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Income Tax Appellate Tribunal, “D” BENCH : KOLKATA
Before: Hon’ble Shri J.Sudhakar Reddy, AM & Hon’ble Shri S.S. Viswanethra Ravi, JM ]
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH : KOLKATA [Before Hon’ble Shri J.Sudhakar Reddy, AM & Hon’ble Shri S.S. Viswanethra Ravi, JM ] I.T.A No. 379/Kol/2017 Assessment Year : 2013-14 M/s Punjab Glass Depot -vs- ITO, Ward-35(1), Kolkata [PAN: AAFFP 9629 K ] (Appellant) (Respondent)
For the Appellant : Shri Miraj D Shah For the Revenue : Shri A. Bhattacharjee, Addl. CIT Date of Hearing : 17.05.2018 Date of Pronouncement : 18 .05.2018
ORDER Per J.Sudhakar Reddy, AM
This is an appeal filed by the assessee directed against the order of the Commissioner of Income Tax (Appeals)- 10, Kolkata passed u/s 143(3) of the Income Tax Act, 1961(the ‘Act’).
Ground nos. 1 and 2 are general in nature and do not require any specific adjudication. Hence these ground nos. 1 and 2 are dismissed as not pressed.
The assessee is engaged in the business of wholesale and retail of crockery and other kitchen ware. It filed its return of income on 20.09.2013 declaring total income of Rs. 17,33,850/-.
2 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 4. There was a survey in the assessee’s premises u/s 133A of the Income Tax Act, 1961. During the course of survey certain excess stock to the tune of Rs. 1.04 crores was found. The AO did not make any addition based on this excess stock or on account of undisclosed purchases. The AO took the opening stock purchases and sales, at figures stated by the assessee in its financial statement filed along with return of income and thereafter, he took the closing stock figure as found by the survey party during the course of survey in the place of the figure in the boos of financial statements and thereafter calculated the gross profit by drawing up a revised trading account. Such exercise resulted in gross profit rate of 40.14%. Thereafter he applied this gross profit rate of 40.14% to the total turnover figure declared by the assessee for the year and the difference was taken as undisclosed business income. Thereafter he made disallowances of expenditure claimed u/s 40(a)(ia) of the Act. Aggrieved the assessee carried the matter on appeal without success. Further aggrieved the assessee is before us on the following grounds:
That on the facts and in the circumstances of the case, the Ld. CIT (Appeals) was not justified and grossly erred in confirming the order assed by the AO., on account of addition of GP percentage to the tune of Rs. 1,31,46,752/- without considering the details and documents submitted during the course of assessment proceedings. 4. That on the facts and in the circumstances of the case, the Ld. CIT (Appeals) was not justified and grossly erred in confirming the order assed by the AO., on account of addition of difference in balances of sundry creditors to the tune of Rs. 1,27,434/ - as undisclosed particulars furnished without giving sufficient opportunity to the appellant. 5. That on the facts and in the circumstances of the case, the Ld. CIT (Appeals) was not justified and grossly erred in confirming the order assed by the AO., on account of addition of Rent payment for Office premises to the tune of Rs. 8,12,000/ - u/ s 40(a)(ia) of the IT Act, 1961. 6. That on the facts and in the circumstances of the case, the Ld. CIT (Appeals) was not justified and grossly erred in confirming the order assed by the AO., on account of addition of Rent payment for Godown premises to the tune of Rs. 7,00,000/- u/ s 40(a)(ia) of the IT Act, 1961.
3 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 7. That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) was not justified and grossly erred in confirming the order passed by the AO, on account of addition of Interest payment to the tune of Rs. 59,125/- u/s 40(a)(ia) of the IT Act, 1961.
The ld. Counsel for the assessee submitted that, the AO had estimated the profits without specifically rejecting the books of accounts though books could not produce before him. He vehemently contended that the percentage of profit adopted by the assessee as gross profit rate and net profit were highly excessive, exorbitant and unrealistic. He produced a chart of gross profit and net profit percentages declared by the assessee from the assessment year 2011-12 to the assessment year 2015-16 and submitted that the maximum net profit declared was 3.02%. He submitted that the net profit accepted by the AO in assessment order passed u/s 143(3) of the Act for the assessment year 2011-12 was 2.36% and for the assessment year 2012-13 was 2.41%. He submitted that for the assessment year 2014-15, and assessment year 2015-16 the return of income was processed only u/s 143(1) of the Act but the percentage of profit declared was 2.50% and 3.02%. . He contended that once the AO decides to estimate the profit, for whatever reason, then the law mandates that a reasonable and rational estimate has to be made. Taking 40.14% as gross profit rate, as per ld. counsel for the assessee is highly excessive, arbitrary and unreasonable. He argued that such a rate cannot be justified either by the standard of this line of business or by the consistent profit rate earned by the assessee.
Coming to the addition made on account of difference in balances of sundry creditors and disallowance u/s 40(a)(ia) of the Act, which is disputed from ground nos. 4 to 7, he submitted that once the book has not been relied upon and the AO has estimated income of the assessee as a percentage of the turnover, then separate additions on account of difference in the balances in the books, and or by invoking 40(a)(ia) or any other section does not arise. For this propositions, he relied on the judgment of the Hon’ble Andhra Pradesh High Court in the case of Indwell 3
4 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 Constructions vs. CIT reported in 232 ITR 776 (AP) and the in the case of CIT vs. Banwarilal Bansidhar reported in 229 ITR 229 (All).
He submitted a one page computation sheet, wherein, the trading account was redrawn by increasing the purchase during the year to the extent of excess stock taken by the AO as closing stock and keeping all the other figures as the same and thereafter computing the gross profit which was 6.23%. He prayed that net profit may be estimated at the rate of 2% of turnover.
The ld. DR on the other hand pointed out that the assessee had not produced books of accounts before the AO. He drew the attention of the Bench to the last line of the first paragraph of the assessment order as well as the second paragraph at page 2 of the assessment order and submitted that when the books of accounts, ledgers and other documents are not produced before the AO, he is bound to pass a best judgment order, wherein, the income of the assessee has to be estimated as a percentage of turnover. He submitted that this was a case where an addition should have been made u/s 69 of the Act, but the AO chose to estimate the profit @ 40.14% instead of adding purchases or closing stock. He relied on the order of the ld. AO as well as the Ld. CIT(A) and submitted that the same should be upheld, as the working of the AO bring to tax the undisclosed income.
In reply the ld. Counsel for the assessee submitted that the AO has not made any addition u/s 69 of the Act on account of undisclosed purchases or on account of excess stock and hence the issue is not before the Tribunal. He reiterated that the only issue is the percentage that has to be applied to the total turnover of the assessee for estimating income earned during the year and whether under such circumstances when income is estimated as a percentage of turnover, a separate disallowances of expenditure could be made. 4
5 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14
After hearing rival contentions, perusing the papers on record and order of the authorities below as well as case law cited we hold as follows:
The AO in the case on hand, has in effect rejected the books of accounts, as no books or ledgers were produced before him. He passed an order estimating the income of the assessee, as percentage of turnover as no books were produced by the assessee. The computation, based on which the income of the assessee was estimated by the AO is at page 2 of the assessment order.
On perusal of the same, we are of the considered opinion, that the percentage of 40.14% is highly excessive and unreasonable. When the closing stock is increased by the AO, the corresponding opening stock or purchases have to be increased as otherwise they cannot be a quantitative reconciliation of the opening stock, purchases, sales and closing stock. Thus on these facts, this computation cannot be upheld as fair and reasonable. The quantitative figures have also to be tallied.
The Ld. CIT(A) has not discussed any of these aspects in his order. When the AO has estimated the income of the assessee, as a percentage of turnover, the Ld. CIT(A) has wrongly stated at para 5 of his order, that the addition was made by the AO as unexplained amount on account of stock difference. This is factually incorrect. Hence we vacate this finding of the Ld. CIT(A). As we have no power of enhancement and as the issue of addition u/s 69 is not before us, we dismiss this agreement of the ld. DR.
The ld. DR could not rebut the argument of the assessee, that the estimation of the gross profit at 40.14% was highly excessive and unreasonable. As already stated, in order passed u/s 143(3) of the Act for the assessment year 2011-12 the net profit was
6 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 assessed as 2.36% and for assessment year 2012-13 the net profit was assessed at 2.41% by the AO.
For the assessment year 2010-11 the return was processed u/s 143(1) of the Act and the net profit was declared at 0.9%. For the assessment year 2014-15 the net profit was declared 2.90% and the return was processed u/s 143(1) pf the Act/ For the assessment year 2015-16 the return was processed again u/s 143(1) and the net profit was declared at 3.03%. For the year under consideration the net profit was assessed by the AO u/s 143(3) at 26.63%. As already stated, this is an excessive and unreasonable. Keeping in view the history of the case of the assessee, we direct the AO to assess the income of the assessee at 3.5% of the turnover, as in our view this would meet the interest in justice.
Coming to the separate disallowance made u/s 40(a)(ia) of the Act and for difference in sundry creditors when books are not relied upon, we find that the Hon’ble High Court of Andra Pradesh in the case of Indwell Constructions vs. CIT supra held as follows:
“The pattern of assessment under the Act is given by section 29 which states that the income from profits and gains of business shall be computed in accordance with the provisions contained in sections 30 to 43D. Section 40 provides for certain disallowances in certain cases notwithstanding that those amounts are allowed generally under other sections. The computation under section 29 is to be made under section 145 on the basis of the books regularly maintained by the assessee. If those books are not correct or complete, the Assessing Officer may reject those books and estimate the income to the best of his judgment. When such an estimate is made it is in substitution of the income that is to be computed under section 29. In other words, all the deductions which are referred to under section 29 are deemed to have been taken into account while making such an estimate. This will also mean that the embargo placed in section 40 is also taken into account. In the instant case, undoubtly, there was a big difference between profit earned with own capital and profit earned with borrowed capital and such a difference could have been taken into account by the Assessing Officer, while making an estimate. If the 6
7 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 Commissioner had set aside the estimate on the ground that the vital fact that the business was carried on with own capital and not with borrowed capital had been ignored by the Assessing Officer, there might not have been any difficulty in upholding that order. But, when he proposed to add back an exact item in the profit and loss account, he was relying on the rejected books which he could not do. There was also a further difficulty, if section 40 was to be taken into account even after making an estimate. When there are certain other deductions which are to be disallowed such as wealth-tax payment in section 40, it cannot be said that after making an estimate, the wealth-tax charged in the profit and loss account should again be added back to the profit. Therefore, no separate. addition representing the interest and remuneration paid to partners could be made to the income already estimated and assessed from contracts.
Similarly the Hon’ble Allahabad High Court in the case of CIT vs. Banwarilal Bansidhar supra held as follows:
All the three questions, referred to this court, revolve round the same controversy. The question for consideration is when no deduction was sought and allowed under Section 40A(3), was there any need to go into Section 40A(3) and Rule 6DDU). We see force in the view taken by the Appellate Tribunal that when the income of the assessee was computed applying the gross profit rate and when no deduction was allowed in regard to the purchases of the assessee, there was no need to look into the provisions of Section 40A(3) and Rule 6DDU). No disallowance could have been made in view of the provisions of Section 40A(3) read with Rule 6DD(j) as no deduction was allowed to and claimed by the assessee in respect of the purchases. When the gross profit rate is applied, that would take care of everything and there was no need for the Assessing Officer to make scrutiny of the amount incurred on the purchases by the assessee. 10. No law contrary to the view taken by the Tribunal has been shown by standing court.”
Respectfully following the same we allow the ground nos. 4,5,6 and 7.
Ground no. 8 is against the interest levied u/ 234B of the Act. This is consequential in nature.
8 ITA No.379/Kol/2017 M/s Punjab Glass Depot A.Yr.2013-14 19. Ground nos. 9 and 10 are general in nature and do not require any specific adjudication.
In the result, the appeal of the assessee is allowed in part.
Order pronounced in the Court on 18.05.2018
Sd/- Sd/- [S.S.Viswanethra Ravi] [ J.Sudhakar Reddy] Judicial Member Accountant Member
Dated : 18.05.2018
SB, Sr. PS Copy of the order forwarded to: 1. M/s Punjab Glass Depot, Parakh & Chowdhury, Chartered Accountants, 17, Dhan Devi Khanna road, 1st Floor, Kolkata-700054. 2. ITO, Ward-35(1), Kolkata, 110, Shanti Pally, Kolkata-107. 3..C.I.T.(A)- , Kolkata 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.