, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , . .. . . .. . , , , , '# ' $ '# ' $ '# ' $ '# ' $ BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.116/AHD/2011 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR : 2007-08) SHRI NARPATSINGH A.RATHOD AT & POST UVA RAPUT FALIA, BARDOLI DISDT.SURAT & & & & / VS. THE INCOME TAX OFFICER WARD-6(3), SURAT ) '# ./*+ ./ PAN/GIR NO. : AIPPR 6964 H ( ), / // / APPELLANT ) .. ( -.), / RESPONDENT ) ), / ' / APPELLANT BY : SHRI MEHUL SHAH -.), 0 / ' / RESPONDENT BY : SHRI VIVEK OJHA, SR.DR &1 0 # / / / / DATE OF HEARING : 23/05/2014 23( 0 # / DATE OF PRONOUNCEMENT : 30/5/14 '4 / O R D E R PER SHRI T.R. MEENA, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-IV, SURAT D ATED 09/09/2010 PERTAINING TO ASSESSMENT YEAR 2007-08. THE ASSESSE E HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN PASSING EX -PARTE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO ASS ESSEE. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX(APP EALS) AHS ERRED ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 2 - IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER I N DISALLOWING RS.7,57,807/- OUT OF PURCHASES. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN DISALLOWING RS.43,152/- OUT OF EXPENSES. 4. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX(APP EALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER I N MAKING ADDITION OF RS.17,31,629/- ON ACCOUNT OF DIFFERENCE IN BANK ACCOUNT & SALES. 5. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION/DISA LLOWANCES MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME- TAX(APPEALS) MAY PLEASE BE DELETED. 6. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE APPEAL. 2. GROUND NO.1 HAS NOT BEEN PRESSED BY THE LD.COUNS EL FOR THE ASSESSEE AND, THEREFORE, THE SAME IS DISMISSED AS S UCH. 3. GROUND NOS.2,3&4ARE AGAINST CONFIRMING THE DISAL LOWANCE/ ADDITION OF RS.7,57,807/- OUT OF PURCHASES, RS.43, 152/- OUT OF EXPENSES AND RS.17,31,629/- ON ACCOUNT OF DIFFERENCE IN BANK ACCOUNT AND SALES RESPECTIVELY. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD ENGAGED IN THE BUSINESS OF CONFECTIONARY AND PROVIS ION ITEMS DURING THE YEAR UNDER CONSIDERATION. THE AO ASKED TO PRODUCE BOOKS OF ACCOUNTS, BILLS, VOUCHERS, ETC. AT THE TIME OF ASSESSMENT PR OCEEDINGS WHICH WAS NOT PRODUCED BY THE ASSESSEE BEFORE HIM. THEREFORE, HE TREATED THE PURCHASES AS NON-GENUINE. THE AO GAVE REASONABLE OPPORTUNITY OF BEING HEARD ON THIS ISSUE AND AFTER CONSIDERING THE ASSESSEES REP LY, THE AO MADE ADDITION UNDER THE FOLLOWING HEADS:- (I) DISALLOWANCE OUT OF PURCHASES DURING THE YEAR, THE ASSESSEE HAS SHOWN TOTAL PURCH ASES OF RS.30,07,228/-. AS THE ASSESSEE DID NOT PRODUCE TH E BOOKS OF ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 3 - ACCOUNTS, BILLS, VOUCHERS, ETC. BEFORE THE AO, THER EFORE AO HELD THAT PURCHASES COULD NOT BE VERIFIED AND BY RELYING THE ORDER OF VIJAY PROTEINS LTD. REPORTED AT 55 TTJ 76, HE DISAL LOWED 25% OUT OF THE TOTAL PURCHASES OF RS.30,07,228/- WHICH COME S TO RS.7,51,807/-. (II) DISALLOWANCE OUT OF EXPENSES THE ASSESSEE CLAIMED IN THE P&L A/C. TOTAL EXPENSES OF RS.2,76,021/-. IN THE ABSENCE OF BOOKS OF ACCOUNT S, BUT ON THE BASIS OF COMPUTER PRINT-OUT SUBMITTED BY THE LD.COU NSEL FOR THE ASSESSEE ABOUT THE EXPENSES, THE AO DISALLOWED RS. 43,152/- ON ACCOUNT OF NON-VERIFIABLE. (III) ADDITION ON ACCOUNT OF DIFFERENCE IN BANK DEPOSITS AND SALES IT WAS FOUND BY THE AO THATIN CURRENT BANK ACCOUNT NO.0094- A42706-050 WITH INDUS IND BANK LTD., BARDOLI BRANCH THE TOTAL DEPOSITS WERE RS.49,32,992/-, WHEREAS THE ASSESSEE HAS SHOWN SALES TO THE TUNE OF RS.32,01,363/-, THEREFORE, THE ASSESSEE WAS ASKED TO RECONCILE THE DEPOSITS INTO BANK ACCOUNT. THE APPELLANT HAD NOT SUBMITTED ANY DETAIL EXCEPT A CERTIFICATE F ROM MAHUVA PRADESH SAHAKARI KHAND UDHYOG MANDALI LTD. IN THE N AME OF RAHUL KUMAR NARPATSINH RATHOD STATING THAT THE SAID MANDALI HAS PAID RS.5,88,200/- DURING F.Y. 2006-07 TO SHRI RAHU L KUMAR NARPATSINH RATHOD. BUT THERE IS NO EVIDENCE THAT T HE SAID MANDALI HAS ACTUALLY GIVEN THE LOAN OF RS.5,88,200/-. EVEN IF IT IS BELIEVED THAT THE LOAN HAS BEEN GIVEN, THEN THE SAME IS IN V IOLATION OF SECTION 269SS OF THE ACT AS THE LOAN WAS GIVEN IN C ASH. IT WAS CONCLUDED BY THE AO THAT THE AMOUNT DEPOSITED IN BA NK ACCOUNT IN ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 4 - CASH WAS NOTHING BUT ACCOUNTED INCOME OF THE ASSESS EE. THE PAYMENT FROM THE BANK WERE MADE BY A/C.PAYEE CHEQU E ONLY. SINCE THE ASSESSEE HAD NOT PRODUCED THE BANK ACCOUN T WITH THE DESTINATION OF CHEQUES, IT IS PRESUMED BY HIM THAT THE CHEQUES WERE ISSUED TO THE CREDITORS. IF IT WAS SO AND TH E ASSESSEE HAD NOT MADE SALES OUT OF IT, THEN THE SAME SHOULD HAVE BEE N REFLECTED IN THE STOCK, BUT THIS WAS NOT THE POSITION. AFTER CO NSIDERING THE ASSESSEES REPLY, HE MADE ADDITION OF RS.17,31,649/ - U/S.68 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE C ARRIED THE MATTER BEFORE THE LD.CIT(A), WHO DISMISSED THE APPEAL OF T HE ASSESSEE BY OBSERVING AS UNDER:- (REGARDING GROUND NO.2 & 3 OF THIS APPEAL): 3.2. THE APPEAL HEARING HAD BEEN FIXED ON FOUR DIF FERENT OCCASIONS BUT NO SUBMISSIONS HAVE BEEN MADE ON ANY OCCASION. SINCE THE A.R., DURING THE COURSE OF ASSESSMENT, EX PRESSED INABILITY TO PRODUCE ANY BOOKS OF ACCOUNTS OR SUPPORTING EVID ENCES, LIKE BILLS, VOUCHERS ETC. AND NO SUBMISSIONS HAVE BEEN M ADE DURING THE APPEAL PROCEEDINGS, I AM CONSTRAINED TO UPHOLD THE ACTION OF THE A.O. IN DISALLOWING 25% OF PURCHASES AND 25% OF EXP ENSES OTHER THAN SALARY AND BANK INTEREST. THE ADDEITON AMOUNT ING TO RS.7,K51,807/- AND RS.43,152/- ARE CONFIRMED. (REGARDING GROUND NO.4 OF THIS APPEAL): 4. GROUND NO.3 IS AGAINST THE A.O. MAKING AN ADDITION OF RS.17,31,629/- ON ACCOUNT OF DIFFERENCE IN CREDITS IN BANK ACCOUNT AND SALES. DURING THE COURSE OF ASSESSMENT PROCEED INGS, IT WAS OBSERVED BY THE A.O. THAT THE TOTAL DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT DURING THE YEAR UNDER CONSIDERATION W AS RS.49,32,992/-, WHEREAS TOAL SALES SHOWN BY THE APP ELLANT WAS ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 5 - ONLY RS.32,01,363/-. THE APPELLANT WAS ASKED TO SH OW CAUSE AS TO WHY SAID DIFFERENCE AMOUNTING TO RS.17,31,629/- NOT BE TREATED AS HIS INCOME. THE APPELLANT WAS ALSO ASKED TO RECO NCILE THE DEPOSITS IN THE BANK ACCOUNT. IN RESPONSE, THE APP ELLANTS A.R. DID NOT SUBMIT ANY DETAILS EXCEPT A CERTIFICATE FROM MA HUVA PRADESH SAHAKARI KHAND UDHYOG MANDLI STATING THAT THE SAID MANDLI HAD PAID RS.5,88,200/- TO THE APPELLANT DURING F.Y. 200 6-07. THE CERTIFICATE DID NOT GIVE THE NATURE OF THE SAID PAY MENTS. THE APPELLANT DID NOT PRODUCE BANK BOOK BEFORE THE A.O. IN ABSENCE OF ANY EXPLANATION SUPPORTING EVIDENCES OR BANK BOOKS, THE NATURE OF CREDITS IN THE BANK ACCOUNT REMAINED UNEXPLAINED AN D THESE WERE TREATED AS UNEXPLAINED CASH CREDITS U/S.68 OF THE I .T. ACT BY THE A.O. HE THEREFORE, MADE AN ADDITION OF RS.17,31,62 9/-. 4.1. AS MAY BE RECALLED THE APPEAL OF THE APPELLANT WAS FIXED FOR HEARING ON FOUR DIFFERENT OCCASIONS BUT NO SUBMISSI ONS HAVE BEEN MADE. HOWEVER, IN THE GROUNDS OF APPEAL THE APPELL ANT MENTIONED THAT THE FIGURES OF CREDITS IN THE BANK ACCOUNT CAN NOT BE CO-RELATED WITH THE FIGURE OF SALES AS THE DEPOSITS ARE ON ACC OUNT OF AGRICULTURE INCOME, CASH WITHDRAWN & RE-DEPOSITED, ETC. AND THAT THESE CAN BE EXPLAINED ON THE BASIS OF BANK BOOK. 4.2. HOWEVER, THE SAID EXPLANATION GIVEN ALONG WITH THE GROUND OF APPEAL IS UNACCEPTABLE AS NO BOOKS OF ACCOUNTS W ERE PRODUCED BEFORE THE A.O. AND THE A.R. HAD EXPRESSED HIS INAB ILITY TO PRODUCE ANY BOOKS OF ACCOUNTS AND SUPPORTING DETAILS. THE BANK BOOK WAS ALSO NOT PRODUCED BEFORE THE A.O. IT HAS NEITHER B EEN PRODUCED BEFORE ME DESPITE SEVERAL OPPORTUNITIES. NO DETAIL S OF ANY AGRICULTURE INCOME HAS BEEN PROVIDED WITH THE APPEA L MEMO. NO EXLANATION AS REGARDS RECEIPT FROM MAHUVA RADISH SA HAKARI KHAND UDHYOG MANDLI HAS BEEN SUBMITTED. IN ANY CAS E, THIS IS INSUFFICIENT TO JUSTIFY THE TOTAL DIFFERENCE. THE NATURE OF CREDIT ENTRIES IN THE BANK THEREFORE REMAINED TO BE EXPLAI NED AS TO THEIR NATURE AND SOURCE. THEREFORE, THE ACTION OF THE AO IN CONSIDERING THE DIFFERENCE IN CREDITS IN BANK AND SALES AS UNEX PLAINED CASH CREDITS IS UPHELD. THIS GROUND OF THE APPELLANT FA ILS. ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 6 - 4. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 4.1. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS IN THE BUSINESS OF CONFECTIONARY AND PROVISIONS ITEMS DURI NG THE YEAR UNDER CONSIDERATION. THE TOTAL SALES HAD BEEN SHOWN BY T HE ASSESSEE AT RS.32.0 LACS ON WHICH NET PROFIT WAS AT RS.1,30,757 @ 4.08 %. THE TOTAL CREDIT ENTRY IN THE BANK ACCOUNT WAS AT RS.49,32,992/- AND THERE WAS A DIFFERENCE BETWEEN SALES DISCLOSED BY THE ASSESSEE AND CREDIT ENTRY SHOWN IN THE BANK ACCOUNT AT RS.17,31,629/-. THE LD.COUN SEL FOR THE ASSESSEE CONTENDED THAT THE AO WAS HAVING THE COPY OF BANK A CCOUNT AT THE TIME OF ASSESSMENT PROCEEDINGS, BUT HE HAD IGNORED THAT THE ASSESSEE HAS DEPOSITED THE CASH IN THE BANK ACCOUNT AND ISSUED T HE CHEQUES FOR VARIOUS PURPOSES. AS PER THE PEAK THEORY, THE MAXIMUM AMOU NT STANDING CREDIT ON A PARTICULAR DAY, I.E. ON 9/9/2006 THE CREDIT BA LANCE WAS RS.2,05,643/-. ALTERNATIVELY, HE ARGUED THAT NET PROFIT ON ALL THE CREDIT ENTRIES @ 5% ESTIMATED ON ASSESSEES INCOME FOR THE YEAR UNDER C ONSIDERATION. HE FURTHER RELIED ON THE JUDGEMENT OF HONBLE JURISDIC TIONAL HIGH COUERT IN THE CASE OF CIT VS. PRESIDENT INDUSTRIES REPORTED A T (2002) 258 ITR 654 (GUJ.); WHEREIN IT WAS HELD THAT UNLESS THERE IS A FINDING TO THE EFFECT THAT INVESTMENT BY WAY OF INCURRING COST IN ACQUIRING GO ODS WHICH HAVE BEEN SOLD HAVE BEEN MADE BY THE ASSESSEE AND THAT HAS AL SO NOT BEEN DISCLOSED. IN THE ABSENCE OF SUCH FINDING OF FACT THE QUESTION WHETHER ENTIRE SUM OF UNDISCLOSED SALE PROCEEDS CAN BE TREATED INCOME OF THE RELEVANT ASSESSMENT YEAR ANSWERS BY ITSELF IN NEGATIVE. THE RECORD GOES TO SHOW THAT THERE IS NO FINDING NOR ANY MATERIAL HAS BEEN REFERRED ABOUT THE SUPPRESSION OF INVESTMENT IN ACQUIRING THE GOODS WH ICH HAVE BEEN FOUND SUBJECT OF UNDISCLOSED SALES. HE FURTHER RELIED U PON THE DECISION OF ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 7 - HONBLE ITAT AHMEDABAD (CAMP AT SURAT) IN THE CASE OF M/S.OM CARTING VS. ITO IN ITA NO.3375/AHD/2007 FOR AY 204 -05, WHEREIN IT WAS HELD THAT ESTIMATION CANNOT BE IRRATIONAL OR AR BITRARY. HE FURTHER RELIED UPON THE DECISION OF ITAT B BENCH AHMEDABA D IN THE CASE OF KESHARBHAI GHAMARBHAI CHAUDHARY VS. ITO REPORTED AT (2012) 23 TAXMANN.COM 273 (AHMEDABAD TRIB.) FOR ESTIMATION OF TRANSPORT BUSINESS. 4.2. AT THE OUTSET, LD.SR.DR SUPPORTED THE ORDER OF THE LD.CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE CASE-LAWS RELIED UPON BY THE LD.COUN SEL FOR THE ASSESSEE. IT IS TRUE THAT WITHOUT PURCHASE NO SALE CAN BE EXECUT ED. THE APPELLANT HAD NOT PRODUCED THE BOOKS OF ACCOUNTS BEFORE THE AO, H OWEVER MADE AVAILABLE COPY OF BANK ACCOUNT TO THE AO ON WHICH A DDITION HAD BEEN MADE. THE APPELLANT HAD SHOWN NET PROFIT ON SALE OF RS.32.01 LAC @ 4.08%. THE AO MADE ADDITION WITHOUT COMPARING ANY CASE IN THE SIMILAR LINE OF BUSINESS @ 25% AND DISALLOWED THE E XPENSES ON ESTIMATED BASIS. HE MADE ADDITION ON ACCOUNT OF DIFFERENCE F OUND BETWEEN THE CREDIT ENTRY IN THE BANK ACCOUNT AND SALE PROCEEDS SHOWN BY THE ASSESSEE AT RS.17,31,629/-. THE AO HAS NOT BROUGHT ANY MATE RIAL ON RECORD THAT THE ASSESSEE HAD MADE PURCHASES OUTSIDE THE BOOKS O F ACCOUNTS. THE SALES INCLUDED THE COST OF PURCHASE PLUS EXPENSES A ND NET PROFIT. THEREFORE, THE WHOLE SALE PROCEEDS CANNOT BE ADDED AS INCOME OF THE ASSESSEE. AS SUGGESTED BY THE LD.COUNSEL FOR THE A SSESSEE THAT 5% ON NET ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 8 - PROFIT OF TOTAL CREDIT ENTRIES, I.E. RS.49,32,992/- BE TAKEN AS INCOME OF THE ASSESSEE WHICH COMES TO RS.2,46,649/-. THE APPELLA NT HAD ALREADY DISCLOSED INCOME AT RS.1,30,757/- AND RETURNED INCO ME AT RS.95,114/-. AFTER REDUCING THE AMOUNT OF RETURNED INCOME, THE N ET ADDITION IS WORKED OUT AT RS.1,15,892/-; WHEREAS AS PER THE PEAK THEOR Y OF INVESTMENT, THE MAXIMUM BALANCE WAS AT RS.2,05,643/-. THE APPELLAN T HAD NOT ESTABLISHED THAT ALL THE CASH DEPOSITED IN THE BANK ACCOUNT CAME FROM THE SALE PROCEEDS OF THE ASSESSEE. IN THE ABSENCE OF C OMPLETE BOOKS OF ACCOUNTS, WE ESTIMATE THE ASSESSEES INCOME FOR THE YEAR UNDER CONSIDERATION AT RS.2.05 LACS ON THE BASIS OF PEAK PLUS INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN. WHEN ASSE SSEES INCOME HAS BEEN ESTIMATED ON THE BASIS OF FACTS, NO OTHER ADDITION REMAINED TO BE JUSTIFIED AS HELD BY THE VARIOUS COURTS ON THIS ISSUE. ACCOR DINGLY, GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 6. GROUND NOS.5 & 6 ARE GENERAL IN NATURE REQUIRE N O INDEPENDENT ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( ) ( .. ) '# ( KUL BHARAT ) ( T.R. MEENA ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED 30/05/2014 ..&, .&../ T.C. NAIR, SR. PS ITA NO.116/AHD/ 2011 SHRI NARPATSINGH A.RATHOD VS. ITO ASST.YEAR 2007-08 - 9 - '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7(/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-IV, SURAT 5. 7: -& , , / DR, ITAT, AHMEDABAD 6. :;' <1 / GUARD FILE. '4& '4& '4& '4& / BY ORDER, .7 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..29.5.14(DICTATION-PAD 17-PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29.5.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.30/5/2014 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/5/2014 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER