ITO, WD-46(1), KOLKATA, KOLKATA vs. PROVASH ADHIKARI, HOWRAH

ORDER Shri S.S. Viswanethra Ravi, JM :

This appeal by the Revenue is against the order dt. 22-02-2016 of the Commissioner of Income Tax (Appeals),14, Kolkata for the A.Y 2011-12.

“ I have carefully considered the entire material before me including the AO’s reason, the appellant’s submissions and the material produced before me. I have also examined the method of valuation of inventories consistently followed by the appellant over the years and test checked the item­wise stock valuation something that was present before the AO. The crux of the matter is that the AO in the assessment order has rejected the method of valuation consistently followed by the appellant – that of cost price or realizable value which is less – and applied average cost method of valuation. The only reason that he has given for this summary rejection is that of a comparative valuation of stick positions at the beginning of the year, end of year and that of purchases during the entire year. This, in my opinion, can serve as a suspicion for conducting further inquiries in relation to the consistency and reasonableness of the method being followed but cannot by itself be a sufficient reason for rejecting the entire books or the valuation method of the appellant. No specific defect in books of accounts or stock valuation was pointed out by the AO. The method of valuation of stock followed by the appellant is an acceptable one and has been followed by him consistently and accepted by the department as such. The methods of stock valuation are as it is complex processes of book­keeping especially in cases where there are multiple items of widely varying values as is the case here. In the absence of any case of substantive error the method of valuation of Inventories consistently followed by an assesse, which has been duly certified by the Auditors of the Assessee could not be changed without assigning a tangible reason for doing so. This reason has to emanate from defects of the books of account. The process to be followed is that once the appellant has submitted a set of books of account, it is his responsibility to ofer explanations to any queries in relation to such books that are raised by the AO. Once these queries are answered, it is upto the AO to decide after applying his judicious mind as to whether these queries have been answered to a reasonable level of his satisfaction. It is of course open to the AO to reject the explanation offered; but this has to be done based on soild reasoning based on facts. After this part is accomplished, the AO then has to reject the books of account – or, as in this case, the valuation method ­ and proceed to use an alternate method for estimating the profits of the appellant. This last part also has to be done on the basis of tangible, reasonable reasoning explaining why and how the method followed by the AO would prove to be superior to the one followed by the appellant in reflecting the true business affairs of the appellant. From the material on record as well as the assessment order, it is apparent that the AO has faltered in the last two phases of his expected actions. He has raised a valid suspicion but then when he was offered an explanation, he could not substantiate either his line of reasoning or why the explanation offered by the appellant was not acceptable and proceeded to apply a method valuation of stock – that of average cost – not even that of weighted average cost – that can lead to absurd results when the number of items are large and disparate as they admittedly are in this case.

Let us for a moment study the provisions related to the method of accounting as are present in the statute. Section 145 provides the AO with the power to reject the accounting method followed by the appellant – with cogent reasons and proceed with a determination of the profits and gains as per section 144 of the Act. But then the section 145A, before its amendment in 2009 read that notwithstanding anything to the contrary 2 ITA No. 1101/Kol/2016 in section 145, the valuation of purchase and sale of goods and inventory for the purpose of determining the income chargeable under the head profits and gains from business and profession shall be in accordance with the method of accounting regularly employed by the assessee, This means that the method employed by the assessee should have been regularly followed by the assessee over the years. Such we find is the case here. This does not however, preclude a rejection of books of account by the AO ­ but this has to be done with cogent material. What, however, this does preclude is a change in method of valuation employed regularly by the assessee. It is not open to AO or to the assessee in fact to arbitrarily change the method of valuation of sales and purchases. This we find has been done here by the AO and is not permissible without ascribing of cogent tangible reasons. It was always open to the AO to reject the books of account u/s 145 and proceed with a best judgment assessment u/s 144 after ascribing reasons for such rejection. But this admittedly has not been done by the AO.

The above said view is supported by a plethora of judicial opinions that build up the propositions discussed above.

In CIT Vs Mcmillan & Co (SC) 1958 AIR 207 (1958), the apex court has held that "Although it is for the Income­tax Officer, in the first instance, to decide what would be the correct method of accounting under the proviso in a particular case, he has, in doing so to act reasonably and judicially and not subjectively or arbitrarily and any decision he may arrive at cannot be treated as final." This is proposition empowers the AO to diverge from the method of valuation but not arbitrarily and without ascribing any reasons.

THE INCOME TAX APPELLATE TRIBUNAL; 'B' BENCH AHMEDABAD; A. Y.: 2006­07; The A. C. I. T., Circle­2, Vs M/s. Shantilal Nagardas & Bhavnagar Co.,Nanavati Bazar, Bhavnagar has also upheld the same proposition while frowning upon disturbing the method of valuation followed by an assessee consistently over the years without ascribing cogent reasons. /they have observed,

"The issue of disturbing the valuation of closing stock can also be seen from the context of the rule of consistency. It is a matter of fact that the appellant is carrying on this business for the last several years. The appellant had valued the stock by adopting the same formula and the same has never been disturbed or challenged by the Department in the past. The Assessing Officer is, therefore, not justified in adopting suddenly a changed method replacing the standard and accepted method of valuation of stock"

Reliance may also be made to the decision of ITAT Ahmedabad in the case of Income Tax Officer Vs, Chokshi Hirachand & Bros (37 TTJ ,415) wherein it has been held that, “When the valuation of closing stock according to the accounting system consistently follows was accepted by the Revenue in earlier as well as subsequent assessment years, ITO was not justified in making additions by adopting a different method for assessment years in question.”

Reliance is also placed on the decision of your honour in the case of M/s. Soni Dwarkadas Virchand & Sons wherein your Honour has held that:

“The issue of disturbing the valuation of closing stock can also be seen from the context of rule of consistency. It is a matter of fact that the appellant is a partnership­firm carrying on this business for the last several years. A number of scrutiny assessments have also been completed by the department in the past in several years. The AR has pointed out the firm had valued the stock by adopting the same formula and the same has never been disturbed or challenged by the department in the past. The AO is, therefore, not justified in adopting suddenly a changed method replacing the standard and accepted method of valuation of stock (weighted average cost method) to market price.”

The Hon'ble Supreme Court has clearly held that the valuation of stock in trade whether at cost or market price, which is a matter entirely within the discretion of the assessee ­ C I T Vs. British Paints Ltd (188 ITR 44). Similarly, the Apex Court has held in Chainrup Sampatram Vs. CIT (24 ITR 481) that while valuing the closing stock, it is only the anticipated loss that is required to be taken into account, while the anticipated profit in the shape of appreciated value of stock is not required to be brought into account till its actual realization. Further, the Hon'ble Supreme Court has carved out an exceptional situation only where the above method of valuation of stock will not be applied. This has been done in the case of Sakhti Trading Co. Vs. CIT (250 ITR 871), in which the Hon'ble Supreme Court has held that if there is a dissolution of the firm coupled with discontinuation of the business, the stock has to be valued at market price. This is because in the case of dissolution of the firm with discontinuation of business, "going concern concept" does not apply and the accounts are required to be settled primarily for determining the rights and obligations of the persons concerned. The Hon'ble Gujarat High Court has also followed the above view in Balapur Vibhag Jungle Kamdar Mandali Ltd Vs. CIT (135 ITR 91) and in Kwality Steel Suppliers Vs. C I T (271 ITR 40). Since in the present context, there is neither dissolution of the firm nor discontinuation of business, the exception carved out from the general rule, thus, clearly does not apply.

The Hon'ble ITAT, 'C Bench, Ahmedabad, has delivered a judgment in regard to method of accounting in the case of ACIT Vs. Shri Vijay M. Parekh in !TAs No.1994 to 1999/Ahd/2009 vide their order dated 25th September, 2009 wherein the Hon'ble ITAT has observed that the assessee had been regularly following the very same method of accounting consistently which .had been accepted' by the. Department even in the past in the orders passed under section 143(3) of the Act. It is further observed therein that the Assessing Officer has not brought any cause or evidence in rejecting the method of accounting regularly followed by the assessee but on the other hand, the Assessing Officer has applied another system of accounting against the spirit of applicable section i.e Section 145 of the Act though he has not categorically rejected the books of the appellant. It is further held that the Department cannot compel the assesse to adopt a particular system of accounting. The Hon’ble Tribunal has also observed that there is no cogent and valid reason for disturbing the method of accounting regularly followed by the appellant.

Even on merits of the valuation itself, I find from the material produced before me no inconsistencies when test­checked. The method of accounting regularly employed by the appellant is an accepted one for accounting policies, it has consistently been one and has been accepted regularly by the department. In view of this I cannot agree with the action of the AO with regard to the instant ground and the ground of the appellant is allowed, deleting the impugned addition on this count. “

Order pronounced in the open court on 25-07-2018