M/S GOLD TOUCH JEWELLERY PVT. LTD.,KOLKATA vs. ITO, WD-7(3), KOLKATA, KOLKATA

आदेश /O R D E R PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-16, Kolkata dated 28.01.2016. Assessment was framed by ITO Ward-7(3), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 29.12.2011 for assessment year 2009-10. The grounds raised by the assessee per its appeal are as under:- “1. For that the order of the Ld. CIT(A) is arbitrary, illegal an bad in law. 2. For that the Ld. CIT(A) erred in confirming the addition of Rs.14,79,873/- as under valuation of closing stock when the closing stock was properly valued the making charges on the goods which remained unsold were included while

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 2 valuing the closing tock and the same was valued in accordance with the applicable accounting standards and the practice followed from year to year. 3. For that the Ld. AO erred in adding back Rs.6,66,411/- when there was no payment of any such sum either in cash or in kind. The provisions of sec. 194C read with section 40(a)(ia) were not applicable. 4. For that the Ld. AO erred in disallowing depreciation of Rs.13,899/- when the cost of the furniture was debited in the books of account and depreciation was allowable in accordance with the provisions of the IT Act, 1961. 5. For that the order of the AO be modified and the assessee be given relief prayed for. 6.For that the assessee craves leave to add, alter or amend any ground before or at the time of hearing.” Shri S.M. Surana Ld. Advocate appeared on behalf of assessee and Shri Arindram Bhattacharjee, Ld. Departmental Representative appeared on behalf of Revenue. 2. First ground raised by assessee is general in nature and does not require any separate adjudication. 3. Next issue raised by assessee in Ground No.2 is that Ld. CIT(A) erred in confirming the order of Assessing Officer by sustaining the addition of ₹14,79,873/- on account of under valuation of closing stock. 4. Briefly the facts are that assessee is a private limited company and engaged in business of Gems and Jewellery. The assessee in its profit and loss account has claimed an expense of ₹14,79,873/- under the head “Karigar Making Charges”. During the course of assessment proceedings, AO observed that the karigar making charges have been incurred to convert the raw gold to prepare the finished jewellery items. Thus, the cost of karigar making charges needs to be included in the value of closing stock lying at the end of the year in terms of Accounting Standard 2 “Valuation of Inventories” issued by the ICAI. Accordingly, the AO disallowed the expenditure incurred on the karigar making charges and added to the total income of assessee. 5. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that it has already included making charges for ₹51,358/- in the valuation of closing stock lying at the end of year. The assessee further submitted that it has sold cost of jewellery for ₹97.40 crores against which manufacturing charges were incurred for ₹14.79 lacs only. However, Ld. CIT(A)

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 3 disregarded the contention of assessee and confirmed the order of AO by observing as under:- “I find no merit in the contention of the AR. The AO is justified in adding this as penalty the accounting practice of ICAI for the valuation of inventories. Moreover in such a huge total of Rs.97.40 crores, the addition of Rs.51,358/- as making charges by the assessee is clearly without merit. Hence, the addition of the AO is confirmed, and the ground of the assessee is dismissed.” Aggrieved by this order of Ld. CIT(A) assessee has come up in appeal before us. 6. Before us Ld. AR for the assessee filed paper book which is running from page 1 to 29 and submitted that karigar making charges was claimed for ₹14.79 lakh only during the year as evident from the audited financial statement which is placed on pages 1 to 23 of the paper book. The total value of stock on which karigar making charges ( Rs. 14.79 lacs) incurred comes to Rs. 97.40 crores and out of which the cost of jewellery sold represents an amount of ₹90.03 crores only. Therefore the cost of karigar making charges of Rs. 14.79 lacs should be allocated over total value of stock manufactured during the year i.e. Rs. 97.40 crores. It is also undisputed that out of total value stock of Rs. 97.40 manufactured during the year, a value of stock of Rs. 90.03 has been sold during the year. Thus the balance value of stock lying at the yearend comes to Rs. 7.22 crores only and as per the assessee the amount of karigar making charges pertaining to it has already been allocated while valuing the closing. Thus, the entire amount of karigar making charges cannot be disallowed. In our considered view the karigar making charges needs to be added in the valuation of closing stock which is lying at the end of the year. Accordingly, the assessee has done so by adding a sum of ₹51,358/- in the valuation of closing stock. On the other hand, Ld. DR vehemently relied on the order of Authorities Below. 7. We have heard the rival contentions of both the parties and perused the material available on record. In the instant case, the addition was made by AO on the ground that karigar making charges paid by assessee needs to be added in the valuation of closing stock as per the Accounting Standard-2 i.e. valuation of inventories issued by the ICAI. The action of the AO was subsequently confirmed by Ld. CIT(A)

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 4 The undisputed fact is that assessee during the year has shown cost of jewellery manufactured during the year for ₹97.40 crores. Thus, it is clear that the total karigar making charges have been incurred in relation to cost of jewellery manufactured i.e. 97.40 crores. Thus, the karigar making charges expenses corresponding to the jewellery sold should be debited to the profit and loss account. As per the Accounting Standard-2 issued by ICAI the direct expense incurred by assessee should be included to the extent pertaining to the stock lying at the end of the financial year. However, in the instant case, we observe that the Authorities Below has made the disallowance of the entire karigar making charges which is against the intent of Accounting Standard-2 issued by ICIA. In our considered view, the entire amount of karigar making charges incurred during the year cannot be disallowed rather it can be added to the extent of jewellery lying in the closing stock. Further, we also observe that assessee has already added a sum of ₹51,358/- in the valuation of closing stock and the same has not been disputed by the Authorities Below. In view of the above, we have no hesitation in reversing the order of Authorities Below in the light of above stated discussion. Consequently ground of assessee is allowed. 8. Next issue raised by assessee in Ground No.3 is that Ld. CIT(A) erred in confirming the order of AO by sustaining the disallowance of ₹6,66,411/- on account of non deduction of TDS u/s 194C of the Act. 9. During the course of assessment proceedings, AO observed that assessee has paid a sum of ₹6,66,411/- to the karigar in the form of wastage /loss of gold during manufacturing process. Therefore, the AO was of the view that assessee has incurred an expense of ₹6,66,411/- in kind by way of giving the wastage of gold to the karigar without deducting TDS. Thus, AO disallowed the karigar charges as discussed above and added to the total income of assessee. 10. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who confirmed the order of AO by observing as under:- “I find no force in the contention of the R. The AO has rightly taken wastage as per World Gold Council. The regarding use of the lost gold by the artisans. Hence, the addition of the AO worth s.6,66,411/- is confirmed and the ground of appeal is dismissed as the assessee has clearly failed to deduct GTDS u/s. 194C to these payments to the artisans.”

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 5 Being aggrieved by this order of Ld. CIT(A) assessee came in second appeal before us. 11. Before us Ld. AR stated that the provision of 194C of the Act is attracted where any sum has been paid by assessee to karigars in cash but in the instant case no sum has been paid to karigars. Therefore, there is no question of deducting any TDS on the amount of wastage of gold given to the karigars. Ld. AR for the assessee in support of his claim relied on the judgment / orders of Hon'ble courts and Tribunal which are reproduced below:- a) Jatia Investment Calcutta 206 ITR 718 (Cal) b) Kantilal Verma 52 ITD 412 (Pune) c) HH Rama Verma 187 ITR 308 at 310 (SC) d) Amon Bolu Rajesh 102 ITR 403 (AP) e) Saru Smelting Allahabad 116 ITR 766 (All) On the other hand, Ld. DR vehemently relied on the order of Authorities Below. 12. We have heard rival contentions and perused the material available on record. In the instant case it was observed by AO that the assessee is paying charges to the karigars in the form of loss of gold occurred in the process of manufacturing. Thus, it is clear that no cash payment was made by the assessee to the karigars. In such situations various courts have held that any ‘sum’ means only cash as mentioned above. As no payment has been paid in cash in the instant case thus in our considered view the liability for the deduction of TDS does not arise. In this connection, we find support and guidance from the case of HH Rama Verma Vs CIT 187 ITR 308 wherein the Hon’ble Supreme Court has held as under : The language used in section 80G(2)(a ) is clear and unambiguous. The use of the expression 'any sums paid' contemplates payment of an amount of money. One of the dictionary meanings of the expression 'sum' means any indefinite amount of money. The context in which the expression 'sums paid by the assessee' has been used makes the legislative intent clear that it refers to the amount of money paid by the assessee as donation. The Act provides for assessment of tax on the income derived by an assessee during the assessment years; the income relates to the amount of money earned or received by an assessee. Therefore, for purposes of claiming deduction from income-tax under section 80G(2)(a), the donation must be a sum of money paid by the assessee. The plain meaning of the words used in the section does contemplate donations in kind. Since the expression and language used in section 80G(2)(a) is plain and clear, it is not open to the courts to enlarge the scope by its interpretative process founded on the basis of the object and purpose underlying the provisions for granting relief to an assessee. Further, in view of the conflicting opinions expressed by the various High Courts, the Parliament intervened and added Explanation 5 to

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 6 section 80G by the Finance Act, 1976. After the insertion of the aforesaid Explanation, there cannot be any doubt that, for purposes of claiming deduction, only cash amounts which may have been donated would be taken into account. No doubt this provision is not retrospective in nature; none the less it indicates the legislative intent behind section 80G(2)(a ) even prior to its amendment. Therefore, the assessee's claim was rightly rejected.

There is no ambiguity in the facts of the case that no sum has been paid by assessee to the karigars. Thus in our considered view in the given facts & circumstances the question of invoking the provision of u/s 194C of the Act does not arise in the instant facts of the case. Therefore we reverse the order of Authorities Below. Consequently ground raised by assessee is allowed. 13. Last issue raised by assessee in ground No.4 is that Ld. CIT(A) erred in confirming the order of AO by sustaining the disallowance of depreciation for ₹13,899/- on account of cost of furniture. 14. The assessee has claimed depreciation of ₹13,899/- on the furniture. The AO during the course of assessment proceedings requested the assessee to furnish the details to justify whether the furniture is owned by assessee or not. The assessee in compliance thereto submitted that the furniture belongs to the director of the assessee- company which has been taken on lease and licence agreement for a period of 9 years. Therefore, the depreciation was claimed in the books of assessee in respect of such furniture. However, the AO disregarded the claim of assessee on the ground that no evidence was furnished by it for justifying that the furniture in question was constructed by the assessee itself. Therefore, the amount of depreciation was disallowed and added to the total income of assessee. 15. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who confirmed the order of AO by observing as under:- “The AO has made the addition as bills of Rs.13,8999/- were not furnished despite various opportunities. Again the AR in the written submission has been silent on the bills, but has argued that it may be allowed as no business is possible without furniture. The AO is right in disallowing Rs.13,899/- as no bills are provided. Hence, the addition of the AO is confirmed and the appeal is dismissed on this ground also.” Aggrieved by this order of Ld. CIT(A), assessee has come up in appeal before us.

ITA No.327/Kol/2016 A.Y. 2009-10 M/s Gold Touch Jewellery Pvt. Ltd. vs. ITO Wd-7(3) Kol. Page 7 16. At the outset, before us Ld. AR has not brought anything on record suggesting that impugned furniture was owned by assessee. Thus in absence of any documentary evidence we do not find any reason to interfere in the order of Ld. CIT(A). We uphold the same. Consequently, ground of assessee is dismissed. 17. In the result, assessee’s appeal stands partly allowed. Order pronounced in open court on 26/12/2017 Sd/- Sd/- (�या%यक सद'य) (लेखा सद'य) (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp, Sr.P.S )दनांकः- 26/12/2017 कोलकाता / Kolkata आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-M/s Gold Touch Jewellery Pvt.Ltd., 101, Vardaan Market, 25A, Camac Street, Kolkata-16 2. ��यथ�/Respondent-ITO, Ward-7(3), P-7, Chowringhee Square, Aayakar Bhawan Kolkata-69 3. संबं,धत आयकर आयु-त / Concerned CIT 4. आयकर आयु-त- अपील / CIT (A) 5. .वभागीय �%त%न,ध, आयकर अपील�य अ,धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड2 फाइल / Guard file. By order/आदेश से, /True Copy/ Sr. Private Secretary Head of Office/DDO आयकर अपील�य अ,धकरण, कोलकाता