ITO, WD-43(1), KOLKATA, Kolkata V. M/s Tirupati Commercial, Kolkata

ITA 1329/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1080 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 29-10-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Gross profit estimation; Rejection of books of accounts; Depreciation; Business expenditure
• Section: 133A; 133(6); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A NO. 1329/KOL/20 15 ASSESSMENT YEAR : 2011-1 2 ITO, WARD-43(1), KOLKATA -VS- M/S TIRU PATI COMMERCIAL [PAN: AADFT 4683 K] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SAURABH KUMAR, ADDL. CIT (DR) FOR THE RESPONDENT : SHRI SUBASH AGARWAL, ADV OCATE DATE OF HEARING : 17.10.2017 DATE OF PRONOUNCEMENT : 08.11.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE ARISES OUT OF THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-13, KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO.27/CIT(A)- 13/WD-43(1)/2014-15/KOL DATED 27.08.2015 AGAINST T HE ORDER PASSED BY THE ITO, WARD-42(1), KOLKATA [ IN SHORT THE LD AO] UNDER SEC TION 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 26.02.2014 FOR THE ASSESSMENT YEAR 2011-12. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 58,58,325 /- BEING THE ESTIMATED NET PROFIT DETERMINED @ 3.5% OF TURNOVER, IN THE FACTS AND CIR CUMSTANCES OF THE CASE. THE INTER- CONNECTED ISSUE THEREON IS AS TO WHETHER THE LD. CI T(A) WAS JUSTIFIED IN DELETING THE ADDITION TOWARDS CASH EMBEZZLEMENT LOSS OF RS. 5 CR ORES AND TRUCK INSURANCE CHARGES OF RS. 8,570/- IN THE FACTS AND CIRCUMSTANCES OF THE C ASE. 2 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 2 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS IN THE TRADING OF WASTE PAPER AND ALSO DER IVED INCOME FROM OTHER SOURCES. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011-12 WA S ELECTRONICALLY FILED BY THE ASSESSEE FIRM ON 28.09.2011 DECLARING TOTAL INCOME OF R.S 9,58,680/-. A SURVEY U/S 133A OF THE ACT WAS CARRIED OUT IN THE BUSINESS PRE MISES OF THE ASSESSEE ON 29.09.2010. ON THE DATE OF SURVEY, THE SURVEY TEAM IMPOUNDED TH E PROFIT AND LOSS ACCOUNT PREPARED UP TO THE DATE OF SURVEY AND FOUND THAT THE ASSESSE E HAD ACHIEVED A TURNOVER OF RS. 7,13,35,718/- AND NET PROFIT THEREON WAS CALCULATED AT RS. 48,50,700/- WHICH WAS 6.8% OF TURNOVER. 4. THE ASSESSEE HAD MAINTAINED REGULAR BOOKS OF ACC OUNT FOR THE WHOLE PERIOD I.E. 01.04.2010 TO 31.03.2011 AND THE SAME WERE DULY AUD ITED BY CHARTERED ACCOUNTANT AND HAD FILED THE RETURN OF INCOME DISCLOSING TAXABLE I NCOME OF RS. 9,58,680/-. IN THE SAID RETURN, THE NET PROFIT FROM BUSINESS DECLARED BY T HE ASSESSEE AGAINST TOTAL TURNOVER OF RS. 16,70,38,720/- WORKED OUT TO 0.57%. THE LD. AO OBSERVED THAT THE ASSESSEE HAD DECLARED NET PROFIT FOR THE FIRST HALF AT 6.80% I.E . UP TO THE DATE OF SURVEY (APPROXIMATELY) AND WHEREAS IT HAD DECLARED ONLY 0. 57% FOR THE WHOLE YEAR. ACCORDINGLY, HE SOUGHT TO SHOW CAUSE THE ASSESSEE A S TO WHY THE BOOKS OF ACCOUNTS AND THE BOOK RESULTS OF THE ASSESSEE BE NOT REJECTED U/ S 145(3) OF THE ACT. IN RESPONSE THERETO, THE ASSESSEE EXPLAINED BEFORE THE LD. AO T HAT THERE WERE LOT OF EXPENSES WHICH WERE NOT DEBITED IN THE PROFIT AND LOSS ACCOUNT PRE PARED UP TO THE DATE OF SURVEY AND THAT, SUCH EXPENSES COULD BE DEBITED ONLY AT THE E ND OF THE YEAR. IT WAS ALSO EXPLAINED THAT THERE WERE CERTAIN EXPENDITURES WHICH WERE INC URRED ONLY IN THE SECOND HALF OF THE FINANCIAL YEAR. BECAUSE OF THESE EXPENDITURES, THE NET PROFIT FOR THE WHOLE YEAR WAS REDUCED AND ADMITTEDLY ALL THESE EXPENDITURES ARE G ENUINE BUSINESS EXPENDITURE INCURRED BY THE ASSESSEE AND THE SAME HAVE BEEN DULY SUBJECT ED TO TAX AUDIT BY AN INDEPENDENT CHARTERED ACCOUNTANT. ACCORDINGLY, THE ASSESSEE OBJ ECTED TO THE REJECTION OF THE BOOKS 3 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 3 OF ACCOUNTS AND BOOK RESULTS U/S 145(3) OF THE ACT. THE REPLY OF THE ASSESSEE BEFORE THE LD. AO DATED 31.05.2013 AND 20.02.2014 ARE AS UNDER : FROM DATE: 31.05.2013 M/S TIRUPATI COMMERCIAL 98,B.K. PAUL AVENUE, KOLKATA-700005 TO, THE INCOME TAX OFFICER, WARD NO. 42(1) KOLKATA PAN: AADFT 4683 K RE: YOUR QUERIES IN SCRUTINY ASSESSMENT ASSESSMENT YEAR: 2011-12 DEAR SIR, WITH REGARD TO YOUR QUARRIES REGARDING DIFFERENCE I N CASH IN HAND FOUND AT THE TIME OF SURVEY OF RS. 1640/-, WE HAVE TO SAY THAT THE DIFFE RENCE WAS DUE TO SOME EXPENSES DEBITED IN BOOKS OF ACCOUNTS ON THE DATE OF SURVEY WERE PAID OUT OF THE PARTNERS POCKET BUT WERE NOT REIMBURSED TO THE PARTNER DUE TO BEING ENGAGED IN SURVEY OPERATION. THE DIFFERENCE IS OF VERY SMALL AMOUNT. REGARDING DIFFERENCE IN STOCK OF RS. 3,600/-, WE HA VE TO SAY THAT THE DIFFERENCE MAY BE DUE TO MEASUREMENT OR IN VALUATION AND IS OF VERY S MALL AMOUNT. REGARDING DIFFERENCE IN NET PROFIT AS SHOWN IN PROF IT AND LOSS ACCOUNT DATED 29.09.2010 RS. 4850700, AND THE NET PROFIT RS. 9586 75/- SHOWN IN AUDITED PROFIT AND LOSS ACCOUNT AS ON 31.03.2011, WE HAVE TO SAY THAT THE PROFIT AND LOSS ACCOUNT DRAWN AS ON 29.09.2010 WAS INCOMPLETE. MANY EXPENSES WHICH A RE PROVIDED FOR AT THE END OF ACCOUNTING YEAR WERE NOT DEBITED AT THAT TIME. FOR EXAMPLE:- THE FOLLOWING EXPENSES WERE NOT FULLY DEBITED IN THE PROFIT AND LOSS ACCOUNT ON 29.09.2010:- INTEREST ON PARTNERS CAPITAL RS. 201711/- REMUNERATION TO WORKING PARTNERS RS. 726616/- INTEREST ON LOAN TO PARTIES RS. 458215/- INTEREST ON LOAN TO BANK RS. 753894/- CASH PILFERAGE ACCOUNT RS.500000/- DEPRECIATION RS. 390194/- REBATE & DISCOUNT RS. 337171/- TRUCK INSURANCE RS. 61105/- AUDIT FEE & VAT AUDIT FEE RS. 21000/- 4 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 4 OTHER BUSINESS EXPENSES ARE ALSO FINALLY ASCERTAINE D AND PROVIDED AT THE CLOSE OF ACCOUNTING YEAR. AT THE END OF ACCOUNTING YEAR, THE BOOKS WERE FINAL IZED AND WERE DULY AUDITED. THE RETURN HAS BEEN FILED ON THE BASIS OF AUDITED PROFI T AND LOSS ACCOUNT AND BALANCE SHEET AND GIVE A TRUE AND REAL INCOME. WE HAVE ALSO PRODU CED THE BOOKS OF ACCOUNTS, BILLS AND VOUCHERS FOR YOUR VERIFICATION. AT THE TIME OF SURVEY, LOT OF PRESSURE WAS GIVEN ON US FOR DEPOSIT OF ADVANCE TAX WITHOUT CONSIDERING THE FACT THAT MAJOR EXPENSES AS MENTION ED ABOVE HAVE NOT BEEN DEBITED. TO RESOLVE THE MATTER AT THAT TIME, WE PAID THE ADVANC E TAX OF RS. 15 LAKH UNDER INTENSE PRESSURE. THE REFUND HAS BEEN DUE TO EXCESS ADVANCE TAX PAID. KEEPING IN MIND THE SUBMISSION MADE ABOVE AND THE A CCOUNTS BEING AUDITED AND FILED WITHIN DUE DATE, THE INCOME FILED BY CONSIDERED TRU E AND CORRECT WHILE COMPLETING THE ASSESSMENT. THANKING YOU, YOURS FAITHFULLY FOR TIRUPATI COMMERCIAL PARTNER SECOND LETTER DATED 20.2.2014 TO, DATE: 20.02.2014 THE INCOME TAX OFFICER, WARD NO. 42(1), KOLKATA PAN: AADFT 4683 K RE: REPLY TO YOUR SHOW CAUSE NOTICE DATED 22.01.2014 IN SCRUTINY ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 11-12 DEAR SIR, WITH REFERENCE TO ABOVE WE HUMBLY SUBMIT AS UNDER: - (1) REGARDING REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) OF THE INCOME TAX ACT, 1961 DUE TO LOW NET PROFIT, WE HAVE TO SAY THAT THE BOOKS OF ACCOUNTS ARE REGULARLY MAINTAINED ON MERCANTILE BASIS AND ARE DULY AUDITED AS REQUIRED B Y LAW. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ALL BOOKS OF ACCOUNTS WITH BILLS, VOUCHERS, DETAILS, EVIDENCES AND DOCUMENTS CALLED FOR BY YOU WERE PRODUCED AND S UBMITTED FOR VERIFICATION AND AT NO POINT OF TIME, ANY DEFECT WAS NOTICED AND/OR REP ORTED TO US. NOTICES U/S 133(6) WERE ISSUED TO VARIOUS PARTIES A ND THEIR REPLIES HAVE BEEN RECEIVED BY YOUR AND TALLIED WITH THE DETAILS FILED BY US. A LL THE EXPENSES AND INCOME SHOWN IN 5 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 5 THE PROFIT AND LOSS ACCOUNT ARE SUPPORTED WITH BILL S AND VOUCHERS AND ARE DULY RECORDED IN THE BOOKS WHICH HAVE BEEN AUDITED AND FROM IT CO RRECT PROFIT CAN BE DEDUCED. COMPARATIVE CHART OF GROSS PROFIT AND NET PROFIT R ATIO OF THE FIRM FOR THE LAST 3 YEARS AND THIS YEAR IS AS UNDER: FINANCIAL YEAR SALE GROSS PROFIT NET PROFIT GROS S PROFIT NET PROFIT 31.03.2008 91219635 2881542 64424 3.16% 0.07% 31.03.2009 105564072 3782071 69439 3.60% 0.07% 31.03.2010 119761857 3598212 113881 3.00% 0.10% 31.03.2011 167380721 6257803 958675 3.74% 0.57% YOUR HONOUR WILL APPRECIATE FROM THE ABOVE CHART GR OSS PROFIT & NET PROFIT RATE IS HIGHER IN ASSESSMENT YEAR 2011-12 IN COMPARISON TO PREVIOUS YEARS. THE PROFIT & LOSS A/C AS ON 29.09.2010 IS INCOMPLETE AND DOES NOT REF LECT REAL INCOME. MANY EXPENSES WHICH ARE ACCOUNTED FOR ON ACCRUAL BASIS AT THE END OF ACCOUNTING YEAR WERE NOT FULLY PROVIDED IN IT VIZ. INTEREST ON PARTNERS CAPITAL, D EPRECIATION ON FIXED ASSETS, REMUNERATION TO WORKING PARTNERS, INTEREST ON LOANS , AUDIT FEES ETC. WE ARE FURNISHING HEREWITH A COMPARATIVE STATEMENT OF EXPENSES FOR TH E PERIOD 01.04.2010 TO 29.09.2010 AND FOR THE PERIOD 30.09.2010 TO 31.03.2011. FROM T HIS COMPARATIVE STATEMENT OF EXPENSES FOR THE TWO PERIODS, IT IS CLEAR THAT THER E ARE MANY EXPENSES WHICH ACCRUE AT THE YEAR END AND AS PER MERCANTILE RULES OF ACCOUNT ING THEIR PROVISION IS MADE AT THE YEAR END. WE WOULD LIKE TO DISCUSS THE FOLLOWING EXPENSES AND REASONS FOR THEIR DEBIT ON ACCRUAL BASIS OR AT YEAR END: - I. INTEREST ON PARTNER'S CAPITAL INTEREST ON PARTNER'S CAPITAL WAS PROVIDED FOR ONLY ONE QUARTER IN THE PROFIT & LOSS ALC AS ON 29.09.2010 AND INTEREST FOR OTHER THREE QUART ERS OF RS. 149502/- WERE PROVIDED LATER ON AS IS EVIDENT FROM THE COMPARATIVE PROFIT & LOSS A/C. II. INTEREST ON LOAN PROVISION FOR INTEREST IS DONE BY US AT THE END OF THE ACCOUNTING YEAR EXCEPT WHEN INTEREST IS PAID EARLIER OR WHEN LOAN IS REPAID. BE FORE 29.09.2010, INTEREST OFRS. 95001- IS DEBITED IN PROFIT & LOSS ALE BECAUSE OF LOAN REP AYMENT AND INTEREST PAYABLE OF RS. 448715/- HAS BEEN DEBITED IN THE ACCOUNTS AT THE EN D OF ACCOUNTING YEAR ON ACCRUAL BASIS AND MERCANTILE BASIS AND IS EVIDENT FROM THE COMPARATIVE PROFIT & LOSS A/C FILED. III. INTEREST ON BANK LOAN 6 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 6 INTEREST ON BANK LOAN IS PROVIDED AS AND WHEN BANK DEBITS OUR ACCOUNT WITH THE INTEREST AMOUNT. TILL 29.09.2010, BANK HAD DEBITED INTEREST IN OUR ACCOUNT FOR RS. 243031/- AND THE SAME HAS BEEN PROVIDED BY US IN TH E ACCOUNTS. REST OF THE INTEREST ON BANK LOAN WAS DEBITED BY BANK LATER ON AFTER 29.09. 2010 AND HAS ACCORDINGLY BEEN DEBITED BY US AFTERWARDS AND IT IS CLEAR FROM THE C OMPARATIVE PROFIT & LOSS A/C FILED HEREWITH. IV. REMUNERATION TO WORKING PARTNER TILL 29.09.2010, REMUNERATION ACTUALLY WITHDRAWN BY THE WORKING PARTNERS WAS DEBITED TO THE REMUNERATION TO THE WORKING PARTNERS ACCOUNT . AS PER SECTION 40(B)(V) OF THE INCOME TAX ACT 1961, AND AS PER THE PARTNERSHIP DEE D, THE REMUNERATION IS CALCULATED AS PERCENTAGE OF BOOK PROFIT WHICH IS DETERMINED AT THE END OF ACCOUNTING YEAR. IN OUR CASE TOTAL REMUNERATION PAYABLE TO THE WORKING PART NER AS PER PARTNERSHIP DEED READ WITH SECTION 40(B)(V) IS RS. 726616/- AND HENCE AT THE YEAR END, BALANCE RS. 676616/- WAS ACCOUNTED FOR AND DEBITED TO THE REMUNERATION T O WORKING PARTNERS ACCOUNT AND IS EVIDENT FROM THE COMPARATIVE PROFIT & LOSS A/C. V. DEPRECIATION SURVEY WAS DONE ON 29.09.2010. TILL THAT DATE, ENTR Y FOR DEPRECIATION FOR ONE QUARTER WAS MADE. ALSO, THERE WAS PURCHASE OF A TRUCK IN DE CEMBER 2010. DEPRECIATION OF OTHER THREE QUARTERS WERE PROVIDED AT THE END OF AC COUNTING YEAR AT THE RATES PRESCRIBED UNDER INCOME TAX RULES AND IS SELF EXPLANATORY FROM THE FIXED ASSETS AND DEPRECIATION CHART FURNISHED WITH THE AUDITED BALANCE SHEET AND 3CD REPORT. VI. REBATE & DISCOUNTS REBATE & DISCOUNTS ARE ACCOUNTED FOR WHEN ACCOUNTS ARE SETTLED WITH THE PARTIES. WE HAVE ALREADY FURNISHED DETAILS OF REBATE & DISCOUNT S A/C AND LIST OF PARTIES TO WHOM REBATE & DISCOUNTS HAVE BEEN ALLOWED AND CLOSING BA LANCE OF OUR ACCOUNT WITH THE PARTIES IS TALLYING. TILL 29.09.2010, REBATE & DISC OUNTS ALLOWED WAS RS. 10069/-. BALANCE RS. 327101.79/- WAS ACCOUNTED FOR LATER ON AS AND WHEN ACCOUNTS WERE SETTLED WITH THE PARTIES. VII. PILFERAGE ACCOUNT CASH WAS PILFERED ON 19.02.2011 AND ALL THE DETAILS , EVIDENCES AND SUBMISSIONS HAVE BEEN FURNISHED WITH YOU. THE LOSS DUE TO EMBEZZLEME NT HAS BEEN RECOGNIZED ON THE DATE ON PILFERAGE. VIII. TRUCK INSURANCE TRUCK WAS PURCHASED IN DECEMBER 2010. TOTAL INSURAN CE PAID IS RS. 61105/- AND HAS BEEN RECOGNIZED AS AND WHEN PAID BY US. 7 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 7 IX. AUDIT FEE & VAT AUDIT FEE THESE EXPENSES ARE PROVIDED ON ACCRUAL BASIS AT THE END OF ACCOUNTING YEAR WHILE FINALIZING THE ACCOUNTS. FROM ABOVE IT IS CLEAR THAT ALL THE ABOVE EXPENSES WERE MAINLY INCURRED OR ACCRUED AFTER 29.09.2010 AND ACCORDINGLY, BEEN RECORDED IN THE BOOKS OF ACCOUNTS AFTER 29.09.2010 ON ACCRUAL BASIS. THE REASON STATED BY Y OUR HONOUR IN THE SHOW CAUSE NOTICE FOR REJECTION OF BOOKS OF ACCOUNTS U/S 145(3 ) IS LOW NET PROFIT. THIS COMPARISON OF NET PROFIT WITH INCOMPLETE ACCOUNTS IS NOT A FAIR C OMPARISON AT ALL. NET PROFIT RATIO DURING THE YEAR UNDER ASSESSMENT IS FAR HIGHER THAN EARLIER YEARS AS IS EVIDENT FROM THE COMPARATIVE CHART ENCLOSED. IT HAS BEEN HELD IN SEV ERAL JUDICIAL DECISIONS THAT BOOKS OF ACCOUNTS CANNOT BE REJECTED MERELY ON THE GROUND OF LOW NET PROFIT OR LOW GROSS PROFIT. LOW PROFIT WITHOUT ANY OTHER DEFECTS BEING FOUND IN THE ACCOUNT BOOKS IS NOT A SUFFICIENT GROUND FOR REJECTION OF ACCOUNTS. 'IT IS PREREQUISITE FOR THE INCOME TAX OFFICER THAT HE MUST REFER TO THE INHERENT DEFECT IN THE ACCOUNTING SYSTEM AND RECORD A CLEAR FINDING TH AT THE SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE IS NOT RELIABLE FOR ARRIVING AT COR RECT PROFITS BEFORE HE RESORTS TO REJECTING THE SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE FROM YEAR TO YEAR.' [ CIT V. MARGADARSI CHIT FUNDS PVT. LTD. (1985) 155 ITR 442 (AP)] 'THE ACCOUNTS BOOKS OF AN ASSESSEE CANNOT BE REJECT ED MERELY ON THE GROUNDOFLOW PROFITS.' [RAMCHANDRA RAMNIWAS V. STATE OF ORRIS A, ( 1970) 25 STC 501 (ORRISA)] THE METHOD OF ACCOUNTING FOLLOWED BY US IS CORRECT AND COMPLETE AND HAS BEEN CONSISTENTLY FOLLOWED OVER THE YEARS. IT IS SUPPORT ED BY ALL BILLS, VOUCHERS AND EVIDENCES AND TRUE AND CORRECT PROFIT CAN BE PROPERLY DEDUCED FROM OUR BOOKS AND ARE ALSO CHECKED AND CERTIFIED BY THE AUDITORS AND HAVE ALSO BEEN VERIFIED BY YOU IN THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT POINTING OUT ANY DEF ECT IN IT. IN SUCH CIRCUMSTANCES JUST BECAUSE PROFIT HAS REDUCED IN THE SECOND HALF OF THE YEAR, THE ASSESSING OFFICER IS NOT WARRANTED TO REJECT BOOKS U/S 145(3). IN VIEW OF ABOVE FACTS AND DIRECT EVIDENCES AND THE EXPLANATION AND SUBMISSIONS MADE, INVOKING THE PROVISIONS OF SECTION 145(3) ON THE SO LE GROUND OF LOW NET PROFIT WITHOUT FINDING THAT THE ACCOUNTS ARE NOT CORRECT OR COMPLE TE OR INCOME COULD NOT BE PROPERLY DEDUCED FROM THE METHOD OF ACCOUNTING EMPLOYED BY T HE ASSESSEE WILL BE BAD IN LAW AND THE PROCEEDINGS ULS 145(3) MAY BE DROPPED. (2) REGARDING CASH PILFERAGE WE HAVE TO SAY THAT C ASH WAS PILFERED ON 19.02.2011 AND ALL THE DETAILS, EVIDENCES AND SUBMISSIONS HAVE BEEN FURNISHED WITH YOU. CASH WAS KEPT AT THE RELATIVE'S HOUSE WHO LIVES IN THE SAME BUILDING FOR BETTER SAFETY OF MONEY. AT NIGHT, OUR OFFICE REMAINS CLOSED AND WE HAVE NO NIG HT GUARD SYSTEM IN PLACE. SO, FOR 8 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 8 SAFETY OF BUSINESS FUNDS, UNUTILIZED CASH IS KEPT A T THE RELATIVE'S HOUSE AT NIGHT AND TAKEN BACK IN THE MORNING FOR BUSINESS USE. IN VIEW OF THE FACTS AND EVIDENCES SUBMITTED, AND T HE LEGAL POSITION AS STANDS, THIS LOSS OF BUSINESS FUND BY EMBEZZLEMENT BY THE EMPLOYEE OF THE FIRM IS FULLY ALLOWABLE. WE HAVE ALREADY SUBMITTED A DETAILED REPRESENTATION ON THIS MATTER. WE HAD FILED AN FIR ON 21/02/2011 COPY OF WHICH HAS ALREADY BEEN SUBMITTED TO YOU. AS REGARDS DESIGNATION OF EMPLOYEE, HE WAS A REGULAR EMPLOYEE WHO WAS WORKING BOTH IN THE ACCOUNTS DEPARTMENT AND DID VARIOUS CLERICAL WORKS. HE WAS A LSO SENT TO BANK FOR DEPOSITING CASH SOMETIMES. HIS NAME, FATHER'S NAME, ADDRESS ET C HAS ALREADY BEEN SUBMITTED TO YOU. ALL DETAILS OF THE EMPLOYEE AS AND WHEN ASKED BY YOU HAVE BEEN GIVEN BY US VIA WRITTEN REPLIES. YOU HAVE MENTIONED THAT WE HAVE TA KEN NO STEPS TO RECOVER THE CASH EVEN THOUGH WE HAVE SUBMITTED BEFORE YOU THAT AN FI R HAS BEEN FILED BY US AT BURTOLLA POLICE STATION. THERE IS NO TRACE OF MR. DAGA AND W E ARE DEPENDENT ON POLICE TO FIND HIM. AS REGARDS PROFESSIONAL TAX WE HAVE NOT DEDUCT ED ANY P.TAX OF THE SAID EMPLOYEE. LOSS DUE TO EMBEZZLEMENT IS FULLY ALLOWABLE AND WE STRONGLY CONTEND YOUR INTENTION TO DISALLOW IT. (3) DONATION AMOUNT OF RS. 14100/- HAS BEEN DEBITED IN PIL ALC. INADVERTENTLY, WE HAVE CLAIMED IT AS A EXPENDITURE. YOU ARE REQUESTED TO D ISALLOW 50% OF IT. (4) WE HAVE ALREADY SUBMITTED INSURANCE RECEIPTS FO R RS. 52535. RS. 8570 TRUCK INSURANCE PREMIUM RECEIPT IS MISSING BUT IT HAS BEE N PAID BY CHEQUE. YOUR HONOUR IS REQUESTED TO TREAT ITS ALLOWABILITY AS PER LAW. (5) REGARDING DIFFERENCE IN CASH & CLOSING STOCK, T HE AMOUNT INVOLVED IS VERY SMALL AND MAY BE ADDED TO INCOME AS PER LAW. YOUR HONOUR IS REQUESTED TO KINDLY LOOK INTO THE AB OVE MATTERS JUDICIOUSLY AND LET US KNOW IF ANY FURTHER CLARIFICATION IS REQUIRED. THANKING YOU YOURS FAITHFULLY FOR TIRUPATI COMMERCIAL PARTNER ENCLOSED: COMPARATIVE STATEMENT OF EXPENSES FOR THE PERIOD 01.04.2010 TO 29.09.2010 AND FOR THE PERIOD 30.09.2010 TO 31.03.2011. 9 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 9 THE ASSESSEE ALSO FILED A COMPARATIVE STATEMENT OF ENTIRE EXPENDITURE OF THE ASSESSEE FIRM IN A TABULAR FORM FOR THE PERIOD 01.04.2010 TO 29.09.2010 AND FROM 30.09.2010 TO 31.03.2011 AS UNDER: PARTICULARS AMOUNT FOR THE PERIOD 01.04.2010 TO 29.09.2010 AMOUNT FOR THE PERIOD 30.09.2010 TO 31.03.2011 AMOUNT FOR THE PERIOD 01.04.2010 TO 31.03.2011 TO SALARY & BONUS 160000.00 224000.00 384000.00 TO RENT 2346.00 6256.00 8602.00 TO CONVEYANCE 25199.00 25292.00 50491.00 TO PRINTING & STATIONERY 3554.00 3554.00 TO TELEPHONE CHARGES 19660.00 178282.28 37488.28 TO POSTAGE & TELEGRAMS 5300.00 4500.00 9800.00 TO OFFICE MAINTENANCE 9523.00 2493.00 12016.00 TO ELECTRIC CHARGES 46680.00 37470.00 84150.00 TO BOOKS & PERIODICALS 5410.00 7003.00 12413.00 TO GENERAL CHARGES 30457.00 23349.33 53806.33 TO REBATE & DISCOUNT 10069.00 327101.79 337170.79 TO REPAIRS & MAINTENANCE 3442.00 9899.00 13341.00 10 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 10 TO CST PAID AGST ASSESSMENT 20829.00 20829.00 TO MOTOR CYCLE MAINTENANCE 9375.00 8008.00 17383.00 TO TRUCK INSURANCE 61105.00 61105.00 TO DONATION 2100.00 12000.00 14100.00 TO ADVERTISEMENT 500.00 4800.00 5300.00 TO BANK CHARGES 35821.00 34151.00 69972.00 TO ROUND OFF - 13.22 13.81 0.59 TO LEGAL CHARGES 272.00 3544.00 3816.00 TO AUDIT FEES 15000.00 15000.00 TO DEPRECIATION 76685.00 313509.00 390194.00 TO INTEREST PAID TO PARTIES 9500.00 448715.00 458215.00 BANK 243031.00 510863.00 753894.00 OTHERS 96.00 96.00 TO MOTOR CAR MAINTENANCE 34911.00 28623.10 63534.10 TO MAINTENANCE OF TRUCK 222414.53 210149.68 432564.21 TO CARRIAGE OUTWARD 336125.00 188000.00 524125.00 TO FIRE LICENSES FEES 972.00 972.00 TO PROCESSING FEE FOR LOANS 20000.00 20000.00 40000.00 11 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 11 TO PROFESSIONAL TAX 2400.00 2400.00 TO TRADE LICENSE FEES 1025.00 1025.00 TO TRAVELLING & CONVEYANCE 10001.00 8968.00 18969.00 TO CASH PILFERAGE A/C 500000.00 500000.00 TO VAT AUDIT FEE 6000.00 6000.00 TO INTEREST PAID TO PARTNERS 52209.00 149502.00 201711.00 TO REMUNERATION PAID TO WORKING PARTNERS RAJ KUMAR SINGHAL 10000.00 135323.20 145323.20 ARUN KUMAR BAGLA 20000.00 270646.40 290646.40 ASHISH BAGLA 20000.00 270646.40 290646.40 1421017.31 3913635.99 5334653.30 5. THE ASSESSEE ALSO EXPLAINED THAT THERE WAS A C ASH EMBEZZLEMENT TO THE TUNE OF RS. 5 LAKHS WHICH WERE DEBITED BY THE ASSESSEE AS A CASH PILFERAGE LOSS IN THE PROFIT AND LOSS ACCOUNT DURING THE SECOND HALF OF THE FINANCIAL YEA R. THE ASSESSEE ALSO EXPLAINED THAT THIS LOSS HAD AROSE IN VIEW OF THE FOLLOWING REASON S. IT WAS THE REGULAR PRACTICE OF THE ASSESSEE TO KEEP THE UTILIZED CASH WITH THE MATERNA L UNCLE OF ONE OF THE PARTNERS OF THE ASSESSEE-FIRM, MR. PRAMENDRA KEJRIWAL, WHO WAS RESI DING IN THE SECOND FLOOR OF THE SAME PREMISES AND USED TO BRING THE CASH IN THE NEX T MORNING FOR DAILY OFFICIAL USE FROM HIS HOUSE AS THERE WAS NO NIGHT GUARD FACILITY AVAI LABLE TO ASSESSEE FIRM. IT WAS CONTENDED THAT ON 19.02.2011, ONE OF THE THEIR STAF F MR. ANIRUDDHA DAGA WAS INSTRUCTED TO BRING THE CASH AMOUNTING TO RS. 5,45,000/- (APPR OX) FROM THE MATERNAL UNCLES HOUSE WHICH WAS TO BE DEPOSITED IN THE BANK. HOWEVER, ANI RUDDHA DAGA, TOOK THE CASH FROM 12 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 12 THE MATERNAL UNCLE HOUSE AND HAD LEFT THE BAG CONTA INING RS. 45,000/- (APPROX) AND TOOK AWAY RS. 5,00,000/- ALONG WITH HIM. IT WAS ALSO EXP LAINED THAT THE FIRST INFORMATION REPORT (FIR) WAS LODGED AGAINST M/S ANIRUDDHA DAGA WITH OFFICER-IN-CHARGE, BURTOLLA POLICE STATION, KOLKATA DATED 21.02.2011 CONTAINING THE DETAILS OF ANIRUDDHA DAGA, HIS FIRST NAME AND ADDRESS. THE ASSESSEE ENCLOSED THE C OPY OF THE SAID FIR VIDE ITS LETTER DATED 10.01.2014 BEFORE THE LD. AO. THE ASSESSEE A LSO EXPLAINED THAT PROFESSIONAL TAX WAS NOT DEDUCTED ON PAYMENT OF SALARY MADE BY THE A SSESSEE TO M/S ANIRUDDHA DAGA SINCE HIS SALARY WAS BELOW THE ELIGIBLE LIMIT PRESC RIBED. THIS EXPLANATION WAS NOT FOUND SATISFACTORY BY THE LD. AO AND ACCORDINGLY, HE PROC EEDED TO DISALLOW THE SUM OF RS. 5 LAKHS AS NOT INCURRED FOR THE PURPOSE OF BUSINESS O F THE ASSESSEE. 6. THE LD. AO ALSO PROCEEDED TO DISALLOW THE SUM O F RS. 8,570/- TOWARDS TRUCK INSURANCE CHARGES FOR WANT OF INSURANCE PREMIUM REC EIPT THEREON. 7. THE LD. CIT(A) APPRECIATED THE ENTIRE CONTENTION S OF THE ASSESSEE AND HELD THAT THE BOOKS OF ACCOUNTS OUGHT NOT TO HAVE BEEN REJECTED B Y THE LD. AO AS NO DEFECTS WERE POINTED OUT BY THE LD. AO THEREON. ACCORDINGLY, HE DELETED THE ADDITION MADE IN THE SUM OF RS. 58,58,525/- WHICH WERE MADE ON AN ESTIMA TE BASIS BY THE LD. AO. IN OTHER WORDS, THE LD. CIT(A) DELETED THE ACTION OF THE LD. AO IN RESORTING TO DETERMINATION OF NET PROFIT AT 3.5% OF TURNOVER ON ESTIMATE BASIS. T HE LD. CIT(A) ALSO DELETED THE ADDITION MADE THAT THE DISALLOWANCE TOWARDS CASH PI LFERAGE LOSS OF RS. 5 LAKHS AND APPRECIATED THE CONTENTIONS OF THE ASSESSEE IN AS M UCH AS THAT THE ASSESSEE HAD DULY FILED FIRST INFORMATION REPORT WITH THE JURISDICTIONAL PO LICE STATION WHICH ITSELF WOULD PROVE THE EMBEZZLEMENT OF CASH. HE ALSO PLACED RELIANCE O N THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF BADRIDAS DAGA VS. CIT REPORTED IN 34 ITR 10 (SC) WHEREIN IT WAS HELD THAT THE LOSS ON ACCOUNT OF EMB EZZLEMENT OF CASH BY EMPLOYEE IS AN ALLOWABLE EXPENDITURE. WITH REGARD TO THE DISALLOWA NCE OF TRUCK INSURANCE CHARGES OF RS. 8,570/-, THE ASSESSEE SUBMITTED THE INSURANCE PREMIUM RECEIPT FOR THE FIRST TIME 13 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 13 BEFORE THE LD. CIT(A). ACCORDINGLY, THE LD. CIT(A) DIRECTED THE LD. AO TO VERIFY THE SAME AND DECIDE ON THE ALLOWABILITY OF THE SAME. AG GRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), KOLKATA ERRED IN LAW BY ALLOWING RELIEF TO THE ASSESSEE, WHICH WA S CONTRARY TO ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS AGAINST LAW. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) WAS CORRECT IN DELETING THE ADDITION MADE BY THE AO AFT ER REJECTING BOOKS OF ACCOUNTS UNDER SECTION 145(3). 3. THE LD. CIT(A), KOLKATA ERRED IN ALLOWING THE AS SESSEES APPEAL WHEN THERE WERE SUFFICIENT CAUSES AGAINST THE ASSESSEE FOR REJ ECTION OF BOOKS OF ACCOUNTS UNDER SECTION 145(3) OF THE I.T. ACT, 1961. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A)-13, KOLKATA WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO WITHOUT GIVING OPPORTUNITY TO THE AO. 5. THAT LD. CIT(A) FAILED TO APPRECIATE AND TAKE CO GNIZANCE OF ALL THE MATERIAL FACTS FURNISHED IN THE ORDER WHILE ALLOWING ASSESSE ES APPEAL. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTS ET, WE FIND THAT THE LD. CIT(A) HAD GIVEN A CATEGORICAL FINDING THAT THE ACTION OF THE LD. AO IN RESORTING TO DETERMINATION OF NET PROFIT ON AN ESTIMATE BASIS WITHOUT POINTING OU T ANY DEFECTS IN THE BOOKS OF ACCOUNTS PRODUCED BY THE ASSESSEE, IS UNWARRANTED. IT IS NO W WELL SETTLED THAT THE LD. AO COULD RESORT TO ESTIMATION OF NET PROFIT ONLY AFTER REJEC TION OF BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT AND THAT TOO ONLY AFTER POINTING OUT SPECIF IC DEFECTS THEREON. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE LD. CIT(A) IN DELETING THE ADDITION IN THE SUM OF RS. 58,58,325/-. MOREOVER, WE ALSO AGREE THAT THERE WERE LOT OF EXPENSES AS DETAILED HEREINABOVE WHICH WERE DEBITED BY THE ASSESSEE ONL Y DURING THE SECOND HALF OF THE FINANCIAL YEAR WHICH IN TURN HAD CONTRIBUTED TO THE REDUCTION OF NET PROFIT IN THE SECOND 14 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 14 HALF OF THE FINANCIAL YEAR. WE ALSO FIND THAT THERE ARE CERTAIN EXPENDITURES WHICH WERE DEBITED ONLY IN THE SECOND HALF SUCH AS CASH PILFER AGE LOSS ETC. WHICH AGAIN HAD COMPUTED TO LOWER NET PROFIT FOR THE WHOLE YEAR. HE NCE, THE ACTION OF THE LD. AO IN RESORTING TO ESTIMATION OF A NET PROFIT ON THE BASI S OF NET PROFIT DECLARED UP TO THE DATE OF SURVEY I.E. THE FIRST HALF OF THE YEAR IS NOT TENAB LE AS PER LAW. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE LD. CIT(A) WAS JUST IFIED IN DELETING THE ADDITION OF RS. 58,58,325/- TOWARDS ESTIMATED NET PROFIT. 9. WITH REGARD TO CASH PILFERAGE LOSS OF RS. 5 LAKH S WHICH WERE DEBITED BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS AND CLAIMED AS DEDUCTION, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF BADRIDAS DAGA (SUPRA). THE VERY FACT THAT THE ASSESSEE HAD PREFERRED FIRST INFORMATION REPORT BEFORE THE JURISDICTIONAL POLICE STATION ITSELF PROVES THE FAC T OF EMBEZZLEMENT OF CASH. IT IS NOT IN DISPUTE THAT THE SAID CASH OF RS. 5 LAKHS REPRESENT S THE CASH BELONGING TO THE BUSINESS OF THE ASSESSEE. HENCE, IT BECOMES A BUSINESS ASSET OF THE ASSESSEE. ANY LOSS ARISING OUT OF BUSINESS ASSET WOULD BE SQUARELY ALLOWABLE AS DEDUC TION. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE LD. CIT(A) IN DIRECT ING THE LD. AO TO DELETE THE ADDITION OF RS. 5 LAKHS. 10. WITH REGARD TO DISALLOWANCE OF TRUCK INSURANCE CHARGES AMOUNTING TO RS. 8,570/-, THE LD. CIT(A) HAD MERELY DIRECTED THE LD. AO TO VE RIFY THE SAID INSURANCE PREMIUM RECEIPT FILED BY THE ASSESSEE BEFORE THE LD. CIT(A ) FOR THE FIRST TIME, AND DECIDE THE ALLOWABILITY OF THE SAME BASED ON THE EVIDENCE FURN ISHED THEREON. WE HOLD THAT THE REVENUE CANNOT HAVE ANY GRIEVANCE ON THE SAID DIREC TIONS. HOWEVER, FOR THE SAKE OF CLARITY AND COMPLETENESS AND IN ORDER TO SETTLE THE ENTIRE DISPUTES TO REST, WE DEEM IT FIT AND APPROPRIATE TO REMAND THE ISSUE TO THE FILE OF THE LD. AO, TO VERIFY THE INSURANCE PREMIUM RECEIPT SUBMITTED BY THE ASSESSEE AND DECI DE THE SAME IN ACCORDANCE WITH LAW. 15 ITA NO.1329/KOL/2015 M/S TIRUPATI COMMERCIAL A.YR.2011-12 15 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 08.11.2017 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BALAGA NESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 08.11.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-43(1), KOLKATA, 3, GOVT. PLACE (WEST), GROUND FLOOR, KOL-1. 2. M/S TIRUPATI COMMERCIAL, 98, B.K. PAUL AVENUE, K OLKATA-700005 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S