DEPUTU COMMISSIONER OF INCOME-TAX vs. M/S. ENDRESS + HAUSER FLOWTEC (INDIA) P.LTD.,, AURANGABAD

From the above grounds, it is evident that all the grounds revolve

around the penalty levied by the AO u/s.271(1)(c) of the Act for the A.Y.

2008-09.

is engaged in the business of manufacturing and trading of flow

measuring instruments, components, parts and accessories. Assessee

filed the return of income on 02-09-2009. During the assessment

proceedings, AO made addition of Rs.4,74,100/- an expenditure debited

to the Profit and Loss Account on account of increasing the authorised

capital from Rs.13.50 crores to Rs.20.26 crores. Further, AO also made

addition of Rs.55,96,427 u/s.10B of the Act. Thus, at the end of

assessment proceedings, the AO determined the assessed income at

Rs.10,84,48,957/-. Penalty proceedings u/s.271(1)(c) are also initiated

separately for concealment of particulars of income and levied

penalty of Rs.17,23,306/- @100% of tax sought to be evaded.

penalty to Rs.5,65,685/- by holding as under :

“5.1 . . . . . . .The penalty provision was to provide remedy for loss of revenue for which the element of ‘wilful’ concealment was not essential. It is crystal clear that the appellant company had acted in a malafide way and had filed return of income showing inaccurate particulars of income. If it’s case had not been selected under scrutiny, it would have escaped away with evasion of tax. In view of the above facts, I hold that the AO was right in levying penalty u/s.271(1)(c) of the I.T. Act in respect of excessive claim u/s.10B on income from other sources. However, the minimum penalty @100% of tax sought to be evaded with reference to false claim of Rs.16,63,780/- u/s.10B works out to Rs.5,65,685/-. I therefore direct the AO to reduce the quantum of penalty from RS.17,23,306/- to Rs.5,65,685/- . The first and third grounds of appeal are therefore partly allowed. The third ground of appeal pertaining to violation of principles of natural justice does not appear to be of any consequence as the appellant has been provided sufficient opportunity by the CIT(A) and Hon’ble Pune Tribunal. This ground of appeal is accordingly dismissed.”

the Tribunal with the aforesaid grounds.

Counsel for the assessee raised an oral ground (legal issue) and

submitted that the AO initiated the penalty proceedings on one limb

and levied the penalty on another limb of section 271(1)(c) of the Act.

Ld. Counsel submitted that such penalty is not sustainable in law and

therefore, prayed for quashing the penalty order. In support of this

legal ground, he relied on various decisions of Pune Benches of the

Tribunal and the judgment of Hon’ble jurisdictional High Court in the

case of CIT Vs. Shri Samson Perinchery as well as the judgment of

Hon’ble Karnataka High Court in the case of CIT Vs. Manjunatha

Cotton and Ginning Factory.

the AO.

the Revenue and considered the decisions relied on by the Ld. Counsel

for the assessee. We find the AO vide assessment order dated

27-12-2011 has initiated the penalty proceedings holding as under :

“5. . . . . . . . . . Therefore, penalty proceedings u/s.271(1)(c) are initiated separately for “concealment of particulars of income.”

Further, the AO vide penalty order dated

24-03-2014 has levied the penalty recording the following satisfaction:

“9. I am satisfied that the assessee has furnished inaccurate particulars of income and made itself liable for levy of penalty u/s.271(1)(c) of the Act, 1961. Accordingly, order u/s.271(1)(c) of the I.T. Act, 1961, levying penalty of Rs.17,23,306/- is passed.”

Therefore, on the issue of satisfaction of the AO, we find the AO

did not have clarity of thought and AO suffered from ambiguity in his

mind with regard to the applicable limb of clause (c) of section 271(1) of

the Act to the facts of the case. Therefore, we find the penalty order of

the AO falls short of legal requirement on the issue of recording of

satisfaction. This view was already taken by the Pune Bench in a series

of cases. The manner of initiating and levying of penalty without

making reference to the specific limb of clause (c) is unsustained. AO is

under obligation to specify the correct limb at the time of initiation as

well as at the time of levy of penalty. Therefore, the penalty levied by

the AO is unsustainable on technical grounds. This view of ours get

strength by the judgment of Hon’ble jurisdictional High Court in the

case of CIT Vs. Shri Samson Perinchery as well as the judgment of

Hon’ble Karnataka High Court in the case of CIT Vs. Manjunatha

Cotton and Ginning Factory (supra).

Tribunal in the case of Sachin Manohar Deshmukh Vs. ACIT – ITA

No.3767/Mum/2016, dated 23-03-2018 has dealt with an identical

issue and quashed the penalty order of the AO. The operational para

No.12 of the order of the Tribunal is extracted here as under :

“12. We have given a thoughtful consideration to the issue before us, and after deliberating on the facts are of the considered view that now when the A.O after recording his satisfaction had initiated the penalty proceedings in the body of the assessment order for furnishing inaccurate particulars and concealment of income, therefore, putting the assessee to notice and calling upon him to explain as to why penalty may not be imposed on him under Sec. 271(1)(c) for concealment of income or furnishing of inaccurate particulars of income, followed by imposing of penalty under Sec. 271(1)(c) in his hands for „furnishing of inaccurate particulars of income‟, can in no way be construed as having fairly put the assessee to notice as regards the default/defaults for which penalty was sought to be imposed in his hands. We are of the considered view that a failure on the part of the A.O to clearly put the assessee to notice as regards the default/defaults for which penalty under Sec. 271(1)(c) is sought to be to be imposed on him, has to be visited with and accorded the same treatment as in a case where the A.O had failed to strike off the irrelevant default in the ‘Show cause’notice,

because, in both the situations the assessee is not informed and rather is left guessing of the default/defaults for which he is being proceeded against for. We thus in the backdrop of our aforesaid observations are of a strong conviction that as the A.O had clearly failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default/defaults for which he was being proceeded against, therefore, are of the considered view that the penalty under Sec. 271(1)(c) of Rs.12,14,140/- imposed by the A.O in clear violation of the mandate of Sec. 274(1) of the Act, cannot be sustained. We thus not able to persuade ourselves to subscribe to the imposition of penalty by the A.O, therefore, set aside the order of the CIT(A) who had upheld the same. The penalty of Rs.12,14,140/-imposed by the A.O under Sec.271(1)(c) is quashed in terms of our aforesaid observations.”

In view of the above discussion, we hold that the orders of AO/

CIT(A) are required to be set-aside on the legal ground of recording of

satisfaction by the AO. We therefore direct the AO to delete the penalty.

Accordingly, all the grounds raised by the assessee are allowed.

C.O.No.09/PUN/2018 – By Assessee (Arising out of ITA No.949/PUN/2016)

that the issues raised by the assessee in the Cross Objection and the

issues raised in the appal ITA No.996/PUN/2016 are same. Therefore,

adjudication of the Cross Objection becomes an academic exercise.

Accordingly, the Cross Objection filed by the assessee is dismissed as

academic.

We shall now take up the cross appeals on merits of additions for

the A.Y. 2010-11.

ITA No.949/PUN/2016 – By Revenue ITA No.996/PUN/2016 – By Assessee A.Y. 2010-11

same are extracted here as under :

“1. On the facts and in the circumstances of the case, the Ld.CIT(A), Aurangabad has erred in deleting the addition of Rs.5,05,18,770/- made on account of additional production allowing deviation from consumption of raw material upto 20% from minimum raw material consumed in production. 2. On the facts and in the circumstances of the case, the Ld.CIT(A), Aurangabad has erred in stating that the AO has rejected the book results u/s.145(3) of the I.T. Act without pointing out any material discrepancy in the books of account or in the purchases and sales recorded by the assessee or brought any evidence on record to suggest that the assessee was actually indulging in suppressed sales, even though when the assessee has not submitted any details to explain the excess electricity consumption.”

extracted here as under :

“On facts and circumstances of the case and in law “1. The Ld. AO has erred in making and the Ld.CIT(A)-1, Aurangabad has erred is upholding the disallowance of exemption/deduction u/s.10B of the Act with respect to certain business income. 2. The Ld. AO has erred in making and the Ld.CIT(A)-1, Aurangabad has erred in upholding the addition u/s.41(1) of the Act of Rs.18,20,051/- under the pretext of non-genuine creditors.”

appeal by assessee, Ld. Counsel for the assessee submitted that the

assessee is a company engaged in the business of manufacturing and

trading in flow measuring instruments, components parts and

accessories. Assessee filed the return of income on 08-10-2010

declaring total income of Rs.2,56,65,706/-. During the course of

assessment proceedings, AO held that the assessee made the additional

production to the extent of 643.02 Metric Tonnes worth of

Rs.5,05,18,770/-. The discussion given in Para No.3.2 of the

assessment order is relevant. Thus, the AO rejected the books of

account and made addition of Rs.5.05 crores (rounded off). Further,

the AO also denied the claim of deduction u/s.10B of the Act

amounting to Rs.20,53,859/-. This claim relates to receipts from

interest income from fixed deposits/deposits, sale of scrap and other

miscellaneous business receipts. Assessee treated them as business

receipts. However, the AO denied the deduction claimed u/s.10B of the

Act on these receipts.

relating to additional production worth Rs.5.05 crores (rounded off).

CIT(A) held that the said addition constitutes the addition made on

surmises and estimations and granted relief to the assessee. Further,

on the issue of allowability of deduction u/s.10B of the Act, CIT(A) held

that the deduction u/s.10B is allowable in respect of sale of scrap and

other receipts. However, the CIT(A) upheld the denial of deduction

u/s.10B in respect of interest earned from fixed deposits.

is in appeal before the Tribunal. Further, assessee is also aggrieved

against the finding of CIT(A) who confirmed the AO’s argument that the

books of account of the assessee is unsustainable.

suppressed/additional production, Ld. DR for the Revenue relied on the

orders of the AO. In reply, Ld. Counsel for the assessee brought out

relevant facts and submitted that there is no evidence whatsoever to

demonstrate that the assessee has indulged in such activity.

Mentioning that it is only mere calculations and estimations without

having an iota of evidence, Ld. Counsel brought our attention to the

tables mentioned by the AO in the assessment order and submitted for

confirming the order of CIT(A). He also read out the relevant lines from

the contents of Para No.5 of the CIT(A) to demonstrate that it is a case

of mere estimations having no evidence whatsoever to demonstrate the

allegation of unaccounted production/sales outside the books of

account.

submissions on this issue and the same are extracted here as under for

the sake of completeness :

“(i) There is nominal variation in consumption of raw material used in production of finished goods. The Assessee Company has consumed entire raw material in production of finished goods and has accounted for whole of the goods produced either as sale or finished goods. (ii) Further the assessee respectfully submits that it is a multinational company of good repute and all the transactions are recorded in books of accounts are genuine and supported with documentary evidences. The Company had carried the documents asked for verification during the course of scrutiny. The Company has consumed all the material in production and the same is recorded in books of accounts, further as and when the material is dispatched sales are recorded in books of accounts and profit is determined accordingly. (iii) There is no evidence on record brought by the Assessing Officer which proves the fact of suppression of sales or increase of raw material prices.

(iv) The Assessing Officer has rejected the books simply based on consumption figures being excessive in certain months without going into depth of the same. No specific defects having been pointed out in books of account. The working of AO is a hypothetical working based on one month's data without bringing on record any defect or discrepancy and without any basis. (v) The CIT (A) has allowed this ground of appeal.”

revenue and the contents of Para No.5 and find the AO arrived at the

additional production of 743.02 MT merely based on the surmises. No

evidence is found regarding the production of raw-material,

consumption of electricity or any other method to demonstrate the

allegation of additional production. Further, we have gone through the

relevant lines from the said paragraph 5 and find it relevant to extract

the same for the sake of completeness :

“5. . . . . . . . .On careful consideration of the facts and circumstances in the present case, I find it quite baffling to note that suppressed production of Rs.5,05,18,770/- has been worked out by the AO without conducting enquiry of any sort or bringing any evidence on record that the appellant company had actually indulged in suppressed sales. It is not in dispute that the appellant company has maintained complete books of account which are duly audited u/s.44AB of the Income Tax Act

and Tax Audit Report in Form No.3CD was also filed. The AO has not pointed out any discrepancy in the regular books of account including purchase register, sales register and other records etc maintained by the appellant company. As per schedule 15 of notes to the audited accounts, quantitative details were maintained in respect of raw materials, finished products & other products. The AO has not pointed out any discrepancy in such quantitative details maintained by the appellant company. If the AO was of the opinion that there was substantial consumption of raw material then nothing stopped him for conducting enquiries in this regard. Similarly no assessee can be expected to maintain the day to day electricity consumption register, day to day raw material consumption register and day to day production records. The AO has worked out additional production in Metric Tonnes as evident from page 4 of the assessment order whereas the appellant company had given the figures of consumption as well as production in numbers. By no stretch of imagination, the flow-meters and related accessories could have been measured in Metric Tonnes as done by the AO. The appellant company is manufacturing the flow meters as per the requirement of the customers. Thus the finished products of the appellant company are customized or tailor made. The various raw materials consumed by the appellant company include covers, flowtubes, housing, housing post, meter body, sensors and power supply. Similarly the finished products are also of different types namely Promag, Promass, Prowirl and Pro sonic. Since the finished products are tailor-made, the consumption of raw materials like covers, flowtubes, sensors etc. will vary for each product. There cannot be fixed consumption of flowtubes, sensors, covers for various type of flowmeters. For example if a customer wants to have protection against heat, chemicals, moisture or corrosion then number of covers for such a flowmeter will be more. Similarly if a flowmeter ordered by a customer has to record even a minute variation in flow, then it will require more sensors. Similarly if the fuse & circuits are also required to be protected then the flowmeter will require more covers. Sometimes in a flowmeter, certain parts are not required to be exposed then also it will require more covers. The flowmeters are also of different types namely electromagnetic, coriolis, vortex or ultrasonic each working on different principle. Hence there can't be a fixed consumption of raw material for each unit of final product as assumed by the AO. Further the appellant has maintained quantitative details in respect of various raw materials in numbers. The AO on the contrary has worked out average consumption of raw materials at 22.85 per unit which is not possible in such line of business where the finished products have to be made as per the requirements of the customers i.e. customized. The appellant company has been exporting such flowmeters to South Africa, Australia, Malaysia and Thailand. Further the domestic sales are also to the government undertakings such as HPCL, IOCL, BPCL & NMDC and to the reputed companies namely Wockhart, Cipla, Reliance, Asian Paints, Grasim, Atul etc. The exports of Rs.76,93,29,593/- are approximately 70% of total sales thereby implying that the domestic sales are 30% of total sales. It is not the case of the AO that the suppressed production was actually exported because such exports out of books of account are not recognized either by RBI or by Custom Authorities. Similarly the AO has not given a categorical finding that such flowmeters constituted a part of domestic sales. On the contrary, the counsel of appellant has furnished copy of VAT Return filed for the year under reference. It is seen that total sales as per Form 704 stood at Rs.112,03,99,069/-. The sales as per Audited accounts were Rs.110,62,38,638/- after excluding sale of capital assets, sale of scrap, CST on sales, VAT on capital assets, sales and scrap, other sales & service tax. The net sales after reducing excise duty of Rs.3,00,84,605/- were shown at Rs.107,61,54,033/-. Out of above exports stood at Rs.76,93,29,593/- & domestic sales were at Rs.30,68,24,440/-. The counsel of appellant has also furnished copies of

orders passed by the Deputy Commissioner, Aurangabad dated 27.06.2014 wherein the sales duly returned by the appellant had been accepted and refund of Rs.1.64 crores was granted to it. This being the case, the other Government Authorities namely VAT officer had not found any discrepancy in the sales recorded by the appellant company. The AO on the other hand, has worked out suppressed sale on the basis of month wise comparison of raw material consumption and then applied a mathematical formula to work out additional production. Even the higher consumption of electricity could not be a basis for working out the suppressed production. It was held by the Hon'ble Pone Tribunal in the case of ITO Vs. Balaji Seeds & Processing Pvt. Ltd. in ITA No.1182/PN/2010 dated 26.04.2012 that for suppression of sales, there should be something on record to suggest that the assessee had received any extra money over and above what had been shown in the audited books of account. In the cited case, the AO had noted that the units of electricity consumed per ton of Copra were comparatively higher than that of last year and yield percentage had also fallen down. On the basis of an estimate, suppressed sales were worked out at Rs.9,85,800/-. On the other hand, the assessee had argued that major quantity of Copra purchased during the year was of low and inferior quality. Therefore it took more time to extract the oil and crush the Copra. It was held that the suppressed production could not be worked out by applying any mathematical formula as per thought and mind of the AO. Similarly in the case of SRJ Peety Steel Pvt. Ltd. (137 TTJ 627), one of the reasons for rejecting the books of account by the AO was inconsistent electricity consumption. In this regard, the stand of the assessee company was that the AO had simply taken the lowest electricity consumption for a month in the whole year and treated the production in that month as the correct production and then proceeded to arrive at the production figure by multiplying the production in the books by the ratio of production to the electricity consumption for the month in which electricity consumption was minimum. However the method of computing the so-called suppressed production was not based on cogent reasons. The AO had gone by supposition but not by actual detection which was not justified. The entire method in this regard was based on pre-supposition and lacked scientific basis. The AO had failed to examine the entire manufacturing process carried out by the assessee company. He had not gone into the quality of raw materials, nor had he bothered to take the type of technology used by the assessee company. The AO had also not taken strength from comparable case of similarly placed situation. Therefore the Hon'ble Pune Tribunal held that having rejected the books of accounts of the assessee for all the years under consideration, the AO devised a statistical formula on the basis of electricity consumption that was applied uniformly in order to work out certain production and resultant concealed income for each year under consideration. The AO could not substitute the same by cogent reasoning. He had simply taken the lowest electricity consumption for a month in the whole year and treated the production in that month as the correct production and then proceeded to arrive at his production figure by multiplying the production in the books by the ratio of production to the electricity consumption for the month in which electricity consumption was minimum. The method of computing the so-called suppressed production was not justified in absence of sound basis for same. The consumption of the electricity for the manufacturing of mild steel ingots/billets depended on various factors like quality of raw material which was the major input, voltage of the supply, power interruptions, mechanical and electrical breakdowns and the chemical composition of the liquid metal which had to be finally cast into ingots/billets. The AO failed to appreciate these facts and did not attempt to establish a direct nexus between the production and electricity consumed for the manufacture of round/TMT bars and arrived at a conclusion that there was an excess consumption of electricity resulting in suppressed production and alleging that the assessee company had indulged in unaccounted production. It was finally held that each year of the assessment was independent and evidences found

relating to assessment year 2006-07 could not have an adverse impact on the assessments of the assessee company from the assessment years 2000-01 to 2005-06. Therefore, rejection of books for these years purely on the ground that there had been divergence in the consumption of electricity and application of section 144 was not at all justified. Accordingly, the impugned additions were deleted. These decisions are squarely applicable to the facts and circumstances of the present case. Respectfully following the above decisions, I hold that the AO had absolutely no basis to adopt consumption of raw material at 22.85 per unit and applying the same to the various months to compute additional production/suppressed sales at Rs.5,05,18,770/- for the year under reference. Further the appellant company is selling its final products through an associate concern namely Endress-Hauser (India) Pvt. Ltd., Bombay and no direct sales are being made. The various factors as submitted by the appellant company did have an impact on the production and could not be brushed aside as done by the AO.”

Considering the elaborate reasoning given by the CIT(A) on this

issue, we are of the opinion that the order of CIT(A) on this issue is fair

and reasonable and therefore, it does not call for any interference on

this issue. Accordingly, the grounds raised by the Revenue are

dismissed.

No.1, we find adjudication of legal issue raised vide Ground No.2 by the

Revenue becomes an academic.

We shall now take up the cross appeal by the assessee.

ITA No.996/PUN/2016 – By Assessee

u/s.10B of the Act in respect of interest of Rs.9,70,026/- earned from

fixed deposits and interest of Rs.1,46,862/- from other deposits and

Rs.9,36,971/- on account of miscellaneous income. The assessee has

treated the said income as business income and claimed deduction

u/s.10B of the Act. CIT(A) relying on the judgment of Apex Court in the

case of Pandian Chemicals Ltd. 262 ITR 278, Liberty India 317 ITR 218

and CIT Vs. Sterling Foods 237 ITR 579 denied the claim of the

assessee.

appeal before the Tribunal.

Ld. Counsel for the assessee filed the following submissions:

“The AO has reduced following as income from other sources instead of income from business or profession :

Sr.No. Particulars Amount Rs. 1 Interest on Bank deposits 9,70,026 2 Interest on other deposits 1,46,862 3 Sale of scrap 9,03,823 4 Miscellaneous Business 33,148 income Total 20,53,859

The last two items of receipts are from business hence considered by CIT Appeal however the first two being interest on deposits were not considered. To that extent deduction u/s.10B was recomputed and not allowed. The assessee in earlier two years, i.e. A.Y. 2007-08 and 2008- 09 has not contesting/not pressed the same.

this issue, we find the order of CIT(A) is fair and reasonable and does

not call for any interference. Accordingly, Ground No.1 raised by the

assessee is dismissed.

AO invoking the provisions of section 41(1) of the Act in respect of

balances lying with the sundry creditors. During the assessment

proceedings, AO issued notice u/s.133(6) in respect of 7 creditors and

their letters were returned ‘unserved’. In view of the assessee’s failure

to discharge the onus, AO proceeded to make the said additions.

Details are discussed in the order of CIT(A) in Para Nos.8 and of his

order. CIT(A) also confirmed the said addition relying on the decision in

the case of Ishrawati Devi Vs. ITO 298 ITR AT 313 and another decision

in the case of Uplaksh Metal Industries Vs. CIT 177 Taxman 298.

that the above addition made by the AO is premature as the AO has not

granted proper opportunity to put up his case properly before the AO.

Therefore, Ld. Counsel for the assessee prayed for remanding this issue

to the file of AO. In this regard, Ld. Counsel filed the following written

submissions :

“(1) The addition has been made since the balance confirmations are not produced and the creditworthiness and genuineness could not be proved. (2) The letter to parties was sent by Department for balance confirmation and we understand the notice went unserved. (3) All the parties whose credit balances are appearing and which has been considered as income, are regular suppliers of the company. The creditors balance is arising out of purchase of credit materials from these parties. Purchase bills have been produced during course of hearing. The entire purchases have been accepted in the assessment. Therefore, the purchase price that has remained unpaid at the year end cannot be considered as not genuine. By supply of material itself creditworthiness of the parties stands established. (4) Even today the company is dealing with these creditors. (5) The CIT(A) sustained the addition since the assessee could not reconcile the closing credit balances of such parties.”

Counsel for the assessee for remanding the issue to the file of AO is

considered favourably. Assessee is directed to file the required

evidences to demonstrate the credit balances of the sundry creditors. It

goes without saying that AO shall grant reasonable opportunity of being

heard to the assessee in accordance with set principles of natural

justice. Accordingly, Ground No.2 raised by the assessee is allowed for

statistical purposes.

statistical purposes.

Order pronounced in the open court on this 23rd day of May, 2018.

Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) �याियक �याियक सद�य �याियक �याियक सद�य सद�य /JUDICIAL MEMBER लेखा सद�य लेखा लेखा सद�य लेखा सद�य सद�य / ACCOUNTANT MEMBER सद�य

पुणे Pune; �दनांक Dated : 23rd May, 2018 सतीश

आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order forwarded to : अ�ेिषत

अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. 3. The CIT(A)-I, Aurangabad 4. CIT- I, Aurangabad िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B Bench” Pune; 5. गाड� फाईल / Guard file. 6.

आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार

स�यािपत �ित //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune