the name and style of M/s Leelanand Trading Co. The assessee also agreed that the turnover as C.O No.26/Kol/2018 Raj Kumar Singhania per deposits in the bank account may be taken which was less than the turnover declared and as such the AO has accepted the said turnover. In view of the above, in my opinion no case has been made out by the AO to reject the profit declared by the assessee in the audited accounts of Ganpati Enterprises. The AO is directed to accept the profit of Rs.34,817/ - as declared in the audited accounts. The grounds taken are thus partly a1lowed.

5. Aggrieved by the impugned order of the ld. CIT(A), the revenue is in appeal before us and the assessee is in cross objection before us.

C.O No.26/Kol/2018 Raj Kumar Singhania Since, we have already upheld the impugned order of the ld. CIT(A). We do not find any infirmity in the order of the ld. CIT(A). Therefore, we dismiss the Cross Objection filed by the assessee.

Order pronounced in the open court on this 15 /11/2019