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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’, NEW DELHI
Before: SH. I.C. SUDHIR & SH. O.P. KANT
ORDER PER O.P. KANT, A.M.: This appeal by the Revenue is directed against order dated 27/08/2013 of Ld. Commissioner of Income-tax( Appeals)-XVIII, New Delhi (in short ‘the CIT-A’) for assessment year 2009-10 raising following grounds: “
1. On the facts & in the circumstances of the case, the Ld.CIT(A) has erred in allowing the appeal of the assessee without appreciating die reasons for rejecting the books of accounts given by the assessing officer in the order itself.
2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in not appreciating the facts that during assessment proceedings, gross disparities between the results shown by the assessee were found which is an appropriate reason-to- invoke the provision of section 145(3) of the Act.
3. The appellant craves to be allowed to add any fresh grounds of appeal and/or delete or amend any of the grounds of appeal.”
The facts in brief of the case are that the assessee company, was engaged in the business of manufacturing and trading of beverages cans during the relevant period. The company sold majority of its output to M/s. United Breweries and ‘SAB Miller’. The assessee filed return of income on 30/09/2009, declaring nil income. The case was selected for scrutiny by the ITO Ward, 15(3), New Delhi and statutory notices were issued and duly complied with. The case was subsequently transferred to the DCIT, Circle 15(1), New Delhi, who finally completed the assessment, rejecting books of accounts of the assessee under section 145(3) of the Act and estimated net profit at the rate of 5% on total receipt of Rs.35,34,06,000/-, which was worked out to Rs.1,76,70,300/-. Before the Ld. CIT-A, the assessee submitted additional evidences in the shape of books of accounts, which were forwarded to the Assessing Officer calling for a remand report. The remand report received from the Assessing Officer was forwarded to the assessee for its comments. The Ld. CIT-A after taking into account the remand report and the rejoinder of the assessee on said remand report, found no merit in the finding of the Assessing Officer to reject books of accounts and apply a flat rate of 5% on the total turnover and accordingly allowed the appeal of the assessee. Aggrieved, the Revenue is in appeal before the Tribunal raising the grounds as reproduced above.
In both the grounds, the Revenue has contested the action of the Ld. CIT-A in not accepting the reasons for rejecting the books of accounts. 4. The Ld. Senior DR supporting the grounds submitted that the Assessing Officer found gross disparities in the results shown by the assessee, which remained unexplained due to non-submission of information. According to him, the discrepancies in manufacturing results were sufficient to reject the books of accounts of the assessee under section 145 (3) of the Act and apply a reasonable profit rate on the total receipts of the assessee.
On the other hand, the Ld. counsel of the assessee submitted that observations based on the Tax Audit Report (TAR) and financial statement of the assessee were not sufficient for rejecting books of accounts of the assessee. He further submitted that in remand proceeding additional evidences in the shape of books of accounts were forwarded to the Assessing Officer, but, in remand proceeding also he could not point out any defects in the books of accounts maintained by the assessee company and thus the Ld. CIT-A has rightly accepted the book results of the assessee. He also submitted that the profit rate of 5% applied on the turnover was arbitrary and without any comparable results of the industry. The Ld. counsel, accordingly prayed to uphold the order of the learned CIT-A on the issue in dispute.
We have heard the rival submissions and perused the relevant material on record. We find that the Assessing Officer has rejected books of accounts on the basis of following observations:
“4. During the year the assessee has shown sales at Rs.33,62,90,000/- and other income of Rs. 1,71,16,000/- against which net loss of Rs.34,33,07,000/- has been declared. The company sells the majority of its output to United Breweries and Sab Miller. From the details available, the following observations are made: i) Perusal of Schedule 18 to the Tax Audit Report reveals that the ratio of finished goods produced is 72.14% which indicates that the wastage is at 27.86%. ii) Further, schedule 13 to P&L A/c reveals the receipts on account of sale of scrap at 1.26 crores as against the purchases of raw material at Rs.27.09 crores. iii) Value of opening stock of finished goods is shown at Rs.2,74,36,000/- against the quantity of 2,18,096 cans, which gives the value per can at Rs. 125.80. iv) Value of raw material consumed for production of cans is shown at Rs. 18,34,28,000/- and the quantitative production is shown of 6,95,05,811 cans, which gives the value per can at Rs.2.64. v) Value of closing stock of finished goods is shown at Rs.5,82,25,000/- against the quantitative number of 55,23,653, which gives value of per can at Rs.10.54.”
On perusal of the above discrepancies, we find that the Assessing Officer has analyzed the financial results shown by the assessee in the Tax Audit Report (TAR) and profit and loss account. The Assessing Officer has noted percentage of wastage in the manufacturing process, ratio of sale of scrap as compared to purchase of raw material, comparison of value of finished product contained in opening stock, value of finished products produced during the year and value of finished products contained in closing stock. In our opinion, all these analysis could be a trigger for examining the books of accounts and find out reasons for any deviation in various ratios as compared to preceding years but, these observations in itself, cannot be considered as defect in books of accounts and become ground for rejecting the books of accounts of the assessee. The assessment was completed under section 144 of the Act and before the Ld. CIT-A the assessee explained the reasons for manufacturing results and losses claimed. Before us also the Ld. counsel referred to tables reproduced on page 7 to page 9 of the order of Ld. CIT-A and explained, as how, the Assessing Officer took incorrect data for computing value per ‘Can’ in opening stock, production and closing stock. He submitted that the Assessing Officer has added both the canes and Can Ends while working out value of ‘Canes’ in closing stock.
It is mentioned by the Assessing Officer that vide order sheet entry dated 17/10/2011, the assessee was asked to furnish certain details, however only part details were filed at the fag end of the time barring period. However, we find that before the Ld. CIT-A, the assessee stated of having filed following details before the Assessing Officer:
i. Write up on the business and sources of income (page 107 of PB) ii. Full address of main office with units and branches (page 108 of PB) iii. Full address and PAN of shareholders (page 109 of Paper Book) iv. There is no addition in the share capital during the year under consideration v. Detail of share holders holding 10% and more shares in the company (page 110 of Paper Book) vi. List of Directors with complete address and PAN NO. (page 111 of PB) vii. Detail of loan taken from parties listed in the register 301 and 370 of the Companies Act (page 112 of Paper Book) viii. List on concerns in which the Directors are interested (page 113 of PB) ix. Details of secured loans (page 114 of Paper Book) x. Details of unsecured loan (page 115 of Paper Book) xi. Detail of addition to fixed assets (pages 116-119 of Paper Book) xii. There was no investments in any shares or other funds xiii. Detail of opening and closing stock (page 120 of Paper Book) xiv. Detail of sundry debtors with address (pages 121-122 of Paper Book) xv. Details of loan and advances (pages 123-124 of Paper Book) xvi. Detail of creditors with address and amount (page 130 of Paper Book) xvii. Detail of other income received (page 133 of Paper Book) xviii. The company has incurred loss during the year (pages 134-135 of PB) xix. Detail of purchase and sales (pages 136-137 of Paper Book) xx. Detail of top twenty customers and suppliers details (pg. 138-139 of Paper Book) xxi. Detail of interest paid (page 140 of Paper Book) xxii. Detail of calculation of deferred tax (page 144 of Paper Book) xxiii. Details of dividend received-no investment and hence no dividend income xxiv. No additional depreciation has been claimed xxv. No loss on account of purchase and sale of shares xxvi. No short term and long term capital gain or loss xxvii. There is no deduction under Chapter VIA of IT Act 1961 xxviii. Please find below details of loss claimed during A. Ys. 07-08 and 08-09 A.Y. 2007-08 Loss 76,44,726/- (page 145 of Paper Book) A.Y. 2008-09 Loss 22,43,34,097/- (page 146 of Paper Book)
The assessee also filed additional evidences in the shape of books of accounts before the Ld. CIT-A, which were forwarded to the Assessing Officer for his comments. The relevant part of the rejoinder submission of the assessee before the Ld. CIT-A is reproduced as under:
“2.8 In view of the aforesaid there is no occasion for the learned Assessing Officer not to accept additional evidence in the shape of books of accounts particularly when all details as culled out from books of accounts stand accepted. In any case, it is also submitted that no addition has been made for non production of books of accounts. On the contrary, the maintenance of books of accounts stand accepted though rejected for reasons stated in the order assessment which have been rebutted separately in paras 5 to 7 of the written submission dated 22.11.2012, for which no submission have been made by the learned Assessing Officer in his report.”
Thus, in our opinion, the Ld. CIT-A in the process of admitting additional evidences , has allowed sufficient opportunity to the Assessing Officer to examine the books of accounts and find out discrepancy if any, however the Assessing Officer has failed to point out any discrepancy in the books of accounts of the assessee. The Ld. CIT-A has allowed the appeal of the assessee with following observations:
“Grounds of appeal Nos. 1 to 4 are taken together as these are inter-linked and has been taken against action of Assessing Officer by which he has made addition of Rs.1,76,70,300/- by estimating profit @ 5% on the total receipts shown by appellant amounting to Rs.35,34,06,000/-. In this regard, learned Authorized Representative of the appellant has vide letter dated 14/01/2013 submitted various documents comprising of quantitative details, comparative yield chart, copy of ledger account, reasons for loss and copy of Schedule-20 of Tax Audit Report. In this regard, it has also been submitted that there is no I other concern engaged in similar business and as such there is no comparison chart which could be filed in this regard. 7.1 I have gone through the details and it is found that appellant Company is engaged in the business of manufacturing and trading of beverages cans since October, 2006. The appellant has also submitted that in the past year, losses declared has been accepted as per following details:- Assessment Date of filing of Loss Declared Assessment Year return 2007-08 31.10.2007 76,44,7267- 143(1) 2008-09 30.09.2008 22,43,34,0977- 143(1)
7.2 The appellant has also filed the chart showing chronology of the event which is available in the submissions from page No. 3 to page No. 10 and in relevant paragraph No.4 of the submissions. Appellant has challenged that principles of natural justices has not been followed in the instant case, for which appellant has relied on various case laws which were perused by me. It is seen that appellant is mainting various books of accounts as under:- a) Cash Book b) Bank Book c) Sales Register d) Purchase Register e) Debit Note/Credit Note Register f) Salaries and Wages Register g) Journals h) General Ledger i) Subsidiary Ledgers j) Stock Records k) Fixed Assets Register l) Employee Advance Ledger 7.3 Appellant has also furnished copy of audited financial statement which is available at page 2 to page No. 21 of this paper book. Furthermore, Assessment Year-wise chart is as under:- (In Rs.) Sr. A.Y. Sales Gross Loss Net Loss Assessment No. 1 07-08 96,97,000 3,97,000 (78,12,000) 143(1) 2 08-09 9,83,77,000 (65,65,000) (18,99,99,000) 143(1) 3 09-10 37,99,01,000 (9,19,34,000) (34,33,07,000) 143(3) 7.4 From which it is evident that sales in the year under consideration is much higher in the immediately preceding year. In this regard, it is found that Assessing Officer has not pointed any specific discrepancy in the details furnished and has proceeded to reject books of accounts and without pointing that accounts were not correct and complete in this regard, the learned Authorized Representative of the appellant has relied on various judicial pronouncements which were perused by me. After considering the same and analyzing the facts in detail, I am of the considered view that action of Assessing Officer rejecting books of accounts is not based on any concrete finding. Appellant’s reliance on the following case laws is appreciated:- (i) 26ITR 159 (Punj) Pandit Bros. v. CIT (ii) 38 ITR 152 (Ker) S. Veeriah Reddiar v. CIT (iii) 72 ITR 328 (Mys) P. Venkana v. CIT (iv) 257 ITR 764 (Mad) R. V. S. and Sons Dair Farm vs. CIT (v) 38 ITR 579 (SC) S.N. Namasivayam Chettial vs. CIT 7.5 After considering the facts in totality, I find that there is no merit in the finding of the Assessing Officer to reject books of accounts and Assessing Officer should have not applied a flat rate of 5% on the total turnover especially in a case where books of accounts are audited. Grounds of appeal No. 1 to 4 of the appeal are allowed.”
11. In view of discussion above, we concur with the finding of the Ld. CIT-A, on the issue in dispute and uphold the same. Accordingly, the grounds No. 1 and 2 of the appeal are dismissed.
12. The ground No. 3, being general in nature, we are not required to adjudicate upon. 13. In the result, appeal of the Revenue is dismissed.
The decision is pronounced in the open court on 21st April, 2017.