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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ : NEW DELHI
Before: SHRI G.D. AGRAWAL & SHRI KULDIP SINGH
(PAN : AIHPS1137P) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Ankit Gupta, Advocate REVENUE BY : Shri S.K. Jain, Senior DR Date of Hearing : 19.01.2017 Date of Order : 30.01.2017
O R D E R PER KULDIP SINGH, JUDICIAL MEMBER :
The Appellant, Shri Prabhat Kumar Singhal (hereinafter referred to as ‘the assessee’) by filing the present appeal sought to set aside the impugned order dated 04.03.2016, passed by the Pr. Commissioner of Income-tax, Muzaffarnagar under section 263 of the Income-tax Act, 1961 (for short ‘the Act’) qua the assessment year 2012-13 on the grounds inter alia that :-
“1. That the notice issued under Section 263 of the Income Tax Act, 1961, and the order passed under said Section are illegal, bad in law and without jurisdiction.
That the notice by the CIT under Section 263 does not show that the Assessing Officer committed any error in passing the assessment order under Section 143 (3). Therefore, the jurisdiction assumed by the CIT under Section 263 is illegal and without jurisdiction and is liable to be quashed.
3. That the order passed under Section 143 (3) by the Assessing Officer is neither erroneous nor prejudicial to the interest of Revenue and as such the order passed by the CIT order under Section 263 in cancelling the assessment is illegal and bad in law.
4. That the CIT has failed to appreciate that all the issues referred in his order under Section 263 have been duly considered and the view taken by the Assessing Officer is a possible view. All necessary enquires/investigations relating to all the issues referred in the order of the CIT under Section 263 were made and partly accepted by the Assessing Officer while framing the assessment Under Section 143(3). Thus, the notice issued and the impugned order are beyond the preview of Section 263 and hence, the order passed under Section 263 is liable to be quashed.
5. That the CIT has agreed with the submissions of the Appellant that the Assessing Officer has taken the view after considering all the aspects. Moreover the view taken by the Assessing Officer is a possible view. Hence, the CIT has erred in law and on facts in setting aside the assessment to be redone afresh.
6. That, the CIT has failed to appreciate, that, the assessee has duly complied with all the queries filed during the assessment proceedings and also verified the books of accounts and make the appropriate Adhoc addition to cover the possible leakages. Therefore, the view taken by the assessing officer can not be held as erroneous and prejudicial to the interest of the revenue, hence, the assumption of jurisdiction U/s 263 is illegal, bad in law and without jurisdiction.
7. That the observations of the CIT are based on surmises and conjectures and on the basis of the different view taken by the Assessing officer after framing the Assessment Order Section 143(3) and do not afford any legal justification to the findings given.
8. That the proceeding under Section 263 are initiated at the instance of Assessing officer and the order passed by the CIT is clearly without application of mind as it refer to many irrelevant issues hence the order under section 263 is liable to be quashed.
9. That the CIT have erred in not providing proper and adequate opportunity to Appellant to place the material on record and the impugned order passed is against the principle of natural of justice.
10. That all the facts and circumstances of the case and the material available on record have not been properly considered by the CIT while passing the order under Section 263. The impugned order is illegal, arbitrary and bad in law.
The Appellant craves leave to add, amend, alter and or modify the grounds of appeal of the said appeal.”
2. Briefly stated facts of this case are : assessee is into the trading of Iron, Steel and Cement and declared his income at Rs.3,34890/- which was put to scrutiny and the ld. Assessing Officer, after making addition of Rs.65,000/- on account of disallowance of freight and uploading charges, electricity expenses, rent expenses etc. for lack of bills and vouchers, completed the assessment under section 143(3) of the Act at Rs.3,99,890/-.
However, CIT by invoking the provisions contained u/s 263 of the Act declared the assessment order passed by the AO u/s 143 (3) erroneous insofar as prejudicial to the interest of the Revenue and set aside the same to be passed afresh.
Feeling aggrieved, the assessee has come up before the Tribunal by way of challenging the impugned order passed by CIT u/s 263 of the Act by filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Ld. AR for the assessee challenging the impugned order contended inter alia that the impugned order passed by the ld. CIT is erroneous and bad in law as the AO has passed the assessment order by raising necessary queries and perusing books of account, audited balance sheet, which have never been rejected; that the assessee is a whole-seller and the loss shown in the month of March is recorded in the stock register prepared on day-to-day basis which has been duly perused by the AO during assessment proceedings; that the AO has obtained the datewise quantity details of the stock purchased and sold during the year under assessment; that the assessee has also produced cash book, ledger, sales and purchase record along with supporting vouchers, to work out the gross profit and net profit of the business as requisitioned by AO during assessment proceedings; that the quantitative details of opening stock, purchase, sales and closing stock has been mentioned in the tax audit report i.e. Form No.3CD and relied upon the decisions rendered by the Hon’ble jurisdictional High Court cited as CIT vs. Rashid Export Industries – 66 Taxmann.com 38 (All.) and CIT vs. Krishna Capbok (P.) Ltd. – 60 Taxmann.com 243 (All.).
However, on the other hand, ld. DR for the Revenue to repel the arguments addressed by ld. AR contended that though the AO has raised numerous queries during assessment but has failed to answer or investigate the same; that a wholesaler can never be a purchaser in case of business of trading of sale but, in the instant case, the assessee has sold the steel to a particular party at a lower rate and then again purchased the same from that party in the month of March at higher rate; that the assessment order passed by AO is erroneous and prejudicial to the Revenue and relied upon the decisions rendered by Hon’ble High Court cited as Commissioner of Income Tax vs. Raja Industries (2012) 340 ITR 344 (P&H) and Commissioner Of Income Tax vs. Active Traders Pvt. Limited 214 ITR 583.
From the arguments addressed by the parties to the present appeal, orders passed by the authorities below and case law relied upon, the first question arises for determination in this case is :-
“as to whether the assessment order dated 28.02.2014 passed by the Assessing Officer is erroneous and prejudicial to the interest of Revenue conferring powers upon Ld. CIT u/s 263 of the Act to pass afresh order enhancing or modifying the assessment or directing the fresh assessment.”
Undisputedly, CIT has formed the opinion by going through the assessment order passed u/s 143(3) of the Act that the AO has failed to carry out the requisite enquiries and investigations by obtaining datewise quantitative details of stock purchased and sold by the assessee necessary to work out the low gross profit and net profit rate declared in the return of income and issued the show cause notice to the assessee u/s 263 of the Act. It is also not in dispute that the assessee purchased steel from M/s. Girnar Trading Company during the period under assessment at higher rate and sold the same to the same party on the same day or the preceding or succeeding day at lower rate, which is tabulated as under for ready perusal :-
Purchase and Sale party : Girnar Trading Co. Purchase Sale Date Qty in Value in Rate per Date Qty in Value in Rate per MT Rs. MT MT Rs. MT 20.09.2011 9.02 3,60,223 39936 17.09.2011 7.23 284226 39312 11.12.2011 5.01 40,976 40976 12.12.2011 5.225 211111 40404 12.12.2011 5.3 41,080 41080 17.12.2011 4.85 195960 40404 40404 19.12.2011 5.2 40,975 40975 20.12.2011 3.81 153940 40404 5.955 240606 21.12.2011 5.34 40,976 21.12.2011 40976 40404 3.225 130303 29.12.2011 5.8 41,183 41183 08.01.2012 9.05 334597 36972 09.02.2012 8.82 38,271 38271 08.02.2012 7.375 277654 37648 15.02.2012 5.24 37,855 37855 11.02.2012 6.08 228900 37648 17.02.2012 8.8 38,272 38272 19.02.2012 4.99 189939 38063 22.02.2012 8.88 37,960 37960 19.02.2012 4.99 189939 38063 25.02.2012 8.81 37,648 37648 23.02.2012 6.515 246632 37856 .03.2012 4.52 1,76,750 39103 02.03.2012 4.2 157903 37595 04.03.2012 4.56 1,78,788 39207 03.03.2012 9.035 339680 37596 07.03.2012 4.47 1,75,725 39312 11.03.2012 9.27 348515 37596 12.03.2012 5.51 2,15,463 39103 11.03.2012 8.45 308459 36504 16.03.2012 4.44 1,74,545 39311 13.03.2012 8.77 319228 36400 17.03.2012 4.41 1,74,283 39519 14.03.2012 8.25 298584 36192 22.03.2012 4.45 1,76,327 39624 18.03.2012 6.27 229532 36607 22.03.2012 4.45 1,76,327 39624 20.03.2012 9.065 344108 37960 25.03.2012 5.3 2,08,905 39416 24.03.2012 6.165 234024 37960 28.03.2012 4.33 1,69,320 39103 25.03.2012 4.21 160249 38063 29.03.2012 9.065 329966 36400 30.03.2012 36400 9.06 329784 31.03.2012 36400 20.18 734552
From the bare perusal of the findings returned by ld. CIT particularly as to the sales and purchase of steel by the assessee from Girnar Trading Company tabulated in the preceding paras, we are of the considered view that the ld. CIT has rightly held the order passed by the AO u/s 143(3) as erroneous and prejudicial to the interest of the Revenue for the following reasons :-
i. That bare perusal of the assessment order running into less than 1 page goes to prove that the AO has failed to examine quantitative details of stock purchased and sold by the assessee datewise in order to work out the lower GP / NP rate declared in the return of income for which the case was selected for scrutiny; ii. That during the assessment proceedings, the AO has requisitioned books of account along with bills and vouchers on 20.02.2014 which, the assessee had produced on 24.02.2014 and then assessee produced cash book, ledger, purchase voucher, sale bill, books and expenses vouchers on 27.02.2014 but has never made critical analysis of the same as is apparent form the assessment order but merely mentioned in the order sheet dated 27.02.2014 that the entire record produced by assessee was test checked; iii. That merely writing that cash book, ledger, sale books etc. have been “test checked” does not mean that the AO has perused the entire record requisitioned by him to work out the GP / NP rate nor any such findings are there in the assessment order that for such and such reason, he has accepted the business result of the assessee; iv. That it is also a matter of record that during assessment proceedings, the assessee has not produced stock register before the AO to reconcile with the GP /
NP result as shown by the assessee; v. That the contention of the assessee that the low
GP/NP shown during the year under assessment is due to the fact that assessee is engaged in wholesale trading, is not tenable for the reason that in case, the assessee is into wholesale trading of the steel, he is required to purchase the steel from a manufacturer not from any other wholesaler. But, in the instant case, multiple transactions have been noticed by the ld. CIT as tabulated in the preceding para 8 wherein the assessee has claimed purchase at higher rate and sale on the same day or preceding or succeeding day at a lower rate, which makes all the sale and purchase transactions of assessee not reliable without complete scrutiny of the stock register by the AO; vi. That purchase and sale transactions of the assessee with Aadi Enterprises, Akshat Enterprises, Girnar
Trading Co., Isha Industries, Shikhar Trading Co.,
Sparsh Steel and Vikas Iron Store having purchased at higher rate and sale on the same day or next day on lower rate shows sign of circular transactions; vii. That the sale and purchase of the assessee with Girnar Trading Company as tabulated in preceding para 8 apparently shows that those transactions have been shown in the books of account having purchased at higher rate and sold on the lower rate on the same date or on the next date is merely sham transactions, hence, unreliable. But the AO has failed to examine all these facts as is evident from the assessment order itself; viii. That ld. CIT while referring to the sale and purchase transactions of the assessee with Girnar Trading
Company as tabulated in preceding para 8 has rightly held that, “the trading result shown by the assessee in his return of income are based on stock register which is not reliable, hence liable to be rejected.” ix. That the judgment cited as CIT vs. Krishna Capbok (P.) Ltd. (supra), as relied upon by the assessee, is not applicable to the facts and circumstances of the case for the reason that though certain queries were raised by the AO but he has miserably failed to investigate the same nor he has applied his mind. Even otherwise, when the stock register necessary to compute the trading result has not been produced before the AO and as such, the question of raising such queries does not arise. x. That judgment cited as CIT vs. Rashid Export Industries (supra) is also not applicable to the facts and circumstances of the case because the AO has merely accepted the trading result of the assessee without making critical analysis of the stock register; xi. that the assessee by getting into circular transactions has purchased the steel at higher rate and sold the same at lower rate to the same party on the same date or next date, particularly in the month of March; xii. that no doubt gross profit / net profit cannot be determined on the basis of assumptions and presumptions without rejecting the books of account but, in the instant case, the AO has erroneously not analyzed the accounts necessary to examine the trading results and now sought to be analyzed by the ld. CIT vide impugned order.
In view of what has been discussed above, finding no illegality or perversity in the impugned order passed by the ld. CIT, present appeal filed by the assessee is hereby dismissed.
Order pronounced in open court on this 30th day of January, 2017.