THE ACIT, 3(1), Indore V. Shri Vimal Khurana, Indore

ITA 1312/IND/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5845 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-11-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 18-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: KUSHAGRA JAIN
• Keywords: Rejection of books of accounts; Business income; Assessment record
• Section: 40A(3); 143(3); 142(1); 143(2); 145

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.1312/IND/2016 ASSESSMENT YEAR: 2012-13 ACIT 3 (1) , INDORE / VS. SHRI VIMAL KHURANA PROP. M/S. ROYAL ENTERPRISES 77, SECTOR-E, SANWER ROAD, INDORE ( REVENUE ) ( RE SPONDENT ) PAN: AJBPK6093K REVENUE BY SHRI ASHIMA GUPTA, CIT - DR RESPONDENT BY SHRI KUSHAGRA J AIN , CA DATE OF HEARING: 27.11.2018 DATE OF PRONOUNCEMENT: 13.12.2018 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL OF REVENUE PERTAINING TO A.Y. 2012-13 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INC OME TAX(APPEALS)-I, INDORE, (IN SHORT CIT(A)), DATED 18 .08.2016 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED ON VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 2 27.03.2015 BY ACIT, 3(1) INDORE. THE REVENUE HAS RAIS ED FOLLOWING GROUNDS OF APPEAL: I. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A) ERRED IN LAW BY ALLOWING TH E APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FINDING OF THE AO. II. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LD. CIT(A) ERRED IN DELETING THE ADDIT ION OF RS.3,95,09,726/- ON ESTIMATION OF PROFIT AFTER INVOKING PROVISO TO SECTION 145(3) OF THE I.T. ACT, PARTICULARLY IN VIEW OF DECISION OF APEX COURT IN T HE CASE OF SHRI S.N. NAMASIVYAM CHETTAIR VS. CIT(HON'BLE SUPREME COURT) 38 ITR 579. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL RUNNING SOLE PROPRIETORSHIP CONCERN M/S. ROYAL ENTERPRISES ENGAG ED IN THE TRADING OF IRON & STEEL. INCOME OF RS.29,77,200/ - DECLARED IN THE E-RETURN OF INCOME FILED FOR A.Y. 20 12-13 ON 30.07.2012. CASE SELECTED FOR SCRUTINY THROUGH CASS. NOTICES U/S 143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WERE DULY SERVED UPON THE ASSESSEE. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING OFFICER (IN SHORT LD. AO) WHILE GOING T HROUGH THE TAX AUDIT REPORT PREPARED U/S 44AB OF THE ACT NOT ICED THAT THE AUDITOR HAS GIVEN REMARK IN PARA 28(A) OF THE FORM 3CD MENTIONING THAT THE QUANTITATIVE DETAILS HAVE VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 3 NOT BEEN PRODUCED FOR VERIFICATION. THIS REMARK PROMP TED THE ASSESSING OFFICER TO ASK THE ASSESSEE TO FURNISH QUANTITATIVE DETAILS OF SCRAP. IN RESPONSE THERETO QUANTI TY WISE SUMMARY OF SCRAP FOR THE COMPLETE YEAR WAS SUBMITTED. REPLY FURNISHED BY THE ASSESSEE WAS FOUND DEVOID OF MERITS AND ALSO CRYPTIC BY THE LD. ASSESSIN G OFFICER AND HE ALSO OBSERVED THAT IN THE BRANCH SHOWN I N PUNJAB NO MAJOR EXPENSES HAVE BEEN INCURRED. LD. AO ALSO ALLEGED THAT PROPER SALE BILLS AND VOUCHERS WOULD N OT PRODUCE. BASED ON THESE OBSERVATIONS. LD. AO INVOKED THE PROVISIONS OF SECTION 145(3) OF THE ACT AND REJECTED THE BOOKS OF RESULTS AND ESTIMATED THE PROFIT @ 8% OF TH E TOTAL TURNOVER THEREBY MAKING AN ADDITION OF RS.3,95,09,726/- WITHOUT ALLOWING THE SET OFF OF THE INCOME DECLARED BY THE ASSESSEE IN THE INCOME TAX RET URN AND ASSESSED INCOME AT RS.4,24,86,926/-. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE LD . CIT(A) AND SUCCEEDED AS LD. CIT(A) APPRECIATED THE FACT THAT THOUGH GROSS PROFIT RATE DISCLOSED BY THE ASSESSE E FOR THE YEAR UNDER APPEAL AT 3.32% IS LESS THAN 3.52% SHOWN IN THE IMMEDIATELY PRECEDING YEAR AND SIMILARLY NET PR OFIT RATE OF 0.62% IS LESS THAN 0.86% OF THE PRECEDING YEAR BUT THIS DECREASE IS NORMAL ON ACCOUNT OF SIGNIFICANT INCRE ASE VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 4 IN THE TURNOVER WHICH HAS RISEN TO RS. 49.39 CRORES (APPROX.) DURING F.Y. 2011-12 AS AGAINST RS. 27.11 CR ORES IN THE IMMEDIATELY PRECEDING FINANCIAL YEAR. 5. AGGRIEVED REVENUE IS NOW IN APPEAL BEFORE THE TRIB UNAL RAISING SOLE ISSUE OF DELETION OF ADDITION OF RS.3,95,09,726/- BY LD. CIT(A) AND HAS ALSO CHALLENGED THE FINDING OF LD. CIT(A) THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REJECTING THE BOOK RESULTS U/S 145(3) OF THE ACT. 6. LD. DR VEHEMENTLY ARGUED SUPPORTING THE ORDER OF LD. ASSESSING OFFICER BUT FAILED TO CONTROVERT THE DETAILE D FINDING OF FACT OF THE LD. CIT(A). 7. PER CONTRA LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE FINDING OF LD. CIT(A) AND ALSO MADE FOLLOWING WRITTE N SUBMISSIONS: AGAINST REJECTION OF BOOKS OF ACCOUNTS INVOKING SECTION 145(3) OF THE ACT :- 1. THE LD AO HAS ERRED IN REJECTING THE BOOKS OF THE A PPELLANT AND PRESUMED THE PROFIT @ 8%. HE DID NOT ENTERTAIN THE FACT THAT THE BOOKS OF ACCOUNTS OF THE APPELLANT WERE DULY AUDITE D BY AN INDEPENDENT CHARTERED ACCOUNTANT. AUDIT REPORT (PAG E NO 4 TO 25). APPELLANT WAS HAVING HEAD OFFICE IN INDORE AND A BR ANCH AT PUNJAB FOR WHICH INDIVIDUAL FINANCIAL STATEMENTS AN D EVEN CONSOLIDATED FINANCIAL STATEMENTS FOR PART OF AUDIT REPORT. (PLEASE REFER PAGE NO 15 TO 25). FURTHER, NO DEFECT HAS BEE N POINTED OUT IN AUDIT REPORT. 2. FURTHER, THE APPELLANT HAD PRODUCED EVEN ALL SALES & PURCHASE BILLS, VOUCHERS ETC WHICH WERE DULY CHECKED BY THE LD AO. NO VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 5 SPECIFIC DEFECT HAS BEEN POINTED OUT IN SALES, PURC HASES, VOUCHERS. FOR YOUR HONOUR'S REFERENCE FEW PURCHASE AND SALE B ILLS ARE ENCLOSED HEREWITH FOR YOUR KIND PERUSAL. (PAGE NO 2 6 TO 62). YOUR HONOUR WOULD APPRECIATE THE FACT AFTER SEEING THE P URCHASE AND SALES BILLS THAT THESE ARE EXCISABLE INVOICES AND T HUS, THERE IS NO SCOPE OF ERROR IN SUCH INVOICES. 3. OUT OF TOTAL SALES OF RS. 49.90 CR IN AY 2012-13, A PPROXIMATELY RS. 7.60 CR SALES HAVE BEEN ON HIGH SEA BASIS I.E. IMPORTED AND SOLD WHILE THE GOODS ARE IN TRANSIT (PAGE NO 63 TO 115). FURTHER, ALL THE SALES ARE TO REGISTERED ROLLING MI LLS AND INDUSTRIES AND HENCE, THE NON RELIABILITY ON THE PU RCHASE AND SALES CANNOT BE A QUESTION AS RAISED BY AO. SUCH PU RCHASES AND SALES HAPPEN THROUGH BILL OF ENTRY AND CUSTOM I S PAID. THESE DEPARTMENTS ENSURE COMPLETENESS OF EACH AND E VERY TRANSACTION. 4. THE AO WHILE REJECTING THE BOOKS OF ACCOUNTS HAD CI TED ONE REASON THAT THE STOCK REGISTER IS NOT MAINTAINED EV EN AFTER PRODUCING THE EXCISE REGISTER RG 23 (ATTACHED AT PA GE NO 116 TO 198 OF PAPER BOOK) BEFORE HIM. THE LD AO HAD POINTE D THAT THE AUDITOR HAVE COMMENTED IN AUDIT REPORT THAT THE 'QU ANTITATIVE DETAILS HAVE NOT BEEN PRODUCED FOR VERIFICATION.' IN THIS RESPECT, THE APPELLANT MOST HUMBLY SUBMITS THAT AT THE TIME OF AUDIT, THE QUANTITATIVE RECORDS MAINTAINED IN RG - 23 STOCK REGISTER WERE TAKEN BY EXCISE AUTHORITIES AND HENCE THE AUDITORS WERE NOT PROVIDED WITH THE QUANTITATIVE DE TAILS. HOWEVER, THE LD AO STILL WENT AHEAD REJECTING BOOKS OF ACCOUNTS EVEN WHEN QUANTITATIVE DETAILS WERE MAINTA INED AND FURNISHED. 5. FURTHER, THE APPELLANT HAS FOLLOWED REGULAR MERC ANTILE BASIS OF ACCOUNTING. 6. THUS, THE APPELLANT, THEREFORE PLEADS THAT THE BOOK S OF CCOUNTS BE ACCEPTED AS SUCH AND HENCE, ADDITIONS MADE BE DE LETED. INCORRECT OBSERVATION RELATING TO BRANCH SALES AND PROFITS AND LEADING TO REJECTION OF BOOKS OF ACCOUNTS 1. THE LD AO HAS ERRED IN OBSERVING THAT THAT THE SALE S OF RS. 20,50,1571- FROM THE BRANCH OF THE APPELLANT LOCATED AT AMLOH ROAD, PUNJAB DID NOT HAD ANY EXPENSES AGAINST SUCH SALES. VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 6 2. IN THIS RESPECT, THE APPELLANT MOST HUMBLY SUBMITS THAT THE LD AO DID NOT WENT PROPERLY THROUGH THE BOOKS OF ACCOU NTS AND NOT EVEN THE AUDIT REPORT WHEREIN TRADING, PROFIT AND L OSS ACCOUNT OF BRANCH IS ALSO FORMING PART. (PLEASE SEE PAGE NO 20 OF PAPER BOOK). BY LOOKING AT THE TRADING AND P&L ACCOUNT, Y OUR HONOUR WOULD APPRECIATE THAT EVEN A SINGLE LOOK AT THE TRA DING AND P&L ACCOUNT WOULD REVEAL THAT THERE ARE EXPENSES AGAINS T SUCH SALES RESULTING IN GROSS PROFIT OF RS.L,32,647/- & NET PROFIT OF RS.45,994/-. 3. THUS, IT SEEMS THAT THE LD AO DID NOT GO THROUGH TH E WHOLE AUDIT REPORT AND OTHER DOCUMENTS AND HAS ARRIVED CO NCLUSION WITHOUT PROPER ANALYSIS. AND THROUGH THIS, THE QUES TION IS ALSO RAISED THAT 'HOW CAN THE LD AO COMMENT ON THE INCOM PLETENESS & INACCURACY OF BOOKS OF ACCOUNTS?', IF HE HAS NOT GONE THROUGH AUDIT REPORT THOROUGHLY. 4. THUS, THE APPELLANT, THEREFORE PLEADS THAT THE BOOK S OF ACCOUNTS BE ACCEPTED AS SUCH AND HENCE, ADDITIONS MADE BE DE LETED AND ORDER BE HELD AS VOID. THUS, IN BRIEF THE LD AO REJECTED THE BOOKS OF THE APPELLANT ON THE FOLLOWING INCORRECT OBSERVATIONS TO WHICH THE DOCUM ENTS WERE FURNISHED BEFORE AO S. NO.1 PARA OF INCOMES DOCUMENTS SUBMITTED PAGE NO ORDER OBSERVATIONS BY LD OF PAPER AO BOOK 1. PARA 2, 2.2, 2.3 OF QUANTITATIVE DETAILS RG - 23 EXCISE REGISTE R IS PAGE NO THE LD AO ORDER ARE NOT MAINTAINED MAINTAINED 116TO 198 2. PARA 2.1, PAGE 3 OF BRANCH HAD SALES OF AUDIT REPORT HAS BRANCH TRAING PAGE NO 4 ORDER RS. 20,50,157/ - AN D PROFIT LOSS ACCOUNT TO 25 WITHOUT ANY SHOWING NET PROFIT AT RS . EXPENSE S 45,994/-, THUS THERE AR E EXPENSES OF RS. 20,04,163/- . 3. PARA 2.1, PAGE 3 OF EXPENSE S EXCEEDING NO SUCH INSTANC E HAS BEEN ORDER RS. 20,000 HAS BEEN BROUGHT OUT BY AO SINCE THERE MADE VIOLATING SEC ARE NO EXPENSES IN VIOLATION OF 40A(3). SEC 40A(3) OF THE ACT. IT IS JUST A ASSUMED STATEMENT BY AO. 4. PARA 2.2, PAGE 3 OF NO PROPER SALES BILL, SALES BILLS , PURCHASE BILLS PAGE NO ORDER PURCHASE BILLS, PRODUCED 26TOL15 VOUCHERS WERE PRODUCED VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 7 HENCE, ALL THE ABOVE OBSERVATIONS BY LD AO WERE INC ORRECT WHICH LED HIM TO CONCLUDE THAT THE BOOKS OF ACCOUNT S ARE NOT RELIABLE WHEREAS THE CASE WAS NOT SO. IT SEEMS THE AO DID NOT PERUSE THE BOOKS PROPERLY AND ISSUED ORDER AGAINST THE APPELLANT IN A HURRIED MANNER THUS, THE APPELLANT THEREFORE PLEADS THAT THE BOOKS OJ ACCOUNTS BE ACCEPTED AS SUCH AND HENCE, ADDITIONS M ADE BE DELETED AND ORDER BE HELD AS VOID. CASE LAWS RELIED BY LD AO ARE DIFFERENT FROM THE CA SE OF APPELLANT AND ARE DISTINGUISHABLE THE LD AO HAS RELIED ON THE CASE OF 'S.N. NAMASIVYA M CHETTAIR VAS. CIT (SC) 38 ITR 579' (PAGE NO 199 TO 205) WHER EIN A. A TRADER SHOWED DRASTICALLY LOW PROFIT (3.5%) AS COMPARED TO PREVIOUS YEARS (9%) WITHOUT HAVE ANY MANUFACTURING & TRADING ACCOUNT. B. NO VOUCHERS WERE MAINTAINED EVEN FOR THE PURCHAS ES ABOVE RS. 3 LAKHS C. SEVERAL OUTSIDER CHEQUES HAVE BEEN ENTERED WITHO UT ANY PROOF AS TO WHY THOSE CHEQUES WERE PAID TO ASSESSEE . D. NO QUANTITATIVE DETAILS WERE MAINTAINED. 2. THE LD AO ALSO RELIED ON CASE OF AMIYA KUMAR ROY AND SONS VS. CIT (CAL) (206 ITR 306) (PAGE NO 206 TO 11 0) WHEREIN A. NO STOCK REGISTER WAS KEPT BY ASSESSEE B. IT WAS MORE OF A CASE WHERE QUESTION AROSE WAS O N SIGHTING COMPARABLE CASE BEFORE REJECTING THE TRADING RESULT S. 3. THE ABOVE CASES ARE NOT AT ALL APPLICABLE TO THE PRESENT CASE SINCE A. APPELLANT HAS MAINTAINED PROPER BOOKS OF ACCOUNTS T HAT TOO AUDITED BY INDEPENDENT CHARTERED ACCOUNTANT. B. STOCK REGISTER WERE MAINTAINED IN RG - 23 EXCISE RE CORDS. C. ALL PURCHASE AND SALES BILL WERE THERE. D. NET PROFIT RATIO OF 0.62% (0.82% IN AY 2011-12) IS ALSO AS PER THE PAST TRENDS AND IS JUSTIFIED IN SCRAP LINE OF BUSINESS, SINCE THIS IS NOT A MARGIN BUSINESS BUT A VOLUME BU SINESS. THE APPELLANT TURNOVER WAS RS. 49.38 CR. E. FURTHER, IN CASE OF ASHOK REFRACTORIES (P) LTD. VS. VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 8 COMMISSIONER OF INCOME TAX HIGH COURT OF CALCUTTA ( 199 CTR 115) (PAGENO 211 TO 221), IT HAS BEEN HELD THAT IN ORDER TO REJECT BOOKS OF ACCOUNTS, MERELY ABSENCE OF STOC K REGISTER IS NOT ENOUGH, THE AO SHOULD DEDUCE THAT ACCOUNTS MAINTAINED WERE NOT CORRECT AND HENCE, NO INCOME IS ABLE TO BE COMPUTED. F. THUS, BOOKS SHOULD BE SUCH THAT INCOME CAN BE CO MPUTED, WHICH IS PRESENT IN APPELLANTS CASE AND MOREOVER ST OCK REGISTER IS ALSO MAINTAINED AND THUS, THE BOOKS OF ACCOUNTS BE ACCEPTED AS SUCH AND ADDITION MADE BE DELETED. SAME BOOKS HAVE BEEN ACCEPTED BY SALES TAX! VAT AND EXCISE AUTHORITIES 1. THE SAME BOOKS OF ACCOUNTS, SALES & PURCHASE BILLS AND OTHER ACCOUNTS HAVE BEEN PRESENTED TO OTHER DEPARTM ENTS, SUCH AS COMMERCIAL TAX DEPT., EXCISE DEPARTMENT WHICH HA VE PRACTICALLY ACCEPTED THE SAME AND DID NOT FIND ANY CRITICAL DISCREPANCIES WHICH WOULD LEAD TO REJECTION OF BOOK S OF ACCOUNTS. 2. THE APPELLANT, THEREFORE PLEADS THAT THE ADDITI ONS MADE BE RESCINDED. NO COMPARABLE CASE CITED BY LD AO AND IN NEXT AY, S AME AO HAS ACCEPTED BOOKS OF ACCOUNTS ON SIMILAR FACTS. THE LD AO HAS ERRED IN CITING ANY COMPARABLE CASE W HEREIN A IRON AND STEEL SCRAP TRADER HAVING A COMPARABLE TUR NOVER OF RS. 50 CR HAS EARNED NET PROFIT @ 8%., WHICH HE OUGHT TO HAVE CITED IN THE LIGHT OF JUDGEMENT IN CASE OF ASHOK KUMAR AG ARWAL VS. ITO (98 TI] 663). 2. FURTHER, IN THE APPELLANT'S CASE ONLY FOR THE NE XT AY 2013-14, THE SAME ASSESSING OFFICER HAS ASSESSED FOR THE AY 2014-15 OF THE SAME ASSESSEE, WHEREIN THE BOOKS OF ACCOUNTS HA VE BEEN DULY ACCEPTED BY HIM (NATURE OF BUSINESS AND MAINTE NANCE OF BOOKS HAVE BEEN SIMILAR TO A Y 2012-13). COPY OF SU CH ASSESSMENT ORDER IS ENCLOSED HEREWITH FOR YOUR KIND PERUSAL AT PAGE NO 222 TO 229). AGAIN IN SUCH ASSESSMENT ORDER , NO DEFECT HAS BEEN FOUND IN THE BOOKS OF ACCOUNT BUT JUST AN ADHOC DISALLOWANCE HAS BEEN DONE ASSUMING INVOLVEMENT OF PERSONAL EXPENDITURE. 3. THUS, ON THE BASIS OF ABOVE, IT SEEMS THAT INCOR RECT OBSERVATION AS POINTED OUT EARLIER HAS MADE LD AO T O REACH TO THE POINT THAT BOOKS OF ACCOUNTS FOR A Y 2012-13 AR E NOT RELIABLE VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 9 WHEREAS THE CASE IS NOT SO. THUS, ON THE BASIS OF ABOVE FACTS AND THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE APPELLANT HAS MAINTAINED PROPE R BOOKS OF ACCOUNTS WHICH ARE AUDITED AND INCORRECT OBSERVATIO NS OF THE LD AO HAS LED TO WRONGLY REJECTION OF THE BOOKS OF ACC OUNTS. EVEN THE QUANTITATIVE DETAILS ARE MAINTAINED IN RG -23 E XCISE REGISTER, PURCHASE BILLS AND SALE BILLS ALONG WITH VOUCHERS ARE MAINTAINED AND ON SIMILAR FACTS, THE SAME AO HAS AC CEPTED THE BOOKS IN NEXT YEAR AND HENCE, THE BOOKS OF ACCOUNTS FOR A Y 2012-13 BE ACCEPTED AS SUCH AND THE ADDITIONS MADE BE DELETED. 8. LD. COUNSEL FOR THE ASSESSEE ALSO MADE FOLLOWING WRITTEN SUBMISSIONS IN COMPLIANCE TO THE DETAILS OF VARIOUS FACTS ASKED BY US ON THE LAST DATE OF HEARING. CLARIFICATION ON QUANTITATIVE DETAILS FOR OTHER THAN EXCISABLE GOODS :- THE APPELLANT DEALS IN TWO TYPES OF GOODS, ONE IS E XCISABLE AND OTHER IS NON EXCISABLE. QUANTITATIVE DETAILS OF EXC ISABLE GOODS ARE MAINTAINED IN RG - 23 REGISTER, WHICH WAS ALREA DY SUBMITTED IN PAPER BOOK I AND FOR NON EXCISABLE GOO DS, STOCK SUMMARY IS MAINTAINED IN ANOTHER STOCK REGISTER, WH ICH IS PRODUCED BEFORE YOUR HONOUR FOR VERIFICATION. 2. QUANTITATIVE DETAILS OF CLOSING STOCK THE QUANTITATIVE DETAILS OF THE CLOSING STOCK ARE A TTACHED AT PAGE DO. 230 OF THE PAPER BOOK- II. 3. CLARIFICATION REGARDING BRANCH:- THE APPELLANT IS HAVING A BRANCH SITUATED IN A RURA L AREA AT AMLOH VILLAGE, MANDI GOBINDGARH, PUNJAB (ALSO REFER RED AS STEEL TOWN OR SIMPLY 'LOHA MANDI'), BECAUSE OF A LARGE NU MBER OF STEEL MILLS AND FACTORIES THERE. IN THE CAPTIONED ASSESSMENT YEAR, YOUR HONOUR WOULD APPRECIATE THAT THE BUSINESS WAS LESS AND HENCE IT OPERATED ITS BUSINESS THROUGH A SMALL OFFICE AND STORAGE AREA (T AKEN AS PER THE REQUIREMENTS OF STORAGE), FOR WHICH THE APPELLA NT PAYS RENT. DURING THE YEAR, ONLY 4 SALES TRANSACTIONS HAPPENED THROUGH WHICH SALE OF RS. 20,50,157.35 OCCURRED. (LEDGER OF SALES ATTACHED AT PAGE NO 231 OF PAPER BOOK II). FURTHER, SINCE BUSINESS WAS LESS AND APPELLANT WAS THINKING TO CLOSE THE BRANCH, RENT AMOUNT PAID INCLUDED ELECTRI CITY EXPENSES IN CAPTIONED ASSESSMENT YEAR. VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 10 4. OPENING STOCK OF RS. 7,77,000/- AT BRANCH - . THE OPENING STOCK AT BRANCH CONSISTS OF THE GOODS W HICH ARE IMPORTED FROM OUTSIDE INDIA ONLY. HENCE, THE IRON A ND STEEL (IMPORTED) WHOSE COST WAS RS.19,17,510.25/ (RS.7,77,000 + RS.11,40,510.25/-) IS SOLD FOR RS. 20,50,157.35. 5. VOUCHERS RELATED TO IMPORT EXPENSES ARE PRODUCED HEREWITH FOR YOUR HONOUR'S PERUSAL. 6. COMPARATIVE CHART OF GP AND NP RATIO ALONG WITH TUR NOVER THE COMPARATIVE CHART FOR THE LAST TWO FY I.E. 2009 -10 AND 2010-11 AND NEXT ONE FY I.E. 12-13 IS ATTACHED AT P AGE NO. 232 OF PAPER BOOK-II. 7. COMPARATIVE CHART OF TRADING ACCOUNT THE COMPARATIVE CHART OF TRADING ACCOUNT FOR THE LA ST TWO FY I.E. 2009-10 AND 2010-11 AND NEXT ONE FY I.E. 12-13 IS ATTACHED AS A PART OF PAPER BOOK-II AT PAGE NO. 233 ) 8. THE EXCISE DEPARTMENT TOOK THE RECORDS ON 15/11/2011 AND AFTER CHECKING THE RECORDS, SINCE THEY COULDN'T FIN D ANY ERROR, THEY RELEASED THE RECORDS LATER AND DID NOT ISSUE A NY EXCISE ORDER OTHER THAN PUNCHNAMA, WHICH IS ATTACHED AT PA GE NO. 234 TO 241 OF PB - II. WE TRUST THAT THE ABOVE INFORMATION SUFFICE YOUR RE QUIREMENTS AND TO YOUR SATISFACTION THAT THE BOOKS OF ACCOUNTS OF THE APPELLANT ARE COMPLETE AND REGULAR. THUS, IN VIEW O F THE ABOVE SUBMISSIONS AND EARLIER SUBMITTED ON 09108/2016, THE APPELLANT MOST HUMBLY REQUESTS YOUR HONOUR TO DELET E THE ADHOC ADDITION MADE BY REJECTING THE BOOKS OF ACCOU NTS ON INCORRECT OBSERVATIONS. 9. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE RECO RD PLACED BEFORE US. REVENUES SOLE GRIEVANCE IS LIMITED TO DELETION OF ADDITION OF RS.3,95,09,726/- BY LD. CIT (A) WHICH THE ASSESSING OFFICER MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY ESTIMATING PROFIT AFTER INVO KING THE PROVISIONS OF SECTION 145(3) OF THE ACT. THE IN STIGATION AT END OF THE LD. ASSESSING OFFICER FOR INVOKING PRO VISION OF SECTION 145(3) OF THE ACT AND REJECTING THE BOOK RES ULTS WAS MERELY ON THREE COUNTS; FIRSTLY, HE WAS NOT SATISFIED WITH THE QUANTITY WISE SUMMARY FOR THE COMPLETE YEAR, SECON DLY, VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 11 LIMITED EXPENSES WERE SHOWN FOR RUNNING BRANCH LOCAT ED AT AMLOH ROAD, PUNJAB AND THIRDLY, SINGLE INSTANCE OF AN EXPENDITURE INCURRED IN CASH IN VIOLATION OF PROVISIO NS OF SECTION 40A(3) OF THE ACT. APART FROM THESE THREE OBSERVATIONS NO OTHER ANOMALY OBSERVED BY THE ASSESSIN G OFFICER QUA THE AUDITED FINANCIAL STATEMENTS FURNISHED BY THE ASSESSEE WHO HAS ACHIEVED TURNOVER OF RS.49,38,71,585/- DURING THE YEAR. THE PREMISES OF T HE ASSESSEE ARE COVERED UNDER THE EXCISE ACT AND ALL NECESSARY DOCUMENTS FOR THE PURPOSE OF CENTRAL EXCISE DEPARTMENT HAVE BEEN REGULARLY MAINTAINED BY THE ASSESSEE WHICH INTER ALIA INCLUDES QUANTITATIVE DETAILS AND THE QUANTITATIVE RECORDS IN THE STOCK REGISTER PREPARED UNDER THE EXCISE ACT IN RG 23 REGISTERS. COPIES OF RG 23 REGISTERS HAVE BEEN FURNISHED IN THE PAPER BOOK PAGES 134 TO 215. 10. WE FIND THAT THE LD. CIT(A) HAVE GIVEN DETAILED FINDI NG OF FACT FOR DELETING THE ADDITION OF RS.3,95,09,726/- OB SERVING AS FOLLOWS: 5. GROUND NOS. I TO VIII: ALL THE ABOVE GROUNDS OF THE APPELLANT ARE IN EFFECT DIRECTED AGAINST THE ADDITI ON OF RS.3,95,09,726/- MADE TO THE TOTAL INCOME OF THE APPELLANT BY INVOKING THE PROVISIONS OF SECTION 145 (3) OF THE ACT AND ESTIMATING THE PROFITS AT THE RATE OF 8 % ON THE TOTAL TURNOVER SHOWN BY THE APPELLANT. THE DETA ILED VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 12 FACTS OF THE CASE AS PER THE ASSESSMENT ORDER ARE REPRODUCED AT PARA NO.2 ABOVE AND THE DETAILED SUBMISSIONS OF THE APPELLANT ARE REPRODUCED AT PARA NO.3 ABOVE. 5.1 BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE APPELLANT IS A TRADER OF IRON & STEEL SCRAP ON WHOLESALE BASIS UNDER THE NAME 'ROYAL ENTERPRISES'. THE APPEL LANT PURCHASES IRON AND STEEL FROM INSIDE INDIA AS WELL AS FROM OUTSIDE INDIA. FURTHER, THESE GOODS ARE GENERA LLY SOLD IN INDIA TO VARIOUS ROLLING MILLS EXCEPT FEW TRANSACTIONS WHERE SALES ARE 'HIGH SEAS SALES' AND SALES IS MADE WHILE THE GOODS ARE IN TRANSIT TO INDIA. TH E APPELLANT IS HAVING A BRANCH SITUATED AT AMLOH VILL AGE, MANDI GOBINDGARH, PUNJAB. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT IN THE AU DIT REPORT THE AUDITOR IN COLUMN 28(A) REMARKED THAT QUANTITATIVE DETAILS NOT PRODUCED FOR VERIFICATION. THE AO THEREFORE ASKED THE APPELLANT TO FURNISH QUANTITATI VE DETAILS. IN RESPONSE TO THIS THE APPELLANT REPLIED THAT QUANTITY WISE SUMMERY OF SCRAP FOR THE WHOLE YEAR I S SUBMITTED. THIS REPLY OF THE APPELLANT WAS FOUND TO BE CRYPTIC BY THE AO. THE AO ALSO NOTED THAT ON TOTAL TURNOVER OF RS.49.38 CRORES THE NET PROFIT WAS ONLY .62% AND THAT NO EXPENSES WERE SHOWN AT BRANCH THOUGH SALES WERE RS.20.50 LACS, REFERENCE WAS ALSO MADE B Y THE AO THAT EXPENSES EXCEEDING RS.20,OOO/- WERE MAD E IN CONTRAVENTION OF THE PROVISIONS OF SECTION 40A(3 ) OF THE ACT. AO ALSO REMARKED THAT THE APPELLANT FAILED TO PRODUCE SALE BILLS AND VOUCHERS OF EXPENSES CLAIMED AND ALSO THE STOCK RECORD MAINTAINED. AO THEREFORE INVO KED THE PROVISIONS OF SECTION 145(3) OF THE ACT, AND ESTIMATED THE PROFIT BY APPLYING 8% ON TOTAL TURNOV ER. 5.2 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT POINTED OUT THAT PROPER BOOKS OF ACCOUNTS WERE MAINTAINED WHICH WERE DULY AUDITED AND ALL SALE/PURCHASE BILL/VOUCHERS WERE PRODUCED BEFORE TH E AO AND NO SPECIFIC DEFECT HAS BEEN POINTED OUT, AS REG ARDS QUANTITY DETAILS IT WAS CONTENDED THAT QUANTITY DET AILS VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 13 WERE PRODUCED BEFORE THE AO. APPELLANT ALSO EXPLAIN ED THAT IT DEALS IN TWO TYPES OF GOODS ONE EXCISABLE A ND THE OTHER NON EXCISABLE. IN RESPECT OF EXCISABLE GOODS QUANTITY DETAILS WERE MAINTAINED IN RG-23 REGISTER AND FOR NON EXCISABLE GOODS SEPARATE STOCK REGISTER WAS MAINTAINED AND DURING ASSESSMENT PROCEEDINGS BOTH WERE PRODUCED BEFORE THE AO. APPELLANT ALSO EXPLAIN ED THAT THE BRANCH OFFICE WAS VERY SMALL TAKEN ON RENT WHICH RENT IS DEBITED IN ACCOUNTS AND THERE WERE ONLY FOU R SALE TRANSACTIONS. SEPARATE ACCOUNTS OF THE BRANCH WERE KEPT AND THESE SHOW THAT ADEQUATE EXPENSES HAVE BEEN DEBITED THERE WAS THEREFORE NO BASIS FOR DRAWING AN ADVERSE INFERENCE ON ACCOUNT OF THE SAME. THE GIST OF THE APPELLANT'S SUBMISSIONS WAS THUS THAT THERE WAS NO MATERIAL ON RECORD TO INVOKE PROVISIONS OF SECTION 145(3) OF THE ACT. 5.3 FROM THE RECORD, IT IS SEEN THAT DUE COMPLIANCE WAS MADE BY THE APPELLANT DURING THE COURSE OF ASSESSME NT PROCEEDINGS AND QUANTITATIVE DETAILS OF STOCK WERE FILED WHICH ARE DETAILED AND ARE FOUND PLACED IN THE ASSESSMENT RECORD. THESE WERE ALSO PRODUCED DURING THE COURSE OF APPELLATE PROCEEDINGS. THE CONTENTION OF THE AO THEREFORE THAT QUANTITATIVE DETAILS OF SCRAP WERE N OT PRODUCED IS NOT FOUND TO BE JUSTIFIED. IT WAS FURTH ER EXPLAINED BY THE APPELLANT THAT AT THE TIME OF AUDI T THE QUANTITY RECORDS PERTAINING TO EXCISABLE GOODS WERE NOT AVAILABLE BECAUSE A SURVEY WAS CARRIED OUT BY THE E XCISE DEPARTMENT AND THE RECORD WAS TAKEN BY THE EXCISE AUTHORITY AND HENCE COULD NOT BE PRODUCED BEFORE TH E AUDITORS. APPELLANT PRODUCED COPY OF THE PANCHNAMA DRAWN BY THE EXCISE AUTHORITY FOR THE ACTION CARRIE D OUT ON 15-11-2011 AND POINTED OUT THAT NO SIGNIFICANT DIFF ERENCE WERE FOUND IN THE STOCK. THESE FACTS THUS ESTABLISH THAT THE BASIS ADOPTED BY THE AO FOR REJECTION OF BOOKS OF ACCOUNTS WAS UN-SUBSTANTIATED ON FACTS. THE REJECTI ON OF BOOKS OF ACCOUNTS ON THE GROUND OF NON MAINTENANCE OF QUANTITATIVE DETAILS THEREFORE CANNOT BE SUSTAINED. 5.4 AS REGARDS, THE REFERENCE MADE BY THE AO OF CONTRAVENTION OF PROVISIONS OF SECTION 40A(3) OF TH E ACT, IT VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 14 IS SEEN FROM THE ASSESSMENT RECORDS THAT THE APPELL ANT HAD FILED LETTER BEFORE THE AO WHEREIN THE APPELLAN T HAD STATED AS UNDER:- 'IN RESPECT OF PAYMENTS MADE ABOVE RS,20,000/- IN CASH- ASSESSEE MOST HUMBLY SUBMITS THAT ASSESSEE HAS ACQUIRED FIXED ASSETS (COMPUTERS) DURING THE CAPTIONED ASSESSMENT YEAR AND FOR THIS PURPOSE THE ASSESSEE HAS MADE PAYMENT IN CASH. SECTION 40A(3) OF THE ACT COVERS ONLY THE EXPENSES AND NOT THE PAYMENT FOR FIXED ASSETS. HENCE, SECTION 40A(3) IS NOT APPLICABLE IN CASE OF THOSE PAYMENTS. IN RESPECT OF THE EXPENSES WHICH ARE COVERED U/ S 40A(3), THE ASSESSEE HAS PAID ALL SUCH EXPENSES THROUGH ACCOUNT PAYEE CHEQUES. ' 5.5 NO SPECIFIC EXPENSES HAVE BEEN POINTED OUT TO CONTRADICT WHAT WAS STATED BY THE APPELLANT. THE OT HER OBSERVATION OF THE AO THAT NO EXPENSES WERE DEBITED IN BRANCH FOR EARNING INCOME OF RS.20,50,157/- IS ALSO FOUND TO BE UN-SUBSTANTIATED AS RS.20,50,157/- WERE THE TOTAL SALE OF THE BRANCH ON WHICH NET PROFIT EA RNED WAS ONLY RS.45,994/- AND RENT, SALARY ETC. WERE DEB ITED BY THE APPELLANT. AO HAS ALSO OBSERVED THAT ON TOTA L TURNOVER THE PROFIT WAS ONLY 62%. THIS IN ITSELF CA NNOT BE A BASIS FOR REJECTION OF BOOKS OF ACCOUNTS. APPELLA NT WAS ASKED TO FILE COMPARATIVE CHART OF GROSS PROFIT AND NET PROFIT WHICH IS REPRODUCED BELOW. COMPARATIVE CHART OF GP AND NP SR. PARAMETERS F.Y.09-10 F.Y.10-11 F.Y. 11-12 F.Y. 12-13 NO. 1 TURNOVER 307001445. 271083823. 493871585. 799061599 2 GROSS PROFIT 9000756.94 955255L.35 16402598.5 14012895. 3 NET PROFIT 1587728.34 2325235.67 3Q76203.62 5005065.1 4 GP 2.93% 3.52% 3.32% ( 1.75%) PROFIT/TURNOVE 5 NP RATIO=NET 0.52% 0.86% 0.62% 0.63% PROFIT/TURNOVE 5.6 FROM THIS CHART IT IS SEEN THAT, AS COMPARED TO THE PRECEDING YEAR, THE GROSS PROFIT IS 3.32% AS AGAINST 3.52% OF LAST YEAR ON TOTAL TURNOVER OF 49.38 CRORES AS AGAINST TURNOV ER OF 27.10 VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 15 CRORES LAST YEAR AND THE NET PROFIT IS AT 0.62% AS AGAINST 0.86% OF LAST YEAR. THE MARGINAL FALL IN BOTH GROSS PROFIT AND NET PROFIT ARE A REFLECTION OF THE EFFECT OF TH E SIGNIFICANT INCREASE IN TURNOVER AND HENCE MERELY ON ACCOUNT OF SUCH MARGINAL FALL IN GROSS PROFIT/NET PROFIT IT CANNOT BE UPHELD THAT IT CONSTITUTES SUFFICIENT GROUND FOR RE JECTION OF BOOKS OF ACCOUNTS. IN VIEW OF THE ABOVE FACTS THE REJECTI ON OF BOOKS OF ACCOUNTS BY INVOKING THE PROVISIONS OF SECTION 145( 3) OF THE ACT, CANNOT BE SUSTAINED. FURTHER, AS THERE IS NO OTHER BASIS POINTED OUT BY THE AO FOR ESTIMATION OF PROFIT AT 8% THE SA ME ALSO CANNOT BE SUSTAINED. IN VIEW OF THE ABOVE THE ADDITION OF RS.3,95,09,727/- MADE BY ESTIMATING THE PROFIT AT 8 % IS THEREFORE DIRECTED TO BE DELETED. THESE GROUNDS OF THE APPELLANT ARE THEREFORE ALLOWED. 11. IT IS CLEARLY DISCERNABLE FROM THE RECORDS FILED IN THE PAPER BOOK THAT PROPER QUANTITATIVE DETAILS OF EXCISABLE AND NON-EXCISABLE GOODS HAVE BEEN MAINTAINED BY THE ASSESS EE IN THE STOCK REGISTERS. AS REGARDS THE EXPENDITURES FOR BRANCH AT AMLOH ROAD, PUNJAB ARE CONCERNED WE FIND THAT ONLY FOUR INVOICES WERE MADE FROM THE BRANCH TOTALLING TO RS.20,50,157/-. THIS BRANCH WAS CLOSED DURING THE YEAR AND REMAINED IN OPERATION FOR ONLY SIX MONTHS. THE EXPENSES CLAIMED DURING THE PERIOD AT RS.86,901/- IN OUR VIEW SEEMS TO BE SUFFICIENT AGAINST THE GROSS PROFIT OF RS.1,32,647/- EARNED FROM THE SALES MADE AT THE BRANCH AT RS.20,50,157/-. 12. WE ALSO FIND THAT THE ASSESSEE HAS SHOWN ALL THE RELEVANT PURCHASE AND SALE BILLS DURING THE COURSE OF VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 16 HEARING BEFORE BOTH THE LOWER AUTHORITIES. PROPER DET AILS OF SALES AND PURCHASES FOR THE TOTAL YEARS ARE PLACED ON RECORD. IN THESE GIVEN FACTS, WHERE THE ASSESSEE IS REGISTERED WITH THE EXCISE DEPARTMENT AND THERE IS NO FINDING AGAINST THE ASSESSEE BY THE EXCISE OR COMMERCI AL TAX DEPARTMENT AND ALL QUANTITATIVE DETAILS HAVE BEEN REGULARLY MAINTAINED, GROSS PROFIT AND NET PROFIT RATE A T 3.32% AND 0.62% SHOWN DURING THE YEAR HAVE NOT DECREASED MUCH TO THE GP RATE OF 3.52% AND 0.86% IN TH E IMMEDIATELY PRECEDING FINANCIAL YEAR IN THE GIVEN FACTS WHERE THERE IS A SIGNIFICANT INCREASE IN THE TURNOVER OF THE ASSESSEE WHICH HAS REACHED TO RS. 49.39 CRORES(APPROX. ) DURING THE YEAR FROM RS. 27.11 CRORES (APPROX.) FOR THE IMMEDIATELY PRECEDING FINANCIAL YEAR. THEREFORE, IN OUR CONSIDERED OPINION THE REJECTION OF BOOK RESULTS BY THE ASSESSEE AND INVOKING THE PROVISIONS OF SECTION 145(3 ) OF THE ACT AND ESTIMATING THE PROFITS OF THE ASSESSEE WAS NOT JUSTIFIED IN THE INSTANT CASE WHERE THE PROPER BOOK S AND QUANTITATIVE RECORDS HAVE BEEN MAINTAINED BY THE ASSESSEE . NO INTERFERENCE IS THEREFORE CALLED IN THE FINDING O F LD. CIT(A) DELETING THE ADDITION OF RS.3,95,05,726/-. WE ACCORDINGLY DISMISS REVENUES GROUND NO.2. VIMAL KHURANA PRO. M/S. ROYAL ENTERPRISES ITANO.1312/IND/2016 17 13. GROUND NO.1 OF THE REVENUES APPEAL IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 14. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13 .12.20 18. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 13/12/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR