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Income Tax Appellate Tribunal, DIVISION BENCH, ‘A’ CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee
against the order dated 01.02.2017 of the Commissioner of Income
Tax [hereinafter referred to as CIT(A)]-2, Chandigarh. The
assessee has taken following grounds of appeal:
That the order of Ld. CIT(A) is bad, against the facts & law.
That the Ld. CIT(A) has wrongly upheld the rejection of regular books of account of the appellant.
That the Ld. CIT(A) has wrongly upheld the order passed us 143(3) read with section 144 by the Ld. Assessing officer.
ITA No.686/Chd/2017- Sh. Girish Singla, Chandigarh 2
That the Ld. CIT(A) has wrongly upheld the estimation of GP rate on the basis of incomparable firms.
That the Ld. CIT(A) has wrongly upheld the use of evidences collected on the back of the appellant for estimation of GP rate.
That the Ld. CIT(A) has wrongly upheld the additions of Rs. 92,52,230/- made by the Ld. Assessing officer.
A perusal of the grounds of appeal reveal that assessee is
agitated against the rejection of books of account and thereby
framing of assessment u/s 144 of the Income-tax Act, 1961 (in
short 'the Act') on the basis of best judgement rule and further the
estimation of income on the basis of GP rate and thereby addition
of Rs. 92,52,230/- into the income of the assessee.
At the outset, Ld. Counsel for the assessee has invited our
attention to the impugned order of the Assessing officer to state
that the Assessing officer had rejected the books of account
mainly on two grounds, firstly, the assessee had not been
maintaining the stock register and further that in an enquiry it is
revealed that the firm namely M/s Shivalik Enterprise did not
actually exist from whom the assessee allegedly had made certain
sale & purchase transactions.
The Ld. Counsel of the assessee, at the outset, has submitted
that the assessee has been maintaining the books of account
properly and even all the bills and vouchers have been
maintained. That since the assessee has been dealing as a trader in
ITA No.686/Chd/2017- Sh. Girish Singla, Chandigarh 3
many items; hence, it was not possible to maintain the stock
register owing to the huge transactions in day to day activity of
the assessee. The Ld. Counsel has further submitted that the
Inspector appointed by the Assessing officer to inquire about the
Shivalik Enterprise had visited at wrong address. The purchases /
sales translations which were made by the assessee with M/s
Shivalik Enterprises were genuine. That the director of the said
proprietor of Shivailk Enterprise, for the reasons best known to
him, wrongly made a statement during the survey action that he
was the driver to the assessee and not the owner of the Shivalik
Enterprise.
The Ld. DR, on the other hand, has submitted that the books
of account have been rightly rejected by the Assessing officer.
That the firm Shivalik Enterprise was a bogus firm which was
proved not only by the enquiries made by the Inspector but also
from the statement of alleged proprietor of the Shivalk Enterprise,
who himself had admitted, that the was driver of the assessee. She
has further submitted that the Assessing officer therefore had
rightly estimated the income of the assessee on the basis of GP
rate.
The Ld. AR of the assessee, at this stage, has submitted that
even the GP rate has not been estimated by the Assessing officer
on the basis of comparables, which are doing business activity
identical to that of the assessee but on the basis of income of the
companies whose activities are not comparable to that of the
assessee.
ITA No.686/Chd/2017- Sh. Girish Singla, Chandigarh 4
We have considered the rival contentions. So far as the
rejection of account for non-maintenance of the stock register is
concerned, in our view, that cannot be sole criteria for rejection
of the books of account when the assessee has been maintaining
the quantitative details along with cash book, ledger, purchase
bills, sale bills, vouchers etc. However, so far as the genuineness
of the purchases / sales made from the alleged M/s Shivalk
Enterprise is concerned, though the assessee has stated that the
inspector of the Department has visited a wrong address, but
during the survey, the said proprietor of the Shivalik Enterprise
also admitted that he was not the actual proprietor of the Shivalik
Enterprise but a driver of the assessee. The assessee, on the other
hand, has contended that the firm Shivalik Enterprise did exist
and the transactions made by the assessee with it were genuine.
In our view, if the sales / purchases made by the M/s
Shivalik Enterprises were doubtful, the Assessing officer was
required to make further enquiries. Since, it is the claim of the
assessee that the entire sales and purchases were genuine, in our
view, the assessee should be given opportunity to present its case
to prove the genuineness of the transactions with Shivalk
Enterprise. In view of this, we restore this issue to the file of the
Assessing officer to examine the issue afresh after giving
opportunity of hearing to the assessee on this issue. However, it is
made clear that even if after considering the submissions of the
assessee on this issue, the Assessing officer will of the view that
ITA No.686/Chd/2017- Sh. Girish Singla, Chandigarh 5
the books of account of the assessee are liable to be rejected, then in that event, we direct that the Assessing officer will consider the business activity of the assessee and will choose comparable companies having identical business activity and thereafter estimate the GP rate and assess the income of the assessee accordingly. With the aforesaid directions, the present appeal of the assessee is restored to the file of the Assessing officer. 7. In the result, the appeal of the assessee is treated as allowed for statistical purposes.
Order pronounced in the Open Court
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 23.04.2018 Rkk
Copy to: • The Appellant • The Respondent • The CIT • The CIT(A) • The DR