BLUE STAR CIVIL ENGINEERING COMPANY PVT. LTD.,PURBA MEDINIPUR vs. ACIT, CIR-27, HALDIA, PURBA MEDINIPUR

ORDER Per M.Balaganesh, AM

2. At the outset we find that there is a delay in filing the appeal for 5 days. We have gone through the condonation petition filed by the assessee, we are convinced with the reasoning given thereon for the delay. Accordingly, we condone the delay in filing the appeal by the assessee and admit the appeal for adjudication.

2 Blue Star Civil Engineering Company Pvt. Ltd. A.Yr. 2011-12 3. The first preliminary ground raised by the assessee is as to whether the case was properly selected for scrutiny in accordance with the Scrutiny Guidelines prescribed by the CBDT vis-à-vis by obtaining proper approval thereon.

3.1. The brief facts of this issue is that the assessee had filed its return of income for the assessment year 2011-12 on 29.09.2011 declaring total income of Rs. 38,34,845/-. The return was processed u/s 143(1) of the Act. Later the case was selected for scrutiny. The assessee raised preliminary objection before the Ld. CIT(A) that the return for the assessment year 2011-12 filed by the assessee company was illegally manually selected for scrutiny and by not following the Guidelines prescribed under the Central Action Plan of CBDT fixing the criterion for selection of cases for scrutiny thereon. Accordingly, it pleaded before the Ld. CIT(A) that the entire assessment framed by the ld. AO is to be treated is void ab initio and liable to be quashed. The assessee in support of this argument placed reliance on the order sheet entry of the ld. AO wherein it was mentioned by the AO that the case has been selected for the purpose of scrutiny by obtaining previous approval of Additional CIT, Range-Haldia as per Central Action Plan Guideline for financial year 2012-13. Notice issued u/s 143(2) of the IT Act fixing the date of hearing on 04.02.2013. The Ld. CIT(A) observed that as per the Central Action Plan issued by the CBDT, in case of mofussil areas, the assessing officer could select the cases for scrutiny after recording the reasons for the selection and approval of the concerned Range head who happened to be the senior most officer in that station. The Ld. CIT(A) observed that the accordingly the approval given by the Additional CIT-Haldia is in order and in accordance with the Central Action Guideline which cannot be questioned by the assessee. He also observed that during the appeal this ground was not pressed by the assessee and accordingly dismissed the ground of the assessee as not pressed. Aggrieved, the assessee is in appeal before us.

3 Blue Star Civil Engineering Company Pvt. Ltd. A.Yr. 2011-12 3.2. We have heard rival submissions. The ld. AR before us placed reliance on copies of various order sheet notings to argue that the ld. AO placed reliance on Central Action Plan Guidelines of CBDT issued for financial year 2012-13 and selected the case for scrutiny for assessment year 2011-12 manually, which according to him, was illegal and hence the entire assessment framed pursuant to such manual selection of case for scrutiny is liable to be quashed. We have gone through the entire assessment records. From the same, we find that the ld. AO had duly obtained permission/approval from the Range Head of Haldia i.e. Additional CIT-Haldia before selecting the case for scrutiny manually. We have gone through the guidelines issued under Central Action Plan by CBDT in F. No. 225/93/2009/ ITA-II dated 08.09.2010 on the subject of identification of cases for scrutiny through manual selection for the financial year 2010-11 as under: “Reference is invited to Board's-letter of even number dated 28.07.2010 on the subject above.

4 Blue Star Civil Engineering Company Pvt. Ltd. A.Yr. 2011-12 is in order and consequentially the assessment framed thereon is not liable to be quashed as void ab initio. We also find that the financial year 2012-13 mentioned by the ld. AO in the order sheet appears to be only typographical error as admittedly the papers were indeed moved by him through proper channel for obtaining approval for manual selection of case for scrutiny before the ld. Additional CIT -Haldia for the assessment year 2011-12 only, which is evident and apparent from the assessment records. Hence this error committed by the ld. AO in the order sheet is construed as typographical error and is hereby condoned. In view of the aforesaid observations the ground no.1 raised by the assessee is dismissed.

4.1. The brief facts of this issue is that the assessee had incurred certain expenditure to the tune of Rs. 3,04,500/- and had paid VAT thereon in the sum of Rs. 12,180/-. The total bill amount from M/s J & M Construction was Rs. 3,16,680/-. This bill dated 24.12.2009 from M/s J & M construction after several negotiations was brought down to the tune of Rs. 3,16,680/- and ultimately the same was entered and accounted by the assessee on 10.04.2010 i.e. financial year 2010-11 relevant to assessment year 2011-12. The assessee explained before the ld. AO the reasons for the delayed accounting of this particular bill during the year under consideration. The assessee stated that there was dispute in the rate and the said dispute got settled with the said party on 10.04.2010 and accordingly, the assessee decided to account the expenditure together with the VAT portion thereon in financial year 2010-11 relevant to assessment year 2011-12. The ld. AO however did not agree to this contention and disallowed the same as explained not relatable to the year under consideration. This action of the ld. AO was upheld by the Ld. CIT(A) for the same reason. Aggrieved the assessee is in appeal before us. 4

5 Blue Star Civil Engineering Company Pvt. Ltd. A.Yr. 2011-12 4.2. We have heard rival submissions. At the outset we find that there is no dispute that the assessee had incurred this expenditure for the purpose of its business. It is not in dispute that the said expenditure together with the bill of M/s J & M Construction is not genuine. The only point that arises for consideration is that the said bills of M/s J & M Construction dated 24.12.2009 which falls in financial year 2009-10, whereas the same has been accounted by the assessee as explained in financial year 2010-11. We find that the assessee had given proper explanation for the said delayed accounting of the bill. We also find though the total bill amount of M/s J & M Construction is Rs. 3,16,680/- comprising of expenditure portion of Rs. 3,04,500/- and VAT portion of Rs. 12,180/-, the ld. AO had disallowed only the expenditure portion of Rs. 3,04,500/-, meaning thereby the VAT portion of Rs. 12,180/- has been accepted by the ld. AO as expenditure incurred during the assessment year 2011-12. We find that there is no mala fide intention on the part of the assessee in respect of this bill and not accounting the same in the earlier year. We find that the Co-ordinate Bench of this Tribunal in the case of Hindusthan Gum and Chemicals Ltd. vs. ITO reported in 23 SOT143 had allowed the claim of prior period expenses in similar circumstances. Our view is further endorsed by the following decisions of Hon’ble Delhi High Court: a) CIT vs. Jagatjit Industries Ltd. reported in 339 ITR 382 (Delhi) b) CIT vs. Modipon Ltd. reported in 334 ITR 102 Respectfully following the aforesaid decisions and applying the same to the facts of the instant case, we allow the claim of prior period expenses of Rs. 3,04,500/- for assessment year 2011-12 and accordingly, ground no. 2 raised by the assessee is allowed.

6 Blue Star Civil Engineering Company Pvt. Ltd. A.Yr. 2011-12 5.1. The brief facts of this issue is that the assessee is a civil contractor and was engaged in the business of civil construction including excavation and evacuation of dry fly ash from the site of West Bengal Power Development Corporation Ltd. (WBPDCL) and Durgapur Projects Ltd. (DPL). The assessee company did not possess the requisite infrastructure to excavate and evacuate the dry fly ash from the Thermal Power Plant and accordingly sub-contracted the said work to various sub-contractors including M/s Elecon Engineering Company, M/s Novel Engineering and M/s M Construction. The assessee explained before the ld. AO that West Bengal Power Development Corporation Ltd./ Kolaghat Thermal Power Station had adjusted Rs. 15,18,652/- during the year against the bill on account of administrative expenses for taking delivery of dry fly ash from Kolaghat Thermal Power Station. As per the contract with WBPDCL, the assessee has to pay Rs. 6 per metric tonne towards administrative charges to WBPDCL for excavating and evacuating dry fly ash from Thermal Power Station. The assessee in turn sub-contracted this work to M/s Novel Engineering and realized the administrative charges as and when the bills are raised by them. The ld. AO however observed that the assessee has not shown any income on sale of dry fly ash and genuineness of the transaction of the assessee with the sub-contractor has not been conclusively proved by the assessee. In view of this, the amount of adjustment of administration charges in the sum of Rs. 15,18,652/- as adjusted by WBPDCL was added as income of the assessee in the assessment. The assessee pleaded that though it had incurred the expenditure in the form of administrative charges at Rs. 6 per metric tonne, had eventually realized the same from its sub-contractors which is quite evident from the ledger details of the sub- contractor, in support of which he placed the relevant ledger account.

5.2. The Ld. CIT(A) observed that in case the assessee himself was taking the dry fly ash minimum to the extent of charges collected by the payee, the same would be cost of asset and accordingly closing stock thereon should have been declared by the assessee. The assessee neither declared the asset nor declared the expenses recoverable from the 6 5.3. We have heard the rival submissions and perused the material available on record. We have gone though the statement raised by the concerned parties to the tune of Rs. 15,18,662/- towards administration charges which is enclosed in page 54 of the paper book filed before us. From the perusal of the said statement we find that opening stock as on 01.04.2010 was Rs. 2,06,70,213/- and bills raised during the financial year 2010- 11 was Rs. 6,32,538/- and amount adjusted against the total bills was Rs. 15,18,662/-. The closing balance as on 31.03.2011 was accordingly arrived at Rs. 11,80,919/- which was shown as liability in the balance sheet of the assessee. We have also gone through the ledger account of the assessee as appearing in the books of Novel Engineering (i.e. sub-contractor) wherein it is evident that the assessee had indeed realized administration charges from the sub-contractor. So these facts conclusively prove that there is absolutely no case made out by the revenue for making an addition in the sum of Rs. 15,18,662/- on account of administrative charges. Accordingly, ground raised by the assessee is allowed.