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Income Tax Appellate Tribunal, C Bench, Mumbai
Before: Shri D.T. Garasia & Shri Jason P. Boaz
These are cross appeals, by the assessee and Revenue, directed against the order of the CIT(A)-12 Mumbai dated 19.03.2013 for A.Y. 2005-06.
The facts of the case, briefly, are as under: - M/s. Pranay Sheet Metal Stampings Ltd. 2.1 The assessee, a company engaged in the business of manufacture of stampings for automobile parts from sheet metal on job work basis, filed its return of income for A.Y. 2005-06 on 26.10.2005 declaring total income of `18,64,99,600/-. The case was taken up for scrutiny and the assessment completed under section 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dated 21.11.2007 wherein the income of the assessee was determined at `53,19,02,970/- under normal provisions of the Act, in view of the following additions/disallowances: - (i) Scrap sales `10,39,34,238/- `10,34,675/- (ii) Modvat on capital goods `21,23,387/- (iii) Octroi `1,32,01,934/- (iv) Out of direct expenses `13,31,28,883/- (v) On account of receipts as per TDS certificates (vi) Under section 43B `41,94,161/- `6,50,00,000/- (vii) Under section 68 (viii) Under section 69C `15,22,929/- (ix) Interest under section 36(1)(iii) `3,95,121/- (x) Press hire charges `31,72,000/- `74,79,561/- (xi) Provisions `14,00,000/- (xii) Miscellaneous expenses `20,38,552/- (xiii) Staff Welfare expenses `19,27,273/- (xiv) Interest on differential duty `22,89,974/- (xv) Depreciation `25,60,682/- (xvi) Depreciation on Scrap Conveyor Belt Book profits were computed at `31,44,49,142/- under section 115JB of the Act.
Aggrieved by the order of assessment dated 21.11.2007 for A.Y. 2005-06, the assessee preferred an appeal before the CIT(A)-12, Mumbai. The learned CIT(A) disposed off the appeal vide the impugned order dated 19.03.2013, allowing the assessee partial relief.
Both Revenue and the assessee, being aggrieved by the order of the CIT(A)-12, Mumbai dated 19.03.2013 for A.Y. 2005-06, have filed cross appeals which we will dispose off in seriatum.
M/s. Pranay Sheet Metal Stampings Ltd. B. Assessee’s appeal in for A.Y. 2005-06 5. In its appeal, the assessee has raised the following grounds: - “
1. On the facts and in the circumstances of the case and in law, the learned CIT (Appeal) erred in confirming addition/disallowance of Rs.10,39,34,238/- made by the learned Assessing Officer. The reasons adduced by the learned Assessing Officer for making the addition and by the learned CIT (A) for confirming the same are factually and legally incorrect, unwarranted and untenable. The learned CIT (A) also erred in upholding the view of the learned Assessing Officer that, for like reasons, the amount in question was a provision for a liability other than an ascertained liability for the purposes of s 11 5JB of the Act. The addition/disallowance be deleted.
2. The learned CIT (A) erred in ‘dismissing for statistical purposes’ the Ground regarding claim for depreciation on plant and machinery capitalised during AY 2005-06 instead of allowing the Ground by accepting the contention of the Appellant that Cenvat credit relating to such capitalised amount was correctly accounted for by the Appellant. The claim of the Appellant be allowed.
3. On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming disallowance of hire charges of Rs.31,72,000 for the various reasons adduced by the learned AO and confirmed by the learned CIT(A). The disallowance be deleted.
4. On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming disallowance of Rs.74,79,561 when the same was not warranted both on facts and in law. The disallowance be deleted.
5. On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming disallowance of depreciation of Rs.22,89,974/- in respect of new building and scrap conveyor belt as claimed by the Appellant. The learned CIT (A) erred in confirming the view of the learned AO that the Appellant had not been able to provide proof about installation and first user of the two fixed assets in question. The claim of the Appellant be allowed.”
6. Additional Evidence 6.1 In the course of appellate proceedings before the Tribunal, the assessee through its learned A.R. vide letter dated 23.05.2016, has made an application for admission of additional evidence in paper book pages 1 M/s. Pranay Sheet Metal Stampings Ltd. to 42, it seeks to put forward in support of various claims made in the grounds raised in this appeal. In this application praying for admission of additional evidence, the reasons/explanation put forward as to the circumstances why the same could not be filed before the authorities below is as under: - “At the outset Your Honors may note that the additional evidence basically comprises of contemporaneous accounting records and supporting documents. There is also a current dated letter from Mahindra & Mahindra Limited confirming the state of affairs in respect of Ground No. 1 in the said appeal. From the assessment order, Your Honours will notice that one Mr. Sunil Shetty, designated as Manager Accounts, attended the assessment proceedings from time to time. It will also be noticed that the said Sunil Shetty also appeared before the CIT (Appeals). The assessee merged with Mahindra Ugine Steel Co. Ltd. (MUSCO), a listed public company, with effect from 1st April 2005, though, however, the scheme of merger was approved by the Bombay High Court in February 2006. The assessment proceedings for the impugned assessment year commenced during the time that the assessee had merged with MUSCO. We are informed that initially, one Mr. Siju George, Sr. Manager - Accounts, working with in Pranay appeared before the Assessing Officer. However, Mr. George left the organisation sometime in late 2007. In the last few days of Mr. Georges, Mr. Sunil Shetty, who was Manager Accounts in M(JSCO, appeared before the AO and facilitated conclusion of the assessment proceedings on the basis of the material on record submitted by Mr George. It may please be appreciated that Mr Sunil Shetty was not working with Pranay and therefore had no factual background about the matter. Having participated in the assessment proceedings as stated above, Mr Sunil Shetty also appeared before the CIT(A) since he was working with MUSCO in which Pranay had merged. He proceeded on the basis of material submitted by Mr George as available in the files left behind by him. As stated above, by that time Pranay had merged with MUSCO resulting in further disruption of sources of information. When we were instructed for the first time after receipt of notice of hearing before the Tribunal, we did extensive inquiries and realized that certain contemporaneous basic accounting documents which, though available, were not submitted to either of the lower authorities by either Mr George or Mr Sunil Shetty. In fact this extensive search resulted in the assessee seeking adjournments on earlier occasions.
M/s. Pranay Sheet Metal Stampings Ltd. It may not be out of place to mention that MUSCO has since merged with Mahindra CIE Limited. These documents merely substantiate the facts which were already canvassed before the lower authorities. These documents do not throw up new facts but only support the facts already stated before the lower authorities. In the above circumstances, in the interests of justice, we would pray to your Honours to admit the additional evidence as any inadvertent mistake on the part of its employee should not cause prejudice to the assessee.” 6.2 The learned D.R. for Revenue opposed the admission of additional evidence put forth by the assessee, but however submitted that if the same is admitted, then the additional evidence alongwith the issues or grounds in respect of which it is filed, be restored to the files of the authorities below for fresh adjudication after consideration of the same. 6.3 We have heard both the parties and carefully considered the assessee’s application dated 23.04.2016 for admission of additional evidence in paper book (pages 1 to 42); which is admittedly not produced before the authorities below, and the other material on record. We find that the additional evidence sought to be filed is in respect of ground No. 1 (pages 1 to 28), Ground No. 2 (pages 29 to 35), ground No. 4 (pages 36 to 41) and ground No. 5 (page 42) which were raised by the assessee in its appeal. From a perusal of the orders of the Assessing Officer (AO) and learned CIT(A), it appears to us that the additions/disallowances made, in respect of these grounds raised, were made primarily because the assessee either failed to furnish explanation and/or complete details/documents or evidence to prove its claims. In the light of the explanation and reasons put forth in its application for admission of additional evidence, for not filing these evidences before the authorities below being due to inadvertent mistakes of its employees and taking into consideration the fact that the basis on which the additions/disallowances have been made and sustained in their orders by the authorities below was for non production of details/ documents or evidence to support its claims, we are of the considered view that the interest of equity and justice would be served if the additional evidence put forth by the assessee is admitted for consideration in its M/s. Pranay Sheet Metal Stampings Ltd. appeal. In our view no loss would be caused to Revenue by admission of the additional evidence for consideration, as only the legitimate taxes due on correct income will be recovered. We hold and direct accordingly.
Grounds where additional evidence is filed by assessee are as under: - 7.1 Ground No. 1 – Addition on account of scrap credit - `10,39,34,238/- Additional evidence filed in respect of this ground is placed at pages 1 to 28 of the paper book. 7.2 Ground No. 2 – Depreciation on Plant and Machinery – Cenvat credit denied Additional evidence filed is placed at pages 29 to 35 of the paper book. 7.3 Ground No. 4 – Disallowance of Provisions – `74,79,561/- Additional evidence filed in respect of this ground is placed at pages 36 to 41 of the paper book. 7.4 Ground No. 5 – Disallowance of Depreciation – `22,89,974/- Additional evidence filed in respect of this ground is placed at page 42 of the paper book. 7.5 As laid out in paras 6.1 to 6.4 of this order (supra), additional evidence admitted has been filed in respect of grounds 1, 2, 4 and 5 of this appeal. Since admittedly the same were not filed before the authorities below for consideration, in the interest of equity and justice, we restore these grounds No. 1, 2, 4 and 5 and issues raised therein alongwith the additional evidence to the file of the learned CIT(A) for consideration, examination and fresh adjudication thereon after affording both the assessee and the AO adequate opportunity of being heard and to file details/submissions, rebuttals as required. We hold and direct accordingly. Consequently, grounds 1, 2, 4 and 5 of assessee’s appeal are treated as allowed for statistical purposes.
Ground No. 3 – Disallowance of hire charges – `31,72,000/- 8.1 In this ground the assessee assails the action of the learned CIT(A) in confirming the disallowance of press hire charges made by the AO.
M/s. Pranay Sheet Metal Stampings Ltd. Before us, it was contended that hire charges paid to Mahindra Ugine Steel Company Ltd. (Mahindra) is purely a business expenditure and hence allowable under section 37(1) of the Act. 8.2 Per contra, the learned D.R. for Revenue strongly supported the orders of the authorities below, since no details in this regard were filed before them to establish and justify that the assessee’s claim was in order. It is submitted that in this appeal also, except for reiterating its contention that the same is purely a business expenditure under section 37(1) of the Act, no details have been filed to establish the claim. 8.3 We have heard the rival contentions and perused and carefully considered the material on record. In the course of assessment proceedings, the AO noticed that the assessee had claimed expenditure of `31,72,000/- as press hire charges to M/s. Mahindra Ugine Steel Co. Ltd., a connected concern and required the assessee to furnish the cost, date of purchase and year-wise depreciation claimed, hire charges received by ‘Mahindra’ and place of first use of asset. Since the details called for were not filed, the AO disallowed the assessee’s claim. On appeal, the learned CIT(A) observing that no primary details or explanations were filed to support the assessee’s claim regarding payment to ‘Mahindra’, upheld the disallowance made by the AO. Before us also, except for making the claim that the said expenditure is purely business expenditure allowable under section 37(1) of the Act, no explanations were made or details/evidences filed to support and justify the assessee’s claim. In this view of the matter, we have no reason to interfere with the findings of the authorities below and uphold the same. Finding the ground No. 3 raised by the assessee devoid of merit, the same is dismissed.
In the result, the assessee’s appeal for A.Y. 2005-06 is partly allowed for statistical purposes. Revenue’s appeal in for A.Y. 2005-06 10. In this appeal Revenue has raised the following grounds: - "1. On the facts and circumstances of case and in law the Ld. CIT(A) erred in deleting the disallowance of Rs.1,32,01,934/- in respect M/s. Pranay Sheet Metal Stampings Ltd. of direct expenses by admitting fresh evidence during appellate proceedings and without giving opportunity to AO to rebut the same. The Ld.CIT(A) also failed to appreciate the fact that the assessee has failed to substantiate the expenditure during the course of assessment proceedings and also failed to provide the books of account in support of claim, after given sufficient opportunity by the Assessing Officer.
2. On the facts and circumstances of case and in law the Ld. CIT(A) erred in holding that the above disallowance is based on suspicion and surmises without appreciating the fact that if the details are not provided by the assessee, the A.O. made reasonable disallowance on best judgement on proportionate basis which is the best course to be resorted to in such circumstances as upheld by number of decisions.
3. On the facts and circumstances of case and in law the Ld. CIT(A) erred in deleting the entire addition made to turnover to the tune of Rs.13,31,28,883/- without appreciating the fact that the assessee failed to reconcile the difference to the extent of Rs.59,26,254/- between the receipt as per TDS Certificates and the receipt as declared in the profit and loss account.
4. On the facts and circumstances of case and in law the Ld. CIT(A) erred in deleting the disallowance of Rs. 20,38,552/- in respect of staff welfare expenses by admitting fresh evidence and without giving opportunity to AO to rebut the same. The Ld. CIT(A) also failed to appreciate the fact that the assessee has failed to substantiate the expenditure during the course of assessment proceedings and also failed to provide the books of account in support of claim, after given sufficient opportunity by the Assessing Officer.
5. On the facts and circumstances of case and in law the Ld. CIT(A) erred in holding that the above disallowance is based on suspicion and surmises without appreciating the fact that if the details are not provided by the assessee, the A.O. made reasonable disallowance on best judgement on proportionate basis which the best course to be resorted to in such circumstances as upheld by number of decisions.
6. The appellant prays that the order of Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored.
7. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary."
Grounds 1&2 – Disallowance of Direct Expenses – `1,32,01,934/- Grounds 4&5 – Disallowance of Staff Welfare Expenses – `20,38,552/- 11.1.1 In these grounds, Revenue assails the order of the learned CIT(A) in deleting the above referred disallowances of direct expenses of M/s. Pranay Sheet Metal Stampings Ltd. `1,32,01,934/- and staff welfare expenses of `20,38,552/- by admitting fresh evidence during appellate proceedings and acting on them to give the assessee relief, without affording the AO adequate opportunity of being heard in the matter for rebuttal of the same which is in violation of Rule 46A of the I.T. Rules, 1962 (in short ‘the Rules’). It is further contended that the learned CIT(A) erred in holding that the aforesaid disallowances were made on suspicion and surmises, without appreciating the fact that the assessee had failed to furnish books of account and other details to substantiate its claim for being allowed the aforesaid expenditure and that the disallowances made by the AO were reasonable, in the given circumstances where the assessee failed to furnish the details called for. 11.1.2 According to the learned D.R., in the order of assessment, the AO has clearly observed that the assessee in assessment proceedings had failed to furnish figures of production, month-wise details of major consumables, expenses were unverifiable due to non furnishing of details; details in respect of generation of scrap were not filed, staff welfare could not be reconciled to the claims made in profit and loss as details were not furnished, etc. The learned D.R. drew our attention to the relevant portions of the impugned order of the learned CIT(A), where, after observing that the AO had made the aforesaid disallowances for non furnishing of details, the learned CIT(A), taking submissions from the assessee, which constituted additional evidence, proceeded to delete those disallowances going by the statement of the assessee that details and books of account were filed before the AO and on the ground no specific finding was rendered as to why these expenses were to be disallowed. According to the learned D.R., when it is amply evident from the order of assessment that the AO was constrained to make the said disallowances due to non furnishing of details called for or books of account, it is strange to say the least that the learned CIT(A) has deleted the additions taking on record the assessee’s submissions and acting on them; going by the assessee’s averment that all details were furnished and books of account were produced before the AO; which is not factually correct. Such action by the learned CIT(A) is in clear violation of the provisions of Rule 46A of the Rules, as is evident that no M/s. Pranay Sheet Metal Stampings Ltd. opportunity of being heard or to rebut the assessee’s submission was allowed to the AO. In view of this, it is prayed that the order of the learned CIT(A) deleting the disallowances of direct expenses and staff welfare expenses be set aside for fresh consideration after giving adequate opportunity to the AO. 11.2 Per contra, the learned A.R. supported the orders of the learned CIT(A) in deleting the aforesaid disallowances of direct expenses and staff welfare expenses. 11.3.1 We have heard the rival contentions and perused and carefully considered the material on record. It is clear to us from a perusal of the order of assessment that the AO was constrained to make the said disallowances of direct expenses and staff welfare expenses for the recorded reason that the assessee failed to file the required details called for in order to substantiate its claim for having incurred the said expenditure. We find, that on appeal, the learned CIT(A) after observing that complete details called for were not filed before the AO, took submissions constituting additional evidence from the assessee and acted thereon to allow the assessee relief; stating that books of accounts, etc. were produced before the AO who could not point out any specific defect and deleted the disallowances stating they were made by the AO on suspicions and surmises. This averment by the learned CIT(A), in our view, is not borne out by the material on record. At the same time, we observe that the assessee has filed additional evidence in its appeal in all those issues which were held against it. Be that as it may, it is amply clear that the learned CIT(A) deleted the additions after taking submissions/ additional evidence on these issues from the assessee and acting on them without affording the AO adequate opportunity of being heard and to rebut the claims of the assessee, which is in violation of the principles of natural justice as laid out in Rule 46A(3) of the Rules. 11.3.2 In our view, Rule 46A of the Rules has a direct bearing on the controversy. Therefore, it is necessary for us to take note of this rule. It reads as under: - M/s. Pranay Sheet Metal Stampings Ltd. “46A. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer]; or (c) where the appellant was prevented by sufficient cause from producing before the [Assessing Officer] any evidence which is relevant to any ground of appeal; or (d) where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [Deputy Commissioner (Appeals)] for, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission. (3) The [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)) shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been al/owed a reasonable opportunity— (a) to examine the evidence or document or to cross- examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.] 11.3.3 A perusal of this Rule would suggest that Sub Rule (1) puts an embargo upon the assessee to seek permission for producing additional evidence either oral or documentary. Such evidence can only be permitted to be produced, if conditions enumerated in sub clause (a) to (d) are M/s. Pranay Sheet Metal Stampings Ltd. available. The CIT(A) has to record in writing as to why he had admitted the additional evidence. Sub Rule (3) contemplates that if additional evidence is taken on record, then it cannot be considered on merit, unless an opportunity to the AO is given to comment on the evidence or documents or to cross examine the witness produced by the assessee. Apart from that the AO would be given an opportunity to produce any evidence or documents or any evidence in rebuttal of the additional evidence produced by the assessee. Sub Rule (4) is an exception to all other sub rules. This rule authorizes the CIT(A) to direct any part for production of any documents or examination of any witness to enable her to dispose of the appeal or for arriving at a just conclusion. In the light of the above, we find that the learned CIT(A) failed to give adequate opportunity to the AO of being heard in the matter and the conditions enumerated in Sub Rule (3) remained uncomplied. In this view of the matter we set aside the order of the learned CIT(A) deleting the disallowances on account of direct expenses and staff welfare expenses and restore the matter to the file of the CIT(A) for fresh consideration and adjudication thereon, only after affording the AO adequate opportunity of being heard and to rebut the details/evidence/ submissions put forward by the assessee in this regard. We hold and direct accordingly. In the result, grounds 1, 2, 4 and 5 of the Revenue’s appeal are treated as allowed for statistical purposes.
12. Ground No. 3 – Non-reconciliation of turnover – `13,31,28,883/- 12.1 In this ground, Revenue contends that the learned CIT(A) erred in deleting the entire addition made to turnover without appreciating the fact that the assessee failed to reconcile the difference to the extent of `59,26,254/- between the receipts as per TDS certificates and receipts as declared in the Profit & Loss account. It is submitted by the learned D.R. that the said addition to turnover was made since no reconciliation between the two was filed before the AO. The learned D.R. submitted that admittedly the learned CIT(A) has deleted the said addition by taking additional evidence/information from the assessee and acted thereon to allow relief to the assessee without affording the AO adequate opportunity of being heard in the matter and to rebut the said evidences, as required M/s. Pranay Sheet Metal Stampings Ltd. under Rule 46A(3) of the Rules which is in violation of the principles of natural justice. In this regard, the attention of the Bench was drawn to para 7.2 of the impugned order of the learned CIT(A) wherein it is recorded that the assessee had submitted the relevant documents, etc. clearly evidencing that the learned CIT(A) had acted on additional evidence in violation of the mandate of Rule 46A of the Rules. It is submitted that in view of the above, the order of the learned CIT(A) on this issue be set aside and this issue be taken up for de novo consideration after affording the assessee adequate opportunity of being heard in the matter. 12.2 Per contra, the learned A.R. of the assessee supported the order of the learned CIT(A) on this issue. 12.3.1 We have heard the rival contentions and perused and carefully considered the material on record. On an appreciation/perusal of the orders of the authorities below, it is seen that no reconciliation of the difference in turnover as per TDS certificates and receipts recorded in the Profit & Loss account was filed by the assessee before the AO leading to the said addition. In para 7.2 of the impugned order, the learned CIT(A) records that the assessee submitted the relevant documents and information in this regard and allowed the assessee relief by deleting the said addition to turnover, evidently without affording the AO adequate opportunity of being heard and to rebut the same. In this factual matrix of the matter, we are of the view that the learned CIT(A) has violated the principles of natural justice as mandated under Rule 46A(3) of the Rules. For the reasoning rendered by us in paras 11.3.2 and 11.3.3 of this order (supra), we find that the learned CIT(A) having failed to give adequate opportunity to the AO of being heard in the matter, the conditions enumerated in sub-Rule (3) of Rule 46A remained uncomplied with. We, therefore, set aside the order of the learned CIT(A) in deleting the addition on account of unreconciled turnover (i.e. between TDS certificates and turnover shown in the Profit & Loss account) and restore the matter to the file of the learned CIT(A) for fresh consideration and adjudication thereon, only after affording the AO adequate opportunity of being heard and to