ACIT, CIRCLE-3, ASANSOL, ASANSOL vs. SHRI SHYAM CEMENT WORKS PVT. LTD., ASANSOL

This appeal by revenue is arising out of order of CIT(A), Asansol vide appeal No. 178/CIT(A)/Asl/Cir-3/Asl/12-13 dated 09.12.2013. Assessment was framed by ACIT, Circle-3, Asansol u/s. 143(3) of the Income Tax Act, 1961 for AY 2010-11 vide his order dated 19.12.2012.

Brief facts of the case are that the assessee is a company engaged in manufacturing of Cement. On 24.9.2010 they have filed they return of income for the Assessment Year 2010- 2011 declaring a total income of Rs.24,56,872/-. It was processed u/s 143(1) and was accepted on 30.8.2010. Subsequently it was selected for scrutiny. After receiving the submissions of the assessee and recording the statement u/s 131 of the Act and replies from the creditors in compliance with Section 133(6) of the Act, an order under section 143(3) of the Act was passed on 19.12.2012 making an addition of Rs.29,51,786 on account of alleged undisclosed purchase or raw materials, a sum of Rs.19,93,751/- on account of alleged undisclosed profit made on alleged suppressed sales, and levying interest under section 234B of the Act. Learned AO also initiated penalty proceedings under section 271(1)(c) of the Act, for furnishing inaccurate particulars of income.

Aggrieved by the said additions made by the AO, assessee carried the matter in appeal and the learned CIT(A) by way of impugned order, allowed the appeal and deleted the additions made by the AO.

Challenging the impugned order Revenue preferred this appeal before us on the following ground:

Argument of the learned DR is that the learned AO considered the abnormal increase in the electricity and raw material consumption in the unit of the assessee in the relevant year when compared to the earlier year vis a vis the study report of NCARI, and having analysed the above factors with reference to the statement of the Director of the assessee Company recorded u/s 131 of the Act, electricity consumption pattern, shortage of consumption of HDPE bags, non-compliance to notices issued to debtors etc learned AO estimated the out of book production, undisclosed purchase of raw materials and profits that must have arisen out of manufacture of 1678.86 MT of cement. Learned DR’s contention is that the additions made by the AO are based on record and without considering these factors learned CIT rushed to hold that the additions were made without any concrete finding that assessee fabricated accounts by inflating purchasing or by suppressing sale or by indulging in unaccounted trade. He further argued that the learned CIT(A) further erred in holding that there is no material or evidence on record to support the findings of the AO. For these reasons, he prayed to allow the appeal and to restore the order of assessment.

On the other side, argument of the learned AR is that, as a matter of fact, assessee explained all the queries raised by the AO satisfactorily, but the AO did not consider the entire material and evidence on record as whole, but he had picked up only such parts which support his conclusion to make additions. He vehemently supported the findings of the learned CIT(A) that electricity is one factor contributing to production, but electricity by itself cannot bring out a product. He further submitted that the AO failed to consider the fact that the fluctuation in the electricity consumption depends on the season and varies from monsoon to winter and summer. Lastly he submitted that without considering and rejecting the accounts of the assessee, it is not fair on the part of the AO to make additions basing on doubts, suspicion, conjectures and surmises. Arguing so, he prayed to dismiss the appeal.

Basing on the rival contentions, the point that arises for our consideration is whether the order of learned CIT(A) suffers any illegality or irregularity warranting interference by the Tribunal?

On the first aspect, as could be seen from record, the AO compared the electricity consumption of the assessee company for the year 2009-10 with the information to be found in the NCARI report. Since for the factories employing dry process for producing cement, the power consumption per Metric Ton was shown as between 110 to 150 Kwhs, he took average of these two figures which is 130 Kwh. He added 7.7% further appreciation considering other factors affecting manufacturing process and finally set the figure at 140 Kwh per MT. He also called for the details from the assessee on this aspect and found that for the Month of March, 2010 for producing one MT of cement, the consumption of electricity was 140.55 Kwh. He, therefore, has taken the figures relating to March, 2010 as a standard yardstick, because it commensurate with the figures of NCARI, to measure the variation in electricity consumption. Throughout his order he proceeded on this premise only and could find some support in the variation in the number of HDPE bags.

AO brushed aside the contention of the assessee that the power consumption varies with seasons, monsoon and winter requiring higher consumption for the additional process of drying up the slog, on the ground that the very process of manufacturing of cement requires the mixture of clinker, slag & gypsum to be sent to dryer and after drying up the mixture it will be sent to the magnetic ball mill for further process. His contention is that drying process is inherent in the manufacturing process itself; as such additional consumption for drying of slog is a redundant argument. However, he failed to notice the observations of NCAER in a report incorporated at page No 100-109 of the paper book vide page No 104 observed that a significant amount of energy may be needed to reduce moisture content and make the material ready for a dry kiln system in the Cement production processes. Learned CIT(A) noticed this fact while dealing with the aspect of fluctuations in the electricity consumption. Order of learned CIT reads that when this fact was brought to the notice of learned AO while calling for Remand Report, the claims were

Now coming to the question of variation in the number of HDPE bags, learned AO took into consideration the sales of cement during the year were 17992.250 MTs and closing stock was 150 MTs, put together it comes to 18142 MTs requiring 3,62,845 HDPE bags at the rate of one bag per 50 Kgs of cement. He observed that only 3,62,045 bags were consumed. Basing on this learned AO concluded that such missing 800 bags must have been used in out of record sale of the cement. On this point the explanation of the assessee is that the sale of finished goods required 3,59,845 bags, and out of 150 MTs of closing stock, only 110 MTs require 2200 number of bags whereas 40 MT of Silo is available in a loose form without the requirement of bags. According to the assessee the so called missing of 800 bags is attributable to this 40 MTs of loose Silo.

On this aspect the learned AO at paragraph (iv) on page 12 of his order observed that as per the entries in the production register produced by the assessee in the course of assessment proceedings, closing stock of 40 MT of cement was shown, and for packing the same 800 bags have been consumed, and therefore, it is not of Silo but in the bags. He further observed that the assessee consumed 3200 of such bags in the month of March, 2010 whereas no such consumption in the month of March, 2009. Learned AO, in paragraph (iii) in the starting line itself observed that on examination of stock of Portland cement for the month of March 2010 total inward of cement is 1175.500 MT and total outward cement is 1025.500 MT and the same was packed. This clearly shows that there is a difference of inward and outward to a tune of 150 MTs. Explanation of the assessee that the closing stock is 150 MTs is fitting into this observation of the learned AO. However according to assessee, Out of this 150 MTs, finished part is 110 MTs and loose form is 40 MTs. However, having observed the difference between the input and output of material, learned AO went on to compare the same with figures of last year, and in the last line of the paragraph, he observed that the explanation of the assessee that the production of 40MT on 31.3.2010 remained in Silo accounting for closing stock is not acceptable. Reason given by the learned AO are not impressive. These two observations of learned AO on the aspect - whether there is any closing stock or not, and if it is there whether it is in Silo or in bags - are contradicting each other. On the other hand, Assessee produced the extract of daily stock Register vide page Nos 172 and 173 of the paper book, in support of his explanation

On the aspect of variation between the statement of the Director of the company in respect of the ratio of raw material and the data submitted by them, learned AO observed that the Directed stated the ration at Clinker 42%, Slag 55% and Gypsum 3% whereas the data submitted by the assessee shows it to be Clinker 45.75%, Slag 51.53% and Gypsum 2.72%. In the notice issued on this account, learned AO while calling for the evidence aspect proceeded to why Rs.52,29,006/- should not be added under the head suppression of sale or the value of correspondence value of suppressed purchase of raw material. We are unable to understand how this variation in the mixture of raw material attracts any additional liability of tax over and above the figures to be found in the books of account maintained by the assessee. It is pertinent to note that the learned AO did not record anywhere in his order that he is not satisfied with the correctness or completeness of the accounts of the assessee or that the income has not been computed in accordance with the standards notified, so as to reject the accounts of the assessee. Without resorting to the verification of correctness or completeness of the accounts of the assessee, learned AO proceeded on the surmises and conjectures to conclude that these variations in the mixture of raw material ipso facto prove that there is undisclosed purchase of raw material. It is relevant at this juncture to refer to the proceedings under notice issued under section 133(6) of the Act.

Notices under section 133(6) of the Act were issued to Six persons. AO recorded that all such notices were returned unserved and drew an inference that only because the sales may be much higher or lesser than the claim of the assessee, the assessee did not furnish proper address of the debtors or that those are fake. Further discussion on this aspect proceeded in this back drop only. However, in the Remand Report the learned AO stated that notices to four persons were served and they sent replies. In respect of other two persons also assessee furnished full particulars. One Gita Ghosh one among the two unserved person responded to the learned AO along with the statement of transactions for 6 Shyam Cement Works Pvt. Ltd., AY 2010-11 the financial year 2009-10 and other details. Learned CIT considered these factors and observed that the observations of the learned AO have become meaningless on this aspect.

Learned AR relied upon a decision reported in St. Teresa”s Oil Mills Vs. State of Kerala 76 ITR 365 for the principle that accounts regularly maintained in the course of business have to be taken as correct, unless there are strong and sufficient reasons to indicate that they are unreliable. He placed reliance on CIT Vs Raghuraji Agro Industries 349 ITR 260 (All ), CIT Vs Dinesh Kumar (2005) 98 ttj (Jd) 695, CIT vs Sanjay Oil Cake Industries 197 CTR 521, CIT Vs Smt. Shakuntala Devi KhetanFor 352 ITR 484, Indore Malwa United Mills Ltd Vs. State of MP 60 ITR 41 and other decisions rendered by the Hon’ble Supreme Court and High Court to support his argument that there cannot be any addition until and unless it is proved that there had been purchases made outside the books of account or there had been excess consumption of fuel which was not recorded in the books of account. He drew our attention to a decision rendered by Hon’ble Andhra Pradesh High Court in N.Raja Pullaiah Vs. DCTO 73 ITR 224, for the principle that the best judgement assessment on the basis of consumption of electricity, without considering the similarity of circumstances in all respects, is bad in law and liable to be set aside.

On a careful consideration of the facts and the preposition of law on all the relevant aspects, we find that the reasoning of the learned CIT(A) in the impugned order is cogent and convincing. We accordingly find that the order of the learned CIT(A) does not suffer any illegality or irregularity so as to warrant interference by this Tribunal. Appeal is liable to be dismissed and the point is answered accordingly against the Revenue.

In the result Appeal of the Revenue is dismissed.