SHIB SHANKAR DAS,BANKURA vs. ITO, WARD - 1, BANKURA, BANKURA

This is an appeal by the Assessee against the order dated 26.9.2011 of CIT(A)- Durgapur, relating to AY 2008-09.

The Assessee is an individual. He carries on the business as wholesaler of grocery items under the trade name “Shib Shankar Trading Co.”. There was a Survey carried out by the revenue in the business premises of the Assessee u/s.133A of the Income Tax Act, 1961 (Act) on 10.3.2008. In the course of survey 4 invoices and delivery notes were found in the business premises of the Assessee evidencing purchases of rice and dal powder by the Assessee. The details of purchases so found were as follows: Sl.no. Page Name of the Invoice/bi Date of purchase Description of Amount marking party from ll/Cash goods purchased (Rs.) No. whom goods M.No. were purchased 01. 08 Tapan 11 07.12.2007 480 Bags Levy Rs.150000/- Kumar Paul, free boiled rice- Bhalakul, 120 Burdwan Qntl.@1250//- per Qntl. 02. 110 M/s.Narayani 03 06.03.2008 400 Bags boiled Rs.200000/- Traders P/o rice= Bhagaban 200Qntl.@1000/- Samanta per Quintal Mugura, Burdwan 03. 116 -do- 02 24.07.2007 240 Bags boiled Rs.102000/- rice=120 Qntl.@850/- per Quintal 04. 114 Mahabir 194 03.12.2007 13 packet Dal Rs.14300/- Trader, Powder, 50 kg. raniganj, each packet, @ Burdwan 2200/- per Quintal Total Rs.466300/- The aforesaid purchases were not recorded in the books of accounts of the Assessee. In the course of assessment proceedings the Assessee took a stand that the invoices were pro-forma invoices and the transactions did not actually happen. The Assessee also pointed out that the delivery challans did not bear the signature of the Assessee acknowledging delivery of goods.

The AO did not accept the plea of the Assessee and he held as follows: “The submission of the AR is not at all acceptable. The assessee had issued the authorization letter to the deriver to take the delivery of goods from the supplier, Truck No. also mentioned therein. Photo copies of the relevant portion of authorization letter issued to the driver to take delivery of goods, delivery challan and Purchase invoice/bills/cash/credit memos have been placed on record. It is crystal clear that assessee has purchased goods of worth Rs.466300/- during the F.Y. 2007-08. In light of the above discussion it is concluded that the assessee has undisclosed purchase of Rs.466300/- has been made from undisclosed business income during the financial year 2007-08. Therefore, the sum of Rs.466300/- is treated as undisclosed business income of the assessee and is added to his total income under the head ‘Income from Business’ for the assessment year 2008-09.”

We have heard the submissions of the learned counsel for the Assessee and the learned DR. The learned counsel for the Assessee brought to our notice the documents found in the course of survey which are placed at pages-43to 49 of the Assessee’s paper book. He highlighted the fact that each of the 4 invoices are accompanied by a delivery challan and in three of the delivery challans i.e., except the delivery challan M/S.Narayani Traders dated 24.7.2007 for Rs.1,02,000/- none of the delivery challan evidence acknowledgement of having taken delivery of goods. According to him therefore the plea of the Assessee that the invoices were pro-forma invoices which ultimately did not result in transactions between the Assessee and the persons who have raised invoice and delivery note, ought to have been accepted. Alternatively the learned counsel for the Assessee submitted that the stock of goods were physically not present at the time of survey and therefore the AO had presumed that these stock of goods were ultimately sold by the Assessee. In such an event the entire value of the goods cannot be added as income and only the profit element i.e., gross profit declared by the Assessee in business for the relevant AY viz., 5% should

We have considered the rival submissions. The AO refused to believe the plea of the Assessee that the goods covered by the invoice and delivery challans were in fact not purchases actually made by the Assessee and were only pro-forma invoices for the reason that there were authorization letter to truck driver to take delivery of goods from the supplier and truck numbers had also been mentioned therein. We are of the view that in the light of the plea raised by the Assessee regarding non receipt of goods from the supplier and that the invoices were only pro-forma invoices, the AO ought to have examined the suppliers to find out the truth or otherwise of the claim made by the Assessee. The mere presence of authorization letter to truck drivers would not in our view prove the case of the revenue. Each of the 4 invoices are accompanied by delivery challan and in three of the delivery challans i.e., except the delivery challan M/S.Narayani Traders dated 24.7.2007 for Rs.1,02,000/- none of the delivery challan evidence acknowledgement of having taken delivery of goods. Since delivery of goods under delivery challan dated 24.7.2007 for Rs.1,02,000 is acknowledged and since the AO has presumed that these goods were sold by the Assessee, we are of the view that 5% G.P. on the value of the purchases alone should be added, as pleaded by the learned counsel for the Assessee before us. In respect of the other three purchases the addition is directed to be deleted as there is no evidence of the purchases having actually been completed by the Assessee. Ground No.2 & 3 are thus partly allowed.

Ground No.4 & 5 raised by the Assessee reads as follows: “4. For that the Ld. CIT(A) erred in confirming the addition of Rs. 54,22,619/- as undisclosed business income which was added by the AO by artificially calculating the figures of stock when books of accounts were properly maintained, no defects were found nor such books were rejected and the entire purchase and sales during the year were found recorded in the day to day stock register maintained which is not in dispute.

The AO called upon the assessee to explain the aforesaid discrepancy. The submission of the A.R. was that the figure of stock lying with the banker as on 29.02.2008 ought not have been taken as the starting point for computing value of Shib Shankar das.. A./Y.2008-09 5 closing stock because the said figure given to the bank was not correct and was only for the purpose of availing of bank credit stock is always shown at higher figure.”

The AO did not accept the above explanation put forward in respect of the aforesaid discrepancy. He was of the view that in the light of the facts and circumstances, discrepancy of closing stock worth Rs.54,22,619/- was not disclosed by the assessee in his books of accounts for the A.Y. 2008-09. Therefore, the aforesaid discrepancy stock of Rs.54,22,619/- was treated as ‘undisclosed stock’ and was added to the total income of the assessee under the had ‘Business Income’ for the assessment year 2008-09.

On appeal by the Assessee, the CIT(A) confirmed the order of the AO. Aggrieved by the order of the CIT(A) the Assessee has preferred Ground No. 4 & 5 before the Tribunal.

We have heard the rival submissions. The learned counsel for the Assessee submitted that at the time of survey physical verification of stock was made and it tallied with the stock as per books of accounts maintained by the Assessee. In such circumstances the plea of the Assessee that the statement of stock given to the bank showed inflated figures and was only for the purpose of availing credit facility from the bank stands established. Therefore the impugned addition ought to have been deleted by the CIT(A). Several judicial pronouncements were brought to our notice on the proposition that stock statement given to the bank is not final and that if the Assessee proves that the stock statement given to the bank showed inflated figures of stock to get better credit facility than no addition can be made in the income tax assessment on the presumption that the stock statement given to the bank is true and that the Assessee has actually invested funds to procure stock as per the statement given to the bank. The following are the cases cited in this regard:

C.M.Roy & Sons dealing the issue (3 to 9) 1503/Kol/2008 the discrepancy give rise to the starting point of the Investigaiton-Vide para 6.8 3. M/s. Das Industries 303 ITR 199 Bank never physically (10 to 12) verified the stock.

M/.s. Industrial Associates ITA - (17 to 22) No.309/K/2006

The learned DR relied on the order of the AO/CIT(A).

We have given a careful consideration to the rival submissions. It is not in dispute before us that at the time of survey physical verification of stock was made and it tallied with the stock as per books of accounts maintained by the Assessee. The survey was conducted on 10.3.2008. There was no excess quantity of stock found physically in the business premises of the Assessee. The stock statement given to the bank is dated 29.2.2008. This stock statement was obviously incorrect as it was not in tune with the physical stock with the Assessee. In such circumstances the plea of the Assessee that the statement of stock given to the bank showed inflated figures and was only for the purpose of availing credit facility from the bank stands established. Therefore the impugned addition ought to have been deleted by the CIT(A). In the decisions cited by the learned counsel for the Assessee before us it has been held that stock statement given to the bank is not final and that if the Assessee proves that the stock statement given to the bank showed inflated figures of stock to get better credit

In the result, the appeal is partly allowed. Order pronounced in the court on 02.12.2015.