SHRI PATEL ENTERPRISES,,KORBA(CG) vs. DY. COMMISSIONER OF INCOME TAX, CIRCLE- KORBA,

आयकर अऩीऱीय अधधकरण, रायऩुर न्यायऩीठ, रायऩुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR श्री रविश सूद, न्याययक सदस्य एवं श्री अरुण खोड़वऩया, ऱेखा सदस्य के समक्ष । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM आयकर अऩीऱ सं./ITA No.112/RPR/2017 (ननधाारण वषा / Assessment Year : 2012-2013) M/s Patel Enterprises, Vs DCIT, Circle-Korba A-3, Vikas Complex, First Floor, Power House Road, Korba (C.G.) PAN No. : AAJFM 0718 Q (अऩीऱाथी /Appellant) (प्रत्यथी / Respondent) ..

ननधााररती की ओर से /Assessee by : Shri Prakash Chand Agrawal, CA राजस्व की ओर से /Revenue by : Shri P.K.Mishra, CIT-DR सुनिाई की तारीख / Date of Hearing : 27/07/2022 घोषणा की तारीख/Date of Pronouncement : 21/09/2022 आदेश / O R D E R Per Arun Khodpia, AM : This appeal is filed by the assessee against the order passed by the CIT(A), Bilaspur, dated 28.03.2017, on the following grounds :- 1. 01.That the lumpsum addition of Rs. 13,60,619/- made by the A.O. and the learned CIT (Appeals) Bilaspur is eared in confirming the above addition of Rs. 13,60,619/-, without considering the facts and circumstance of the assessee. The above addition is bad in law and against the principal of natural justice. The unsustainable addition so confirmed may kindly be deleted. 02. That the Learned CIT (Appeals) Bilaspur enhanced lumpsum addition of Rs. 1,65,67,952/- in addition to confirming addition made by the A.O. of Rs. 13,60,619/-, the enhancement made by CIT (Appeals) is without giving any opportunity of being heard to the assessee as per Sec. 251 (2) of the Income Tax Act, 1961. The above enhancement it bad in law and against the principal of natural justice. The unsustainable enhancement may kindly be deleted. 03. That on the facts and in the circumstances of the case, the learned CIT (Appeals Bilaspur had enhanced the lumpsum addition by Rs. 1,65,67,952/- with hypothetical assumptions and twisting the facts and finding of the A. O. is bad in law and against the principal of natural justice so for this count also the above enhancement is bad in law an against the principal of natural justice. The unsustainable enhancement may kindly b deleted.

2 ITA No.112/RPR/2017 04. That the Appellant reserve the right to add omit, or amend any ground after the copies of relevant documents prayed for are supplied by the CIT (Appeals). 2. Brief facts of the case are that the assessee is a partnership firm, engaged in contract work, it filed return of income on 26.09.2012 disclosing total income of Rs.3,29,11,210/-, which was processed u/s.143(1) of the Act and the case of the assessee was selected for scrutiny through CASS. Thereafter upon issuance of statutory notices, the assessee produced books of accounts, bills, vouchers and bank statements in original were also produced. The assessee has also produced balance sheet before the AO. During the course of assessment the AO found that apart from the income from contract works, the assessee has also shown interest income from SBI and Axis Bank on its fixed deposits made with these banks. The AO also noted that the net profit rate before and after interest and remuneration to the partners are better as compared to preceding assessment years, however, the declared net profit rate in the case of civil contractors is slightly below even generally acceptable net profit rate of 5% for civil contractors. Accordingly, the AO adopted the net profit rate @5% on the turnover and added the same to the total income of the assessee. Further on perusal of the profit and loss account, the AO found that the assessee could not produce any evidence for debiting a sum under the head VAT & Assessment Tax to Rs.55,34,070/-. The AO also made addition of Rs.1,10,000/- on account of donation and Rs.1,26,095/- on account of late deposit of EPF payment.

3 ITA No.112/RPR/2017 3. Against the above additions made by the AO in the assessment order, the assessee preferred appeal before the CIT(A). The CIT(A) with an further enhancement of lumpsum addition of Rs. 1,65,67,952/- has partly allowed the appeal of the assessee. 4. Now, the assessee is in further appeal before the Tribunal. 5. Ld. AR before us submitted that the addition of Rs. 13,60,619/- by the Ld AO was without any substantiating material evidence brought against the assessee. The net profit of the assessee firm arrived at from the audited books of accounts for the year was 4.85%, which was higher than the preceding two years which were 4.41% and 4.64%. Method of accounting and books of accounts of the assessee were also not disapproved by the AO. Submission of the Ld AR on the grounds of this appeal are as under:- Ground No.1 is directed against estimation of NP @ 5% on contract receipts of Rs.91,68,29,224/-, resulting in addition of Rs. 13,60,619/- to the income returned. This was without any substantiating material evidence brought against the assessee. On the basis of audited books of account the net profit shown was 4.85%. This is evidently higher than 4.41% and 4.64% shown on receipts of Rs.83.52 Crores and Rs.95.99 cr. respectively for the AY 2010-11 and 2011-12. The method of accounting followed this year was the same as was followed and stood undisputedly accepted. GROUNDS NO. 2 & 3, That the Learned CIT (Appeals) Bilaspur enhanced lumpsum addition of Rs. 1,65,67,952/- in addition to confirming addition made by the A.O. of Rs. 13,60,619/-, the enhancement made by CIT (Appeals) is without giving any opportunity of being heard to the assessee as per Sec. 251 (2) of the Income Tax Act, 1961. The above enhancement is bad in law and against the principal of natural justice. The unsustainable enhancement may kindly be deleted. The auditors who conducted statutory audit had not adversely commented in this regard. No evidence whatsoever was brought on record to prove that the assessee in fact earned more than 4.85% shown as per audited books of account and hence estimation of NP

4 ITA No.112/RPR/2017 @ 5% and consequential addition to the declared results - being without any evidence - is unsustainable. PARTICULARS 31/03/20010 31/03/2011 31/03/2012 Rs. Rs. Rs. By Sales 835,267,679.00 959,965,001.00 916,829,224.00 To Net Profit (Before Appropriation) 36,813,643.38 44,537,423.94 44,480,842.17

PERCENTAGEOF N. P. (with 4.41% 4.64% 4.85% Sales) To Intt. To Partners 2,465,498.00 8,980,853.00 10,147,127.00 To remuneration to Partners 400,000.00 400,000.00 480,000.00 To Net Profit (After Appropriation) 33,948,145.38 35,156,570.94 33,853,715.17

4.06% 3.66% 3.69% PERCENTAGEOF N. P. (with Sales)

Similarly since no evidence whatsoever was brought on record nor communicated to the assessee to justify estimation of NP @ 5%. Reliance for this proposition is placed on the decisions in CIT v Popular Electric Co. (P)Ltd. (1993) 203 ITR 630 (Cal.) and Ganga Prasad Sharma v CIT (1981) 127 ITR 27 (MP.) and various other decisions mentioned in Chhattishgarh Steel Casting Pvt. Ltd. v ACIT (2009) 12 ITJ 741 (ITAT-Bilaspur Bench) wherein it was held by the Jurisdictional Bench of the ITAT that assessment of income has to be made on available evidences as per s.143(3)(ii), which empowers the AO to go through the evidences for framing scrutiny assessment order - viz., (a) evidence produced by the assessee (b) evidence required from AO to be produced and (c) after taking into account all relevant material gathered by AO. It is, therefore, clear from plain reading of s. 143(3) that assessment of the income should be based on relevant and gathered material and not beyond that. It was further held by the ITAT that additions to the book results based on hypothetical calculation of turnover and estimation of profit rate merely on presumptions and surmises, are not sustainable. For this proposition, reliance was placed on the decisions in (1) Dhakeshwari Cotton Mills (1954) 26 ITR 775(SC); (2) Maheshchand v CIT (1993) 199 ITR 247 (All.); (3) R.Y Durlabhij, (1995) 211 ITR 178 (Raj.) and various other decisions mentioned therein. (a) The impugned addition made on presumptions and surmises is unsustainable in view of the Supreme Court decision in 219 ITR 330 (SC) wherein it was held that there cannot be tax on income on presumptive basis. Income in fact earned is only taxable and not

5 ITA No.112/RPR/2017 the one presumed to have been earned. The impugned addition made on mere guess-work and without any cogent evidence is also opposed to the Supreme Court decision in Dhakeswari Cotton Mills Ltd. 26 ITR 775 (SC) and the decision of All. HC in 199 ITR 247 (All.) and Raj. HC decision in 211 ITR 178 (Raj.) The law does not oblige a trader to make the maximum profits that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands. Income which he could have, but has not earned, is not made taxable as income accrued to him. (CIT v. A. Raman & Co. (1968) 67 ITR page 11-17 (SC). The AO exercises quasi-judicial powers and in doing so, he must not act in a partisan manner and he must act in a fair and reasonable manner, to ensure that the scales of justice must not be arbitrarily and unjudiciously weighed against the assessee, as held by the SC in 105 ITR 212 (SC). In the instant case, under consideration, the aforementioned addition made on presumptions and unsubstantiated evidence, clearly evidences the fact that the scales of justice were unjudiciously weighed against the assessee. The presumptions and hypothetical estimations and observations made by the A.O. for making the impugned estimated assessment, were extraneous, irrelevant and opposed to the facts obtaining from the record. The fate of the assessee could not be decided by the A.O. on mere surmises or probabilities (Northern Bengal Jute Mills Trading Co. Ltd. v. CIT (1968) 70 ITR407 (Cal.). The mere existence of reasons for suspicion would not tantamount to evidence (Cal. HC in Narayan Chandra Baidya v. CIT (1951) 20 ITR 287 (Cal.). Once the books of account of an assessee are rejected, then, profit has to be estimated on the basis of proper material evidence available [Dabros Industrial Co. (P) Ltd. v. CIT (1977) 108 ITR 424 (Cal.)]. The AO was not entitled to make pure guess and make the impugned assessment without reference to any evidence. There must be something more than bare suspicion to support the same. The rule of Law on this subject has been fairly and rightly stated by the Lahore HC in Seth Gurmukh Singh v. CIT (1944) 12 ITR 393 (Lah.) [ Dhakeshwari Cotton Mills Ltd. v. CIT (1954) 26 ITR 775, 782 (SC)]. It was observed by the SC in Dy. Commissioner of Agricultural Income-tax and Sales Tax v. Travancore Rubber and Tea Co. (1967) 20 STC 520 that "in all cases of taxation the burden of proving necessary ingredients laid down by law to justify taxation is upon the authorities." (c) The allegation of the AO that the assessee had not co- operated and produced relevant records and evidences is totally incorrect because audited books of account together with the bills and voucher files, were produced before the AO. All the details regarding incomings and outgoings such as copy of account of material purchase, salary, transportation expenses, interest, Muster Rolls etc., were furnished before the Learned AO. Voucher files were produced to substantiate the

6 ITA No.112/RPR/2017 expenses claimed under various heads. Confirmations from the creditors were filed. Copies of bank accounts were also furnished. Compliance in response to all the questions was made by filing the needed details during assessment proceedings. None of them were proved as false or inadequate. The income returned and the aforementioned details filed were on the basis of Statutory Audit Report filed along with the return of income. Adjournments whenever sought were never denied since they were sought on valid grounds. It was for all these reasons that the impugned assessment was completed u/s.143 (3) and not u/s.144 of the Act. Books of account of the assessee were examined and audited by the Statutory Auditors u/s.44AB and audit report was submitted. Reliance could be placed by the AO on such a report treating the same as "a material". This is so because an Auditor is required by the Statute to find out if the deductions claimed by the assessee in its balance-sheet and profit and loss account are supported by the relevant entries in assessee's books of account. Therefore, it must be presumed that the Auditor had done so and had found that the books of account supported the claim for deductions made by the assessee as held in Addl. CIT v. Jay Engineering Works Ltd. (1978) 113 ITR 389, 391-2 (Del.). The details filed on the basis of audited accounts were not proved as false nor was the mandatory certification given in the Audit Report u/s. 44AB by the Statutory Auditors regarding the correctness and completeness of the accounts of the assessee - filed along with the return - was proved as false and hence the impugned assessment is unsustainable on facts and in law since the same is opposed to the ratio laid down by the Delhi HC in the aforementioned decision. Since the AO discarded the audited book version and resorted to estimation of NP, by invoking provisions of s. 145 (3), he ought to have related his estimate to some evidence or material on record as it is now well settled that if the profits shown by the assessee in his return are not acceptable, it is for the taxing authorities to prove that the assessee has made more profits than returned. [International Forest Co. v. CIT (1975) 101 ITR 721 (J & K)]. Since this was not proved against the assessee on the strength of evidence, the AO's action in this regard is opposed to the factual and legal standards enumerated above. During the Assessment order itself learned AO mentioned in PARA- 4 (Page-4 of Assessment Order) that as under: - "4. The aforesaid submission of the assessee has been carefully considered, the expenses shown in the books of accounts have also been test checked. For expense which are supported by proper bills and invoices and payments made through banking channels, there is no dispute, but for expenses which are either based on internal vouchers or without vouchers, their reliability can't be cent percent correct. This possibility has not been denied by the counsel. On verification of wages register, it is found that the

7 ITA No.112/RPR/2017 payment of wages has been invariably made in cash. The thumb impressions and signatures put by the labours are beyond recognition. Considering all the pros and cons of the case, it has been considered reasonable and legitimate to adopt the N. P. rate of 5% the profit @5% on the turnover of 91,68,29,224/- comes to Rs. 4,58,41,461/- the assessee has already shown book profit f Rs. 4,44,80,842/-, hence the remaining amount of Rs. (4,58,41,461/- - 4,44,80,842/-) - Rs. 13,60,619/- is added to the returned income of the assessee." Your honour, As per AO's assessment order, there is no question on the books of accounts maintained by the assessee, during the assessment proceeding, he appreciated about the books maintained by the assessee and but he proposed to cover-up the probability of revenue leakage, without any reason, without any finding. Your honour, the learned CIT (Appeals), being a prejudiced mind, had made new story on these basis he twisted fact of the case and tried to give a new color, which is clearly indicating in the page - 3 of the CIT (Appeals) Order point No. 1,2,3,4 resultant with the enhancement of Income without giving any opportunity to the assessee to show cause as per the provision of section 251 (2) of the Income Tax Act, 1961. Your honour, in this regard I am relying the following citations: - 01. MOHAN SUKUMARAN vs. DEPUTY COMMISSIONER OF INCOME TAX- (2021) 63 CCH 0508 Raipur Trib 02. RENU SAGAR POWER COL. LTD. vs. COMMISSIONER OF INCOME TAX- (2016) 96 CCH 0403 AUHC 03. SHANKAR GUPTA vs. INCOME TAX OFFICER - (2020) 58 CCH 0230JaipurTrib In the light of all that has been enumerated above, since estimation of NP @ 5% was without any evidence brought against the assessee, such baseless presumptive estimated enhancement made by the A O and also by the learned CIT (Appeals) with some baseless reasoning to justify the enhancement, being unsustainable on facts and in law, be deleted and the AO may very kindly be directed to accept the NP rate of 4.85% (before Interest and Remuneration to partners) shown by the assessee. PRAYER: It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to set aside the order passed by learned AO and also the order of the CIT (Appeals).

8 ITA No.112/RPR/2017 6. On the other hand, ld. Sr DR relied on the orders of the authorities below 7. We have heard rival submissions and perused the record carefully. The first issue in the appeal raised under Ground 1 & 2 of the appeal by the appellant is that the AO had made an addition of Rs. 13,60,619/- based on presumption that some expenses which are incurred based on internal vouchers or without vouchers can’t be considered as 100% reliable. On verification of wages registers also it is found that the payments of wages have been invariably made in cash, thumb impression and signatures put by the labours are beyond recognition. No specific entries, expenses were marked by the AO to disallow the same based on their ingenuineness or based on material evidence gathered by the AO. Estimation of profit merely on the basis of presumption and surmises are not sustainable. Ld AO had considered the rate of 5% for net profit as reasonable as against NP ratio of 4.85% which as per AO is a generally accepted N.P. rate for civil contractors, but without cogent basis for the same. This is issue is squarely covered by the case of Chhatishgarh Steel Casting Pvt. Ltd. Vs ACIT (2009) 12 ITJ 741 (ITAT Bilaspur bench), wherein it is held that addition to the books resulted based on hypothetical calculations of turnover and estimation of profit rate merely on presumptions and surmises, are not sustainable. Reliance was also place on various other judgments mentioned in the submissions of the Ld AR herein before.

9 ITA No.112/RPR/2017 8. Further the issue was examined by the Ld CIT(A) sustained the same. However, Ld CIT(A) has enhance the disallowance by Rs. 1,65,67,952/-. The observations of the Ld CIT(A) were as under:- After having noticed the defects in the books of accounts in my considered view the learned AO has rightly applied net profit rate by indirectly rejecting the books of accounts u/s 145(3) of IT Act even though he did not mention under which section he has done and also avoided the use of words of rejection of books of accounts. The only charge to the P/L account has been accepted by the learned AO is the remuneration paid to the partners and interest paid on the capital contributed by the partners. In my considered view the rate applied by the AO is not correct because he had excluded only the net profit before payment of remuneration and interest to the partners. The AO has ignored the principle of the application of the net profit in the facts of the case. This is a fact that the assessee has also credited interest received amounting to Rs. 5905800/- and income on investment amounting to Rs. 894166/- in the P/L account. The assessee has also credited service tax in the P/L account amounting to Rs. 1243265/- and the AO did not raise any query as to how the service tax can become the income of the assessee and in my view it is the result of undue enrichment which is to be taxed at 100% and the AO had applied 5% on the undue enrichment income of service tax which is not correct besides the indirect incomes which contributed to the net profit by Rs. 8283976/-. He has overlooked this fact that net profit rate of 4.85% is achieved only by inclusion of Rs. 8283976/- otherwise it would have been lesser had it not been credited in P/L account. If gross receipt is subjected to net profit rate of 5% then Rs. 8283976/- should have been added as extra income of the assessee which has been considered by the AO as part of receipt for the net profit rate. In my considered view the net profit rate is less than 4.85% if amount of Rs. 8283976/- is excluded. After application of net profit rate on the gross receipt the AO has applied 4.85% net profit for the purpose of addition as shown by the assessee which is already arrived at by inclusion of Rs. 8283976/- and after application of net profit the learned AO in my considered view is precluded to touch any item on the debit side of P/L account. Thus he has not applied the net profit rate correctly. Since no one had attended during appellate proceedings but the net profit rate applied by the AO has been challenged the assessee should have been careful that if appellate authority is assisted then adjudication the ground of appeal on net profit rate may result into enhancement in the income. I am duty bound to correct the assessing officer as appellate authority. The power of enhancement is inherent in the first appellate authority in the taxation law. In my considered view the net profit applied by the AO to the extent of Rs. 45841461/- is correct but after that he has reduced the book profit shown by the assessee amounting to Rs. 44480842/- and that is

10 ITA No.112/RPR/2017 not correct. The book profit has been reached by the assessee after availing all the sections from section 29 to 43C of IT Act. The amount of Rs. 44480842/- includes Rs. 8283976/- should have been reduced from the amount of Rs. 44480842/-. After subtraction of indirect incomes the correct amount comes to Rs. 36196866/- to be subtracted from Rs. 45841461/- as 5% applied on the gross contract receipt of the assessee. Thus the addition should \ have been made by the AO to the extent of Rs. 9644595/- and after this Rs. 9644595/- the indirect income credited in P/L account amounting to Rs. 8283976/- should also have been added by the AO to correctly reach at net profit rate of 5%. In my considered the correct addition works out at Rs. 17928571/-. Having explained hereinabove I am hereby compelled to enhance the income while adjudicating the ground of appeal 1 raised by the assessee. The disallowance made by the AO being inappropriate if telescoped in the addition arrived at Rs. 17928571/- will result into enhancement of Rs. 16567952/- besides confirmation of the addition made by the AO of Rs. 1360619/-. The ground of appeal is disposed off accordingly. 9. Admittedly, the disallowance by AO was sustained by the Ld CIT(A) commenting that the AO has rightly applied the net profit rate, by indirectly rejecting the books of the assessee u/s 145(3) but was missed to use the words rejection of books in assessment order. Ld CIT(A) further observed that rate of profit applied by the AO is not correct because he had ignored certain principle of application of rate of net profit in the facts of the case. Further after making certain calculations the Ld CIT(A) was reached on a conclusion to enhance the disallowance apart from confirming the disallowance made by the AO. All these calculations and conclusions were drawn by Ld CIT(A) mentioning that no one had attended the during the appellate proceedings while challenging the net profit rate applied by the AO, the appellate should be careful that if the appellate authority is not assisted then the ground of appeal on net profit rate may result into enhancement in the income. It shows that the enhancement was done without prosecution by the assessee. Whether reasonable opportunity to

11 ITA No.112/RPR/2017 oppose / rebut on the enhancement was given to assessee also not evident from the CIT(A)’s order. In this context order of the Hon’ble High Court of Madras in the case of CIT Vs Lotte India Corporation Ltd. (2007) 290 ITR 0248 is relevant wherein it is held that:- The finding of the Commissioner of Income-tax (Appeals) that it is not clear in the assessment order as to how the expenditure which had been capitalised in the books of account and claimed in the adjustment statement has been allowed by the Assessing Officer and that the said aspect also needs to be re-examined, certainly leads to the conclusion that there may be an enhancement of assessment or a penalty or reduction of the amount of refund. If that be so, as contemplated under section 251(2) of the Act, referred to above, the Commissioner of Income-tax (Appeals), as rightly held by the Tribunal, should not exercise the power conferred under section 251(2) without giving a reasonable opportunity to the assessee showing against such enhancement or reduction, and to that extent the Tribunal is right in coming to the conclusion that the Commissioner of Income-tax (Appeals) has committed an error in rendering the finding that it is not dear in the assessment order as to how the expenditure which had been capitalised in the books of account and claimed in the adjustment statement has been allowed by the Assessing Officer. 10. Hon’ble Delhi high court in the case of Gedore Tools (P) Ltd Vs. CIT has held that : Power of enhancement by the CIT(A) is subject to the limitation as provided in sub-s.(2) of s.251 and such power can be exercised only if notice was given in that regard. 11. In the backdrop of above facts and circumstance, it is observed that the assessee was not confronted at both the stages at assessement as well as at appeal before concluding and imposing disallowance and further enhancement on it. AO had made the disallowance on the basis of estimation without any basis. Similarly CIT(A) has made certain calculations, might be logical but without giving the assessee an opportunity of being rebut, thus against the provisions contemplated u/s 251(2) of the Income Tax Act and also against the principle of natural

12 ITA No.112/RPR/2017 justice. Since, as per the order of CIT(A) it is emanated that no one had attended the appellant proceedings, however it could not be revealed that any notice with regard to enhancement was given to the assessee while exercising the powers u/s 251(2) by the CIT(A). In view of such observation, respectfully following the law interpreted by the judicial forums as discussed herein above, we are of the considered opinion to restore this matters back to the files of Ld CIT(A) to re-adjudicate the same in light of the provisions of the act as interpreted by various judicial decisions. It is directed to provide reasonable opportunity of being heard to the assessee and assessee is directed to cooperate and be compliant towards these proceedings. Consequently, the appeal of the assessee is partly allowed for statistical purposes. 12. In the result, the appeal of the assessee is partly allowed for statistical purpose in terms of our observations as discussed herein above. Order pronounced in pursuance to Rule 34(4) of ITAT Rules, 1963 on 21/09/ 2022. Sd/- Sd/- (RAVISH SOOD) (ARUN KHODPIA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER रायऩुर/Raipur; ददनाांक Dated 21/09/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. प्रत्यथी / The Respondent- 2. 3. आयकर आयुक्त(अऩीऱ) / The CIT(A), आयकर आयुक्त / CIT आदेशानुसार/ BY ORDER, 4. विभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, रायऩुर/ DR, ITAT, 5. Raipur (Assistant Registrar) गार्ड पाईऱ / Guard file. 6. आयकर अऩीऱीय अधधकरण, सत्यावऩत प्रयत //True Copy// रायऩुर/ITAT, Raipur