Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI D. KARUNAKARA RAO & SHRI RAM LAL NEGI
सुनवाई की तायीख / Date of Hearing : 06.04.2016 घोषणा की तायीख /Date of Pronouncement : 27.04.2016 आदेश / O R D E R PER D. KARUNAKARA RAO, AM: There are four appeals and two Cross Objections under consideration involving two assessment years 2004-05 and 2005-06. Since, the issues raised in these appeals are inter-connected / identical in both the assessment years, therefore, for the sake of convenience, they are clubbed, heard together and disposed of in this consolidated order. Appeal wise adjudication is given in the following paragraphs of this order.
I. Appeals for the AY 2004-05
For the AY 2004-05, there are two cross appeals and one Cross Objection (CO) under consideration. Appeal and C.O.No.27/M/2011 are filed by the assessee and appeal ITA No.3572/M/2010 is filed by the Revenue.
Grounds of appeal raised in (By assessee) read as under:-
1. The Ld CIT (A) erred in directing the AO to make addition of gross profit of 8.56% on the alleged unaccounted cash sales of Rs. 1,84,27,700/- to M/s. Anoop Exports as against the deletion of entire sale proceeds of the alleged transactions merely on the basis of a statement given by the broker one Shri Rikabchand Srimal (Jain) through whom the alleged transactions were alleged to be done, thereby confirming the addition of Rs. 15,77,411/- on notional basis.
2. The Ld CIT (A) erred in making an addition on account of undisclosed profits in hands of the appellant when no incriminating material was found relating to the alleged transaction in the course of search proceedings carried out at the premises of the appellant.
3. The Ld CIT (A) failed to appreciate that since no incriminating material was found, there was no direct nexus between material found in the course of search at appellant’s premises as well as other material gathered by AO from extraneous source, the addition confirmed by the CIT (A) may be directed to be deleted.” Grounds of appeal raised in ITA No.3572/M/2010 (By Revenue) read as under:-
1. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in holding that the amount of unaccounted sales by itself cannot represent income of the assessee thereby restricting the addition on account unaccounted sales to the gross profit ratio for the assessment year under consideration.
2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred / failed to consider the fact that normal rules of gross profit cannot be applied to unaccounted sale transactions as the factor of unaccounted investment in purchases would also be required to be added. Grounds of Cross Objection raised in CO.No.27/M/2011 (By assessee) read as under:-
1. The Ld CIT (A) failed to appreciate that the notice u/s 153A dated 27/11/2006 and assessment completed u/s 143(3) r.w.s 153A dated 30/13/2009 is bad in law as the alleged addition of Rs. 1,84,27,700/- is on the basis of search and seizure operation carried on 29.9.2004 in the case of M/s. Anoopchand Trilochand wherein certain alleged diary was seized, therefore, the notice u/s 153A of the Act issued for making the addition on basis of earlier search of third party is bad in law.
2. Without prejudice to above the respondent was never provide the copies of the alleged seized diary nor the cross examination of Shri Naresh Tukaram Tandale (Accountants of M/s. Anoopchand Trilokchand) and the author alleged seized diary therefore the principle of natural justice is violated and the addition is required to be deleted.”
During the proceedings before us, at the outset, ld Counsel for the assessee briefly narrated the facts of the case and brought our attention to the legal issues namely, (i) the validity of assessment made u/s 153A of the Act, when there is no any incriminating material; (ii) making an assessment without granting an opportunity of cross examination etc., and submitted that the assessee is not keen on these legal issues considering the assessment year involved (ie 12 years old). However, Ld Counsel for the assessee is very vehement in arguing the issue relating to the merits of additions. Ld Counsel for the assessee raised various pertinent issues and the same includes the following. (1) These assessments were made u/s 153A of the Act when seized material involved (diaries / cash book) were seized at the premises of M/s. Anoopchand Trilochand of Raipur. There was a search action on this assessee on 29th September, 2004. These assessments have nothing to do with the search action on this assessee. It is the allegation of the Revenue that there are unaccounted sales to the said M/s. Anoopchand Trilokchand group concerns amounting to Rs. 3.74 Crs (rounded off) involving various transactions as well as the AYs 2004-05 and 2005-06. (2) The seized diaries were not provided to the assessee either during the assessment proceedings or first appellate proceedings until the direction of the Tribunal during the second appellate proceedings now; (3) The assessee is not aware of the correctness of the said unaccounted sales of Rs. 3.74 Crs. The said unaccounted sales were bifurcated between the AYs 2004-05 and 2005-06 and the AO made addition of Rs. 1.84 Crs (rounded off) for the AY 2004-05 and Rs. 1.90 Crs for the AY 2005-06. Considering the non-supply of the diary / cash book to the assessee, no proper defence could be put up before the AO / CIT (A), who confirmed the addition. The assessee is in appeal against these additions in both the AYs in the impugned appeal proceedings and (4) On receipt of copy of the diary / cash book by the Revenue in compliance with the directions of this Tribunal, assessee analyzed the same and now questioned the correctness of the said addition of unaccounted sales amounting to Rs. 3.74 Crs in these two assessment years. It is the submission of the assessee before us that the addition of Rs. 1.84 Crs is not correct as the diary refers to the assessee only to the extent of unaccounted sales of Rs. 1,12,41,700/-. The addition, if any, should be based on this amount only. At the maximum, this figure can be enhanced to Rs. 1,67,69,700/- even if the name of the assessee as well as the impugned broker (Mr. Rikabchand Srimal) is included. Further, relying on various binding judgments, ld Counsel for the assessee submitted that the addition of entire unaccounted sales can be considered for addition, as this is the case of making addition of profit only as sales of the assessee are undisturbed. Referring to the addition of Rs. 1.90 Crs for the AY 2005-06, Ld Counsel for the assessee submitted that the said diary / cash book (seized material) does not mention any such unaccounted sales for the entire relevant previous year relevant to AY 2005-06. In that case, addition of Rs. 1.9 Crs is not sustainable. Referring to the order of the CIT (A), Ld Counsel for the assessee submitted that the assessee was not privy to the said diary / cash book therefore, there is a requirement of reconciling the figures relating to unaccounted sales on merits. Further, he argued that the addition, if any, on this account should be restricted to the profit element only and the addition of entire unaccounted sales, if any, is unsustainable in law. In this regard, Ld Counsel for the assessee relied on various judgments and one such judgment is in the case of CIT vs. Balchand Ajit Kumar (2003) 263 ITR 160 (MP) (HC).
On the other hand, Ld DR for the Revenue brought our attention to the correspondence he had with the AO regarding furnishing of records and the seized material details and informed us that these requirements are necessary for dealing with the issues relating to the validity of the assessment made u/s 153A of the Act. However, after hearing from the Ld Counsel for the assessee that the legal issues are not insisted in view of the lackcity of the Department in furnishing the relevant records, Ld DR submitted that in case of the assessee’s stand now, these correspondence becomes irrelevant and therefore, the arguments, if any, should be only with regard to the correctness of the addition of Rs. 1.84 Crs for the AY 2004- 05 and Rs. 1.90 Crs for the AY 2005-06. Reacting to Dr. Shivram’s argument about the requirement of reconciliation of the said figures relating to the unaccounted sales, Ld DR submitted that the Ld AR raised the issues for the first time before the Tribunal and therefore, for the purpose of reconciliation, the issue of correctness of the figures of unaccounted sales of Rs. 1.84 Crs (AY 2004-05) and Rs. 1.90 Crs (AY 2005-06) should revisit the file of the AO considering the principles of natural justice’. In response to the query from the Bench regarding the basis of bifurcating the unaccounted sales between the two assessment years, Ld DR / AO could not provide satisfactory explanation and the basis for such bifurcation out of the total unaccounted sales of Rs. 3.74 Crs. Regarding the legal proposition about restricting the addition, if any, to the profit segment of unaccounted sales and the applicability of the cited decision (supra), Ld DR submitted that there are judgments in support of the AO’s decision to make entire unaccounted sales as profit of the assessee.
We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us. Regarding the incriminating material / copy of the diary, it is the contention of the assessee the same was made available to the assessee for the first time during the proceedings before the Tribunal. Regarding the legal issues relating to the assessment made u/s 153A of the Act, on our opinion, Ld Counsel for the assessee’s arguments are only academic significance if the addition is restricted to the profit segment of the unaccounted sales, post reconciliation of the figures by the AO in the assessment proceedings. After hearing both the parties, the legal issue raised by the assessee in its appeal is dismissed as academic.
Regarding the other issue relating to the restriction of addition to the profit portion of the unaccounted sales, we find, it is a settled proposition of law on the given facts of this case, the judgment of the Hon’ble Madhya Pradesh High Court in the case of Balchand Ajit Kumar (supra), which is relevant for the proposition that in case of search, when there is a disclosure about the unaccounted sales, the net profit rate is to be adopted and not the entire sales. Hon’ble High Court did not find any brevity in the order of the ITAT in restricting the addition to net profit. Therefore, the said ratio is laid down by the High Court is squarely applicable to the facts of the present case too. Accordingly, we direct the AO to adjudicate the issue in tune with the said judgment of the Hon’ble High Court (supra). Accordingly we order.
Regarding the addition of unaccounted sales (Rs. 1.84 Crs for the AY 2004- 05), if there is a dispute regarding the correctness of the figures, as per the assessee, the addition should not exceed to Rs. 1,67,69,700/-, even if entries of unaccounted sales involving Mr. Rikabchand Srimal is considered. As per the assessee, GP @ 8.56% on the above unaccounted sales should be the addition (Rs. 14,35,490/-). Accordingly, we remand this issue to the file of the AO. In the remand proceedings, we direct the AO to reconcile these figures with the diaries and assess the correct income after following the appropriate procedure. Assessee is under obligation to reconcile the figures with that of the Departmental figures of Rs. 1.84 Crs. AO is further directed to accept reconciliation, additional evidences, if any, in the remand proceedings on this issue.
Regarding the addition of Rs. 1.90 Crs made in the AY 2005-06, there is a dispute with regard to the involvement of the assessee in matters of unaccounted sales. Assessee’s contention includes that the impugned diary does not support the allegation of unaccounted sales as there is no such entries in the said date. Revenue could not demonstrate before us the basis in coming to the conclusion that unaccounted sales of Rs. 1.90 Crs. The onus is on the AO to supply relevant information to the assessee before he makes any addition in the light of the above cited judgment of the Hon’ble Madhya Pradesh High Court in the case of Balchand Ajit Kumar (supra). Accordingly, all the grounds raised
by the assessee as well as the Revenue are remanded to file of the AO for fresh adjudication as directed above. Thus, all the grounds raised in both the cross appeals are allowed for statistical purposes.
9. The legal issues raised in the cross objection are dismissed as academic.
10. In the result, both the cross appeals for the AY 2004-05 are allowed for statistical purposes and the CO raised by the assessee is dismissed as academic. II. Appeals for the AY 2005-06
11. For the AY 2005-06, there are two cross appeals and one Cross Objection (CO) under consideration. Appeal and C.O.No.28/M/2011 are filed by the assessee and appeal ITA No.3573/M/2010 is filed by the Revenue.