Radhika Vegetable Oils Private Limited, , Visakhapatnam V. Assistant Commissioner of income Tax, Circle-3(1), Visakhapatnam

CO 132/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7233 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 27-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Corroborative evidences; Condonation of delay; Set aside
• Section: 271(1)(c); 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 415 & 416 /VIZ/2018 ( / ASSESSMENT YEAR S : 2013 - 14 AND 2014 - 15 ) M/S RADHIKA VEGETABLE OILS(P) LTD., SREERAM NAGAR GARIVIDI , VIZIANAGARAM [PAN : AAACR8333C] VS. ASST.COMMISSIONER OF INCOME TAX CIRCLE - 3(1) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) ./ I .T.A.NO. 474 & 475/VIZ/2018 ( / ASSESSMENT YEAR S : 2013 - 14 AND 2014 - 15) ASST.COMMISSIONER OF INCOME TAX CIRCLE - 3(1) VISAKHAPATNAM VS. M/S RADHIKA VEGETABLE OILS(P) LTD., SREERAM NAGAR GARIVIDI , VIZIANAGARAM [PAN : AAACR8333C] ( / APPELLANT) ( / RESPONDENT) CO NO. 132 & 133/VIZ/2018 (ARISING OUT OF I .T.A.NO. 474/VIZ/2018 & 475/VIZ/2018 RESPECTIVELY) ( / ASSESSMENT YEAR: 2013 - 14 AND 2014 - 15) Z M/S RADHIKA VEGETABLE OILS(P) LTD., SREERAM NAGAR GARIVIDI , VIZIANAGARAM [PAN : AAACR8333C] VS. ASST.COMMISSIONER OF INCOME TAX CIRCLE - 3(1) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) /REVENUE BY : S MT SUMAN MALIK, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 1 6 . 04. 201 9 / DATE OF PRONOUNCEMENT : 30 .04. 201 9 2 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM / O R D E R P ER BENCH : DELAY : THE ASSESSING OFFICER (AO) HAS FILED APPEALS WITH THE DELAY OF 31 DAYS AND HAS FILED PETITION FOR CONDONATION OF DELAY EXPLAINING THE REASONS FOR DELAY IN FILING THE APPEAL. THE LD.AR DID NOT OBJECT FOR CONDONATION OF DELAY. AFTER HEARING BOTH THE PARTIES, THE DELAY IN FILING THE APPEAL IS CONDONED AND THE APPEAL IS ADMITTED. 2. THESE APPEALS ARE FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS) [CIT(A)] - 1, VISAKHAPATNAM, VIDE I.T.A.NO.0009/2016 - 17/ACIT - C - 3(1),VSP/2017 - 18 DATED 21.06.2018 AND I.T.A.NO.10409/2016 - 17/ACIT - C - 3(1), VSP/2017 - 18 DATED 21.06.2018. CROSS OBJECTIONS ARE ALSO FILED BY THE ASSESSEE SUPPORTING THE ORDERS OF THE LD.CI T(A). SINCE THE GROUNDS RAISED IN THESE APPEALS ARE IDENTICAL, THESE APPEALS ARE CLUBBED, HEARD TOGETHER AND A COMMON ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AS UNDER. 3 . THE ASSESSEE HAS FILED ITS RETURN OF INCOME DECLARING LOSS OF RS.1,18,01,0 12/ - ON 01.10.2013 FOR THE A.Y.2013 - 14. THE CASE WAS SELECTED FOR SCRUTINY AND THE NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. DURING 3 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO VERIFIED THE BOOKS OF ACCOUNTS, BILLS AND VOUCHERS AND FOUND THAT THE AS SESSEE HAS DEBITED THE SUM OF RS.3,28,27,958/ - TOWARDS FRESH FRUIT BUNCHING EXPENSES. THE BREAK - UP OF THE EXPENDITURE IS AS FOLLOWS : (I) PURCHASE EXPENSES - RS.1,69,48,021/ - (II) LOADING AND UNLOADING EXPENSES - RS.32,76,400/ - (III) EMPTY BUNCHES H ANDLING CHARGES - RS.44,21,250/ - TOTAL - RS.2,46,45,671/ - THE ASSESSEE EXPLAINED TO THE AO THAT THE EXPENSES WERE SUB - CONTRACT PAYMENTS MADE TO SHRI BONGU VASUDEV RAO, MS V.PADMA, P.SATYANARAYANA, K.VAMSIKRISHNA AND MS V.HIMA BINDU FOR HANDLING AND TRANSPORTATION OF FRESH FRUIT BUNCHES (FFBS) AND THE NATURE OF EXPENDITURE WAS LOADING, UNLOADING TRANSPORTATION EXPENSES AND HANDLING OF EMPTY BUNCHES. THE AO ISSUED SUMMONS U/S 131 TO THE SAID SUB - CONTRACTORS AND THE STATEMENTS WERE RECORDED FROM T HEM AND VERIFIED THE BOOKS OF ACCOUNTS AND MATCHED THE INFORMATION SO COLLECTED FROM THE SAID SUB - CONTRACTORS AND MADE THE FOLLOWING OBSERVATIONS : ALL THE PERSONS (CLAIMING TO B E CONTRACTORS) ARE EITHER THE EMPLOYEES OF THE CONCERN VIZ RADHIKA VEGETABLE OILS PVT LTD OR THE RELATIVES OF THE EMPLOYEES. ON VERIFICATION OF THE RETURNS OF INCOME OF THE S E PERSONS FOR THE 4 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM RELEVANT ASSESSMENT YEAR, IT WAS NOTICED THAT THES E RETURNS WERE PREPARED AND FLIED BY THE COMPANY ON BEHALF OF THEM AND A LL THE RE TURNS WERE INVARIABLY FILED UNDER ITR - 4S . NONE OF THE PERSONS, WHOSE STATEMENTS WERE RECORDED HAS MAINTAINED ANY BOOKS OF ACCOUNTS AND ALSO COULD NOT PRODUCE ANY BILLS, VOUCHERS RELATING TO HIRING OF VEHICLES FOR TRANSPORTATION AS CLAIMED BY THEM. FURTHER NONE OF THEM COULD PROVIDE ANY CONTRACT/AGREEMENT/WORK ORDER WHATSOEVER REGARDING THE WORK DONE AS CO NTRACTOR FOR THE COMPANY. ALSO, IT IS TO BE NOTICED THAT, HIGH VALUE TRANSFERS WERE MADE TO THESE PERSONS' BANK ACCOUNTS ESPECIALLY IN THE MONTHS OF FEBRUA RY ARID MARCH AND THESE WERE IMMEDIATELY WITHDRAWN BY EMPLOYEES OF THE COMPANY . FURTHER THE STATEMENTS RECORDED FROM SMTV.PADMA AND SHRI BONGU VASUDEV CORROBORATE IN NO UNCERTAIN TERMS THAT THE CLAIMS ARE NON - GENUINE 3.1. THE AO RECORDED THE STATEMENTS F ROM ALL THE ABOVE PERSONS AND FOUND THAT ALL OF THEM HAVE DENIED HAVING DONE ANY CONTRACT WORK TO THE ASSESSEE. HENCE, THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AND ASKED THE ASSESSEE COMPANY TO EXPLAIN THE MISMATCH IN THE STATEMENTS WITH THAT OF THE ENTRIES IN THE BOOKS OF ACCOUNTS WITH REGARD TO SUB CONTRACT PAYMENTS FOR FFBS INCURRED BY THE ASSESSEE THROUGH SUB CONTRACTORS. IN RESPONSE, THE ASSESSEE FILED EXPLANATION STATING THAT THE ASSESSEE IS ENGAGED IN THE MANUFACTURE OF PALM OIL FOR WHICH THE COMPANY BUYS FRESH FRUIT BUNCHES FROM VARIOUS FARMERS THROUGH COLLECTION CENTERS LOCATED AT DIFFERENT PLACES. IN THE WHOLE PROCESS OF COLLECTION AND DISPOSAL OF FRESH FRUIT BUNCHES, UNSKILLED LABOURERS ARE INVOLVED AT VARIOUS STAGES LIKE 5 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM WEIGHING, LOADIN G, GRADING, UNLOADING AT FACTORY, STACKING, LOADING INTO CAGES, CLEARING THE EMPTY BUNCHES ETC. THE COMPANY FOUND IT IS DIFFICULT TO EMPLOY THE LABOUR ON PERMANENT ROLLS AND FOUND IT IS CONVENIENT TO ENGAGE THE SUB - CONTRACTORS FOR HANDLING AND TRANSPORTAT ION OF FFBS FROM VARIOUS COLLECTION CENTERS TO THE FACTORY AS COLLECTION CENTERS ARE LOCATED AT 9 DIFFERENT LOCATIONS AND IT WOULD BE DIFFICULT FOR THE COMPANY TO COORDINATE WITH THE TRANSPORTERS AND TO MATCH THE AVAILABILITY OF VEHICLES AS PER THE REQUIRE MENTS. THEREFORE, IT HAS ENGAGED THE EMPLOYEES WHO HAVE RENDERED THEIR SERVICES AND MADE THE PAYMENTS THROUGH THEM. IT IS NECESSARY FOR THE COMPANY TO CARRY OUT THE ABOVE ACTIVITIES AND TO INCUR THE EXPENDITURE FOR RUNNING THE COMPANY AND WITHOUT THE ABOV E ACTIVITIES, THE COMPANY WOULD NOT BE ABLE TO PROCURE THE RAW MATERIAL TO ITS FACTORY AND PROCESS FURTHER TO MANUFACTURE ITS FINISHED PRODUCT. THE ASSESSEE FURTHER STATED THAT TO TRANSPORT THE RAW MATERIAL FROM FFB CENTERS TO THE FACTORY, THE TRANSPORT CHARGES ARE GENUINELY INCURRED AND UNAVOIDABLE. FURTHER HANDLING CHARGES ARE NECESSARY FOR THE COMPANY TO INCUR AS THE RAW MATERIALS ARE FRAGILE AND PRONE TO DAMAGE. IT NEEDS PROPER SEPARATION AND CUTTING SO AS TO AVOID THE LOSS OF FFBS. THE COMPANY NE EDS TO PROPERLY HANDLE THE EMPTY BUNCHES AFTER THE PROCESS IN ORDER TO COMPLY WITH THE POLLUTION CONTROL NORMS. THE 6 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM ASSESSEE COMPANY FURTHER STATED THAT TO CARRY OUT ALL THE ABOVE FUNCTIONS, THE COMPANY HAS EMPLOYED THE CONTRACTORS / EMPLOYEES WHO COORDIN ATE AND CONTROL THE PROCESS OF PROCUREMENT AND ASSIST IN MANUFACTURING. THUS, THE ASSESSEE COMPANY HAD JUSTIFIED ITS MANUFACTURING EXPENSES. 3.2. WITH REGARD TO THE STATEMENTS RECORDED FROM THE SUB - CONTRACTORS AND THE INCONSISTENCIES AND MISMATCHES THE ASSESSEE STATED THAT O SRI B . VASUDEV RAO ACCEPTED IN RESPONSE TO QUES TION NO. 5 ABOUT HIS DUTY TO SUPER VIS E THE HANDLING AND TRANSPORTATION OF RAW MATERIAL FROM COLLECTION CENTERS TO FACTO RY, THAT CONFIRMS ABOUT SUCH PROCESSES TAKING PLACE. O SRI K VAMSI KRISHNA, IN RESPONSE TO QUESTION 6 HAS CONFIRMED HIS INCOME FROM TRANSPORTATION BUSI NESS. IN RESPONSE TO QUESTION NO 10, HE HAS NOT DENIED THE TRANSACTIONS BUT ONLY HAS EXPRESSED INABILITY TO FURNISH DOCUMENTS. THAT CAN BE UNDERSTOOD AS HE IS A SMALL CONTR ACTORS FILING UNDER 44A D . O SRI P . SATYANARAYA NA , HAS ACCEPTED HIS DUTY OF PREPARING BILLS FOR HANDLING AND TRANSPORTATION EXPENSES WHICH GOES TO ESTABLISH SUCH EXPENSES. O SMT. V.PADMA H AS ACCEPTED UNDERTAKING WORK OF HANDLING AND TRANSPORTATION OF RAW MATERIAL FROM COLLECTION CENTERS TO THE FACTORY . 3.3. THE COMPANY EXPLAINED THE JUSTIFIABLE REASONS FOR THE EXPENSES AND SUBMITTED THAT THE EXPENDITURE WAS GENUINELY INCURRED BY OUTSOURCING VARIOUS MANPOWER AND REQUESTED TO ALLOW THE SAME. THOUGH THE COMPANY HAS STATED THAT IT CAN PRODUCE THE NECESSARY EVIDENCES TO SUPPORT THE EXPENDITURE, DUE TO P AUCITY OF TIME, THE ASSESSEE HAD ACCEPTED THE ADDITION RELATING TO THE DISALLOWANCE OF EXPENDITURE, SUBJECT TO CONDITION OF NOT TO 7 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM INITIATE THE PENALTY PRO CEEDINGS, U/S 271(1)(C) OF THE ACT. THE AO DID NOT ACCEPT THE CONDITIONAL OFFER MADE BY THE ASSESSEE ADMITTING THE INCOME AND OBSERVED THAT SMT. V.PADMA, SHRI BONGU VASUDEVA RAO HAVE DENIED HAVING MADE ANY TRANSACTIONS WITH THE ASSESSEE AND WERE NOT AWA RE OF SUCH TRANSACTIONS WITH THE COMPANY. BOTH THE ABOVE PERSONS HAVE FURTHER STATED THAT SOON AFTER THE DEPOSIT, THE AMOUNT WAS WITHDRAWN BY OTHER EMPLOYEES OF THE COMPANY AND THEY HAD NO ROLE WHATSOEVER IN THESE TRANSACTIONS. IT IS FURTHER OBSERVED BY THE AO FROM THE STATEMENTS RECORDED THAT THEY DID NOT HAVE RESOURCES OR EXPERTISE TO EXECUTE SUCH CONTRACT WORKS OF HANDLING AND TRANSPORTATION FOR THE COMPANY. THE BILLS WERE ALSO PREPARED BY THE COMPANY IN THE TYPED FORMAT AND OBTAINED SIGNATURES OF THE ABOVE PERSONS AS AND WHEN REQUIRED. WITH REGARD TO P.SATYANARAYANA WHO IS WORKING AS CLERK IN THE COMPANY, K.VAMSI KRISHNA IN WHOSE NAME THE HANDLING CHARGES WERE CLAIMED BY THE ASSESSEE WAS A COMPUTER OPERATOR IN THE COMPANY AND BOTH OF THEM HAVE STATE D THAT THEY ARE AWARE OF THE TRANSACTIONS, BUT NO SUPPORTING EVIDENCE LIKE AGREEMENT WITH THE ASSESSEE FOR EXECUTION OF THE HANDLING AND TRANSPORTATION OF FFB AND EMPTY BUNCHES WAS PRODUCED BY THEM. IN THE CASE OF V.HIMA BINDU IN WHOSE NAME ALSO, THE BILL S WERE RAISED TOWARDS FFB LOADING CHARGES, THE 8 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM PERSON HAS NOT APPEARED IN RESPONSE TO SUMMONS, NOR DID SHE CONFIRM THE TRANSACTIONS. THE MODUS OPERANDI AND THE PATTERN ARE SAME AND THE AMOUNTS WERE DEPOSITED IN HER ACCOUNT AND WITHDRAWN SOON AFTER THE DEP OSITS WERE MADE IN THE ACCOUNT. THEREFORE, THE AO DISBELIEVED THE GENUINENESS OF THE EXPENDITURE AND ACCORDINGLY DISALLOWED THE ENTIRE EXPENDITURE OF RS.2,46,45,671/ - . 4. FOR THE A.Y. 2014 - 15, THE ASSESSEE HAD INCURRED FFB EXPENDITURE OF RS.3,17,99,320/ - AND THE AO DISALLOWED 80% OF THE ABOVE EXPENDITURE AMOUNTING TO RS.2,54,39,456/ - ON IDENTICAL FACTS. 5. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) CALLED FOR THE REPORT FROM THE ASSESSEE WITH REGARD TO T HE ACTIVITY, THE PROCESS OF COLLECTION OF FRESH FRUITS FROM COLLECTION CENTERS, HANDLING AND TRANSPORTATION OF FRESH FRUITS I.E. LOADING, UNLOADING AND TRANSPORTATION OF FRESH FRUITS FROM COLLECTION CENTERS TO THE MANUFACTURING UNIT AND AFTER COMPLETION O F THE PROCESS, LOADING, UNLOADING OF THE EMPTY BUNCHES TO THE DUMPING PLACES TO COMPLY WITH THE POLLUTION CONTROL NORMS WHICH WAS SUBMITTED IN DETAIL TO THE LD.CIT(A). THE LD.CIT(A) AFTER GOING THROUGH THE NOTE SUBMITTED BY THE ASSESSEE 9 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM CONVINCED THAT THE SAID EXPENDITURE IS INEVITABLE AND OBSERVED THAT THE MODUS OPERANDI ADOPTED BY THE ASSESSEE FOR BOOKING THE ABOVE EXPENDITURE WAS NOT IN ORDER. THE LD.CIT(A) FURTHER GIVEN A FINDING THAT THE ASSESSEE CANNOT RUN THE BUSINESS WITHOUT THE ABOVE BASIC OP ERATIONS AND IS BOUND TO INCUR THE EXPENDITURE TOWARDS THE JOBS NARRATED IN THE NOTE GIVEN BY THE ASSESSEE FOR PROCUREMENT OF FFB AND FOR CLEARANCE OF EMPTY FFBS. THEREFORE, HELD THAT THE DISALLOWANCE OF 30% OF EXPENSES IS REASONABLE. ACCORDINGLY, DIRECT ED THE AO TO RESTRICT THE EXPENSES TO THE EXTENT OF 30% AND DELETE D THE BALANCE ADDITION. 6. FOR THE A.Y. 2014 - 15, THE AO, HAS DISALLOWED 80% OF THE EXPENDITURE WHICH WAS ALSO FOUND TO BE UNREASONABLE BY THE LD.CIT(A). SINCE THE FACTS ARE IDENTICAL, WITH THAT OF THE A.Y.2013 - 14, THE LD.CIT(A) DIRECTED THE AO TO RESTRICT THE DISALLOWANCE TO 30% OF THE EXPENDITURE AND ALLOWED THE RELIEF OF 70%. 7. AGAINST THE ORDER OF THE LD.CIT(A), THE REVENUE HAS FILED APPEALS BEFORE US AND THE ASSESSEE FILED CROSS APPEA LS CHALLENGING THE CONFIRMATION OF ADDITION OF REMAINING 30%. THE ASSESSEE ALSO FILED CROSS OBJECTIONS SUPPORTING THE ORDER OF THE LD.CIT(A). 10 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM 8 . T HE LD.DR SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS, THE AO RECORDED THE STATEMENT U/S 131 FROM THE CONTRACTORS I.E B.VASUDEV RAO, V.PADMA, P.SATYANARAYANA, K.VAMSIKRISHNA AND V.HIMA BINDU ALL OF THEM HAVE CATEGORICALLY DENIED HAVING THE KNOWLEDGE OF CONTRACT WORK WITH THE ASSESSEE COMPANY. IN THE CASE OF SHRI B.VASUDEV RAO, LD.D.R STATED THAT HE IS WO RKING AS SUPERVISOR IN THE ASSESSEE COMPANY AND WAS NOT AWARE OF THE TRANSACTIONS IN HIS BANK ACCOUNT AND THE FRESH FRUIT BUNCH HANDLING EXPENSES. HE HAS NOT ENTERED INTO ANY CONTRACT WITH THE ASSESSEE AND STATED THAT HE HAD NOT RECEIVED ANY AMOUNT AND NEI THER SUBMITTED THE BILLS NOR RECEIVED THE AMOUNT. THE COMPANY USED TO DEPOSIT THE AMOUNT INTO HIS BANK ACCOUNT, TAKES SIGNATURES ON THE BLANK CHEQUES. AS OBSERVED BY THE AO, THE MONIES WERE DEPOSITED IN HIS BANK ACCOUNT AND WITHDRAWN NO SOONER IT WAS DEPO SITED BY SOME OTHER EMPLOYEES OF THE COMPANY. AS PER THE STATEMENT RECORDED FROM SMT.V.PADMA, THOUGH SHE HAD ACCEPTED THAT SHE HAS UNDERTAKEN THE WORK OF HANDLING AND TRANSPORTATION OF RAW MATERIAL, THE ENTIRE BUSINESS ACTIVITY WAS SAID TO BE TAKEN CARE OF BY HER HUSBAND SHRI P.SATYANARAYANA WHICH IS UNBELIEVABLE. THE STATEMENT RECORDED FROM OTHER CONTRACTORS ALSO REVEALS THAT THEY DO NOT HAVE CAPACITY TO HANDLE THE WORK AND THE SIGNATURES OF THE ABOVE PERSONS WERE OBTAINED 11 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM BY THE COMPANY IN ADVANCE AND THE BILLS WERE RAISED AS AND WHEN REQUIRED. THERE WAS NO CONTRACT BETWEEN THE COMPANY AND THE CONTRACTORS AND THERE WERE NO SUPPORTING EVIDENCES PRODUCED BY THE CONTRACTORS. IN CASE OF V.HIMA BINDU, SHE DID NOT RESPOND TO THE SUMMONS ISSUED U/S 131. THE E NTIRE PROCESS OF STATEMENTS RECORDED FROM THE CONTRACTORS, CLEARLY SH OWS THAT THE BOGUS EXPENDITURE WA S BOOKED IN THE NAMES OF THE EMPLOYEES AND THEIR FAMILY MEMBERS WITH INTENTION TO REDUCE THE TAXABLE INCOME AND TO EVADE THE TAX. THE PERSONS STATED TO B E INVOLVED IN VARIOUS WORKS CONTRACTS NEVER EXECUTED ANY SUCH CONTRACT WORK AND THEY DO NOT HAVE RESOURCES TO CARRY OUT SUCH ACTIVITIES OF THE COMPANY. THEREFORE, ARGUED THAT THE AO HAS RIGHTLY DISALLOWED THE ENTIRE EXPENDITURE FOR THE A.Y. 13 - 14 AND 80% FOR THE A.Y.2014 - 15 AND THE LD.CIT(A) ERRED IN GIVING 70% OF THE RELIEF, HENCE, ARGUED THAT THE ORDERS OF THE LD.CIT(A) TO BE SET ASIDE AND RESTORE THE ASSESSMENT ORDERS. 9. PER CONTRA, THE LD.AR SUBMITTED THAT THE ASSESSEE IS IN THE BUSINESS OF PRODUCTI ON OF PALM OIL, EXTRACTION AND DELIVERY OF PALM OIL TO MAJOR VANASPATHI MARKETS IN INDIA. IN THE COURSE OF MANUFACTURE OF PALM OIL, THE ASSESSEE HAD INCURRED THE MANUFACTURING EXPENSES WITH REGARD TO THE COLLECTION OF FRESH FRUITS, LOADING, UNLOADING AND TRANSPORTATION OF FRESH 12 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM FRUIT BUNCHES TO THE FACTORY AND FROM THE FACTORY THE EMPTY FRUITS REQUIRED TO BE CLEARED AND DUMPED IN PROPER PLACE AS PER THE POLLUTION CONTROL NORMS AND TO PROVIDE SPACE IN THE FACTORY FOR PRODUCTION PROCESS TO REPLACE THE FRESH DELIVERIES OF FFBS. FOR THE PURPOSE OF CLEARANCE OF FFB ALSO, THE SAME PROCESS OF LOADING, UNLOADING, TRANSPORTATION, UNLOADING CHARGES ARE TO BE INCURRED. IN THE PROCESS, THE ASSESSEE HAD INCURRED A SUM OF RS.2,46,45,671/ - FOR THE A.Y. 2013 - 14 AND RS.3, 17,99,320/ - INCURRED FOR THE A.Y. 2014 - 15 WHICH WAS GENUINELY INCURRED BY THE ASSESSEE COMPANY. THE EXPENDITURE IS GENUINE AND REASONABLE AND ON THE SIMILAR FACTS, THE AO HAS ALLOWED THE EXPENDITURE IN EARLIER YEARS. COMPARED TO THE EXPENDITURE INCURRED I N THE EARLIER YEARS, THE EXPENDITURE INCURRED IN THE IMPUGNED ASSESSMENT YEAR IS REASONABLE. THE LD.AR FURNISHED THE COMPARATIVE CHART FOR THE EARLIER ASSESSMENT YEARS. THOUGH THE MODUS OPERANDI ADOPTED BY THE ASSESSEE FOR BOOKING THE EXPENDITURE IS NOT IN ORDER, THE ENTIRE EXPENDITURE CANNOT BE DISALLOWED BY THE AO FOR THE A.Y. 2013 - 14 AND THE DISALLOWANCE OF 80% OF EXPENDITURE IN THE A.Y. 2014 - 15 IS ALSO UNREASONABLE AND ARBITRARY. THE LD.A.R FURTHER STATED THAT THERE WAS NO OTHER EXPENDITURE OF TRANSPO RTATION, LOADING, UNLOADING CHARGES CLAIMED BY THE ASSESSEE IN THE P&L ACCOUNT UNDER ANY OTHER HEAD. THEREFORE, ARGUED 13 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM THAT THE EXPENDITURE IS REASONABLE AND GENUINE, HENCE, REQUESTED TO SET ASIDE THE ORDERS OF THE LD.CIT(A) AND ALLOW THE ENTIRE EXPENDIT URE. THE LD.AR FURTHER SUBMITTED THAT THE CONDITIONAL SURRENDER OF INCOME BY THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS WAS SHEER IGNORANCE AND SHOULD NOT BE TAKEN COGNIZANCE. FURTHER THE LD.AR ARGUED THAT HAVING NOT ACCEPTED THE CONDITIONAL OFFE R GIVEN AT THE TIME OF ASSESSMENT PROCEEDINGS, ACCEPTANCE HAS LOST ITS RELEVANCE AND THE DEPARTMENT SHOULD NOT HARP ON THE SAME. THEREFORE, REQUESTED TO SET ASIDE THE ORDERS OF THE LD.CIT(A) AND ALLOW THE ENTIRE EXPENDITURE. 10. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE AO HAS DISALLOWED THE ENTIRE EXPENDITURE OF TRANSPORTATION AND HANDLING CHARGES FOR FRESH FRUIT BUNCHES FOR THE A.Y. 2013 - 14 AND DISALLOWED 80% OF THE EXPENDITURE FOR THE A.Y.2014 - 15 WHICH INDICATES THAT FFB EXPENDITURE IS NOT BOGUS . THE NATURE OF EXPENDITURE INCURRED BY THE ASSESSEE IS THAT OF LOADING, UNLOADING CHARGES AT COLLECTION CENTERS, TRANSPORTATION EXPENSES FROM COLLECTION CENTER TO MANUFACTURING UNIT, FURTHER LOADING AND U NLOADING CHARGES FROM MANUFACTURING CENTRE TO THE EMPTY BUNCHES CLEARANCE CENTRE AND THE IDENTICAL EXPENDITURE OF 14 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM TRANSPORTATION FROM MANUFACTURING UNIT TO DUMPING LOCATION AND UNLOADING CHARGES AT THE DUMPING LOCATION. THESE ACTIVITIES ARE NECESSARY FOR ANY MANUFACTURING OF PALM OIL. THE LD.CIT(A) HAS CALLED FOR THE DETAILED NOTE ON THE PROCESS OF THE ACTIVITY WHICH WAS FURNISHED BY THE ASSESSEE AND THE LD.CIT(A) HAS VERIFIED THE ENTIRE ACTIVITIES AND ALLOWED THE APPEAL OF THE ASSESSEE PARTLY. THE NOTE FURNISHED BY THE ASSESSEE THROWS COMPLETE DETAILS OF ACTIVITIES AND THE REASONS FOR INCURRING THE EXPENDITURE AT VARIOUS STAGES. IN THE PROCESS MOST OF THE ACTIVITIES ARE TO BE UNDERTAKEN IN UNORGANIZED SECTOR. THE SAID NOTE IS MADE AVAILABLE IN THE CIT(A ) ORDER IN PAGE NO. 6 TO 9 FOR THE A.Y.2013 - 14 WHICH READS AS UNDER : 'NOTE ON REASONABLENESS OF EXPENSES DISALLOWED: A: TRANSPORTATION EXPENSES : PALM FRUIT IS AN AGRO PRODUCT AND IS REGULATED BY THE DEPARTMENT OF HORTICULTURE, GOVERNMENT OF ANDHRA PRADES H AND THE COMPANY CAN PROCURE THE FRESH FRUIT BUNCHES (FFBS) ONLY FROM THE AREA (MANDALS) ALLOTTED TO IT BY THE DEPARTMENT. THE COMPANY HAS BEEN ALLOTTED FOLLOWING MANDALS IN VIZIANAGARAM DISTRICT FOR PROCUREMENT : 1 . GARIVIDI 2.CHEEPURUPALLI 3. GURLA 4. NELLIMARLA 5.MERAKAMUDIDAM 6. RAMABHADRAPURAM 7. PACHIPENTA 8.SALUR 9.MAKKUVA THE DISTANCE OF THE ABOVE LOCATIONS FROM THE FACTORY OF THE APPELLANT IS AS UNDER : COLLECTION CENTRE DISTANCE FROM FACTORY 1 . DUGGERU 100 KM 2 . B S VALASA 95 KM 15 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM 3 . MARKONDAPUT TI 90 KM 4 . GAISALA 90 KM 5 .. SAIURU 65 KM 6 . GOGADAVALSA 85 KM 7 . CHINTALVAISA 85 KM 8 . KANDUIAPADA M 85 KM 9 . G DORAVALSA 85 KM 10 0 TUNDA 95 KM 11 1 GAMDI LOCAL < 50 KM THE COMPANY PROCURED TOTAL QUANTITY OF 24569.460 MTS OF FFBS OF PALM FRUIT AND THIS FACT IS VERIFIABLE FROM THE REPORT PUBLISHED BY THE DEPARTMENT OF HORTICULTURE ON ANNUAL BASIS. THE RATE FOR TRANSPORTATION WAS FIXED ON PER NIT BASIS DEPENDING ON DISTANCES AS UNDER: TRANSPORTATION RATE PER MT : 1. RS.450/ - = DISTANCE 50 TO 100 KM 2. RS.300/ - = DISTANCE BELOW 50 KM THESE RATES ARE FIXED BY LOCAL UNIONS OF LORRY TRANSPORTERS AND ARE VERIFIABLE EASILY. OUT OF THE 11 LOCATIONS, ONLY GARIVIDI IS OF LESS THAN 50KM DISTANCE AND ALL THE REMAINING LOCATIONS ARE AT A DISTANCE OF MORE THAN 50 KMS. THE QUANTITY COLLECTED FROM EACH OF THE ABOVE 10 LOCATIONS IS AS UNDER: COLLECTION CENTRE QUANTITY PROCURED (IN MT) GARIVIDI 1437.690 OTHER LOCATIONS 23131.950 THE TOTAL TRANSPORTATION CHARGES ON THE BASIS OF THE AFORESAID DETAILS WORKS OUT AS UNDER: 23131.950*450 RS.1,04,09,377 1437.690*300 RS. 4,31,307 TOTAL RS.1,08,40,684 THUS, THE TRANSPORTATION CHARGES CLAIMED BY THE APPELLANT ARE VERY MUCH REASONABLE. B: FFB HANDLING CHARGES: THE EXPENDITURE INCURRED UNDER THIS HEAD IS TOWARDS THE FOLLOWING JOBS: 16 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM UNLOADING FFBS FROM VEHICLES GRADING FOR UNRIPE QUALITY SEGREGATING OF LONG STACK BUNCHES CUTTING THE SAME AS PER NORMS LOADING AND UNLOADING FFBS ON WEIGHING MACHINE FOR WEIGHMENT IN SMALL BASKET OF 200 / 500 KGS HEAPING AND LOADING INTO VEHICLES FOR TRANSPORTATION DISPOSE - OFF THE WASTE GENERATED DURING SEGREGATION AND CUTTING FOR CARRYING OUT THE AFORESAID OPERATIONS LARGE NUMBER OF LABOR IS REQUIRED TO COMPLETE THE COLLECTION AND LOADING WORK FASTER TO ENSURE THAT THE FFBS REACH THE FAC TORY IN TIME, WITHOUT BEING SOILED AS THE FFBS ARE TO BE PROCESSED WITHIN 24 HOURS OF HARVESTING. THE OIL PALM FFB (FRESH FRUIT BUNCH) IS MOST DIFFICULT FRUIT TO HANDLE. IT HAS THORNS AND IT IS VERY DIFFICULT FOR THE MANUAL LABOR TO HANDLE THE SAME. DUE T O THE VOLUME DENSITY RATIO OF THE FFB, UNLESS THE TRUCK BODY IS MODIFIED WITH HIGHER SIDES, OPTIMUM QUANTITY CANNOT BE LOADED AS PER THE TRUCK CAPACITY. HENCE THE LABOUR HAS TO CLIMB UP A RAMP TO LOAD THE HIGH TRUCK. THE PROCUREMENT IS THROUGHOUT THE YEAR AND HENCE THE LABOUR HAS TO LOAD THE MATERIAL EVEN AT NIGHT, HOLIDAYS, SUNDAY OR ANY FESTIVAL DAYS. LABOUR DEMAND EXTRA CHARGES FOR WORKING ON OTHER THAN WORKING DAYS AND WORKING HOURS. THE NORMAL WAGES PAYABLE IN THE ABOVE LOCATIONS ARE RS.400 PER DAY PER PERSON. CONSIDERING ON AN AVERAGE 7 PERSONS ARE REQUIRED, THE TOTAL WAGES FOR EACH DAY WORKS OUT TO RS.2800 PER DAY. ON AN AVERAGE THESE GROUP OF 7 PERSONS CAN HANDLE ONLY 1OMT PER DAY. THUS, THE CHARGES PER MT WORK OUT TO RS.280 PER MT. THE TOTAL CHARGES OF RS.60,31,515 PAID BY THE COMPANY WORKS OUT TO RS.245/ - PER MT AS THE TOTAL QUANTITY PROCURED WAS 24569.460 MT. THIS IS MARGINALLY LESS THAN AFORESAID CALCULATION OF RS.280 PER MT. C : FFB CAGES LOADING AND UNLOADING CHARGES : EXPENDITURE INCURRED UNDER THIS HEAD IS TOWARDS LOADING FFBS IN THE CAGES (CAPACITY OF 3 MT EACH) FOR PROCESSING. THE TOTAL CAGES HANDLED WERE 8191 DURING THE YEAR AND THE COMPANY INCURRED RS.32,76,400 @RS.400 PER CAGE. D : EMPTY BUNCHES OF FFBS HANDUNG CHARGES : THE EXPENDITURE UNDER THIS H EAD TO CARRY OUT THE FOLLOWING JOBS: LOAD THE EMPTY BUNCHES IN VEHICLE 17 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM CARRY THE VEHICLE TO THE SPECIFIED PLACES FOR DUMPING DUMPING YARDS ARE APPX 5 KMS AWAY FROM THE FACTORY UNLOAD THE VEHICLES AT THE DUMPING YARDS THUS THE OVERALL JOB INVOLVES LABOR WORK AS WELL AS TRANSPORTATION. FOR THE PURPOSE OF TRANSPORTATION, MOSTLY SMALL VANS ARE USED FOR DUMPING AS BIG TRUCKS ARE NOT CONVENIENT TO OPERATE IN LOCAL LIMITS. THESE TRANSPORTATION CHARGES PAID ARE AT RS. 1000 FOR A LOAD OF 5 MT AND WORKS BUT TO RS. 200 PER MT. FURTHER, THE COMPANY HAD TO INCUR LABOR CHARGES WHICH WORKS OUT TO RS.250 PER MT. THE COMPANY HANDLED 9825 MT OF EMPTY BUNCHES AND THE TOTAL AMOUNT PAID RS.44,21,250 WORKED OUT TO RS.450 PER MT.' THE ABOVE NOTE CLEARLY INDICATES THAT THE EXPE NDITURE INCURRED RELATING TO THE FFBS APPEARS TO BE INEVITABLE AND THE BUSINESS CANNOT RUN WITHOUT INCURRING SUCH EXPENSES. FROM GOING THROUGH THE P&L ACCOUNT, IT REVEALS THAT THE ASSESSEE DID NOT DEBIT ANY OTHER EXPENDITURE RELATING TO THE COLLECTION OF FRESH FRUIT BUNCHES AND CLEARANCE OF EMPTY BUNCHES UNDER ANY OTHER HEAD AND THERE IS NO DISPUTE ON THIS ISSUE. THE ASSESSEE HAS ADOPTED THE METHOD OF CONTRACTUAL PAYMENTS INSTEAD OF FACTUAL AND ACTUAL EXPENDITURE AND THE MODUS OPERANDI ADOPTED BY THE ASS ESSEE FOR BOOKING THE ABOVE EXPENDITURE IS NOT IN ORDER AS RIGHTLY OBSERVED BY THE LD.CIT(A). HOWEVER, AFTER GOING THROUGH THE NOTE, WE AGREE WITH THE OBSERVATION OF THE LD.CIT(A) THAT WITHOUT CARRYING ON THE ABOVE ACTIVITIES AND INCURRING THE EXPENDITURE, THE COMPANY CANNOT RUN ITS BASIC OPERATIONS AND MAKE FINISHED PRODUCT. IT IS BASIC REQUIREMENT FOR THE COMPANY TO COLLECT THE FRESH FRUIT BUNCHES OF PALM FROM COLLECTION CENTERS TO THE MANUFACTURING 18 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM UNIT AND CLEAR THE EMPTY BUNCHES AS PER THE POLLUTION CONTROL NORMS. THE AO DID NOT MAKE ANY PERSONAL INSPECTION TO ESTIMATE THE PROBABLE / REASONABLE EXPENDITURE TO BE INCURRED ON SAID ACTIVITIES OF THE COMPANY. THE AO ALSO DID NOT REJECT THE BOOKS OF ACCOUNTS WHEN HE SUSPECTED THE GENUINENESS OF EXPENDITUR E. THE ASSESSEE HAS SUBMITTED THE COMPARATIVE CHART OF THE EXPENDITURE INCURRED IN THE EARLIER YEARS AND ON COMPARATIVE STUDY, THE EXPENDITURE ALLOWED BY THE CIT(A) APPEARS TO BE REASONABLE. THOUGH THE IDENTICAL EXPENDITURE WAS DEBITED IN THE EARLIER YEARS, THE AO DID NOT MAKE ANY DISALLOWANCE. THE LD.DR OR THE AO DID NOT PLACE ANY EVIDENCE TO SHOW THAT THE PROCESS EXPLAINED BY THE ASSESSEE IN THE NOTE IS FAULTY OR THE EXPENDITURE ALLOWED BY THE LD.CIT(A) IS UNREASONABLE AND OR EXCESSIVE. THEREFORE, CO NSIDERING THE FACTS AND MERITS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT DISALLOWANCE OF EXPENDITURE TO THE EXTENT OF 30% APPEARS TO BE REASONABLE. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEALS OF THE REVENUE AS WELL A S THE ASSESSEE. 11. THE AO RAISED THE GROUND STATING THAT THE ASSESSEE HAD AGREED FOR THE DISALLOWANCE OF EXPENDITURE AND CAME ON APPEAL WHICH IS NOT ACCEPTABLE AND LD.CIT(A) SHOULD HAVE CONSIDERED THAT THE ADDITION WAS MADE ON AGREE D BASIS . WE HAVE OBSER VED FROM THE ASSESSMENT ORDER THAT THE 19 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM ASSESSEE HAD AGREED FOR THE DISALLOWANCE DUE TO PAUCITY OF TIME AND SUBJECT TO NOT TO INITIATE THE PENALTY PROCEEDINGS. THE ASSESSING OFFICER DID NOT ACCEPT THE CONDITIONAL OFFER MADE BY THE ASSESSEE AND PROCEEDED TO COMPLETE THE ASSESSMENT AND INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C). ONCE THE AO REJECTS THE CONDITIONAL OFFER, THE SAME LOSES ITS CHARACTER OF BINDING NATURE AND IS NO LONGER VALID. HENCE THE REVENUES APPEAL ON THIS GROUND UNTENABLE, HENCE, D ISMISSED. 12. THE ASSESSEE FILED CROSS OBJECTIONS, SUPPORTING THE ORDER OF THE LD.CIT(A). SINCE WE HAVE UPHELD THE ORDER OF THE LD.CIT(A), CROSS OBJECTIONS BECOMES INFRUCTUOUS, HENCE DISMISSED. 13. FOR THE A.Y.2013 - 14, THE ASSESSEE RAISED ANOTHER GROUND RELATING TO THE ADDITION OF RS.21,000/ - PERTAINING TO THE DONATIONS. THE AO MADE THE ADDITION OF RS.21,000/ - WHICH WAS STATED TO BE INCURRED FOR DONATIONS. SINCE IT WAS NOT ALLOWABLE AS EXPENDITURE, THE LD.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO. D URING THE APPEAL HEARING, THE LD.AR DID NOT MAKE ANY ARGUMENT ON THIS ISSUE. THEREFORE, THE APPEAL OF THE ASSESSEE ON THIS GROUND IS DISMISSED AS NOT PRESSED. 20 I.T.A. NO .415,416,474,475 /VIZ/2018 AND CO NO.132 &133/VIZ/2018 M/S RADHIKA VEGETABLES OILS (P) LTD., VIZIANAGARAM 14. IN THE RESULT, THE APPEALS OF THE REVENUE AS WELL AS THE ASSESSEE AND CROSS OBJECTIONS OF T HE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL 2019. SD/ - SD/ - ( . . ) ( . ) ( D.S. SUNDER SINGH ) (V. DURGA RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER /VISAKHAPATNAM /DATED : 30 .04.2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1 . / THE REVENUE ASST.COMMISSIONER OF INCOME TAX , CIRCLE - 3(1) , VISAKHAPATNAM 2 . / THE ASSESSEE - M/S RADHIKA VEGETABLE OILS(P) LTD.,SREERAM NAGAR GARIVIDI, VIZIANAGARAM 3. / THE PR. COMMISSIONER OF INCOME TAX - 1 , VISAKHAPATNAM 4 . ( ) / THE COMMISSIONER OF INCOME - TAX (APPEALS) - 1 , VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM