M/s. Laxmi Dairy, Mehsana V. The Dy.CIT.,Cent.Circle-1(3), Ahmedabad

ITA 1858/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9393 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: M J SHAH
• Keywords: Income from undisclosed sources; Cost of acquisition
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NOS: 1857 & 1858/AHD/2012 (ASSESSMENT YEARS: 2008-09 & 2009-10) M/S. LAXMI DAIRY HIMATNAGAR HIGHWAY ROAD, BESIDE SHRINATH SOCIETY, VIJAPUR, DIST. MEHSANA. V/S DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAAFL5617J APPELLANT BY : SHRI M.J. SHAH, AR RESPONDENT BY : SHRI OM PRAKASH MEENA, SR. D .R. ( )/ ORDER DATE OF HEARING : 23 -01-201 7 DATE OF PRONOUNCEMENT : 24 -01-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THESE TWO APPEALS BY THE ASSESSEE ARE PREFERRED AGA INST TWO SEPARATE ORDERS OF THE LD. CIT(A)-III & CIT(A)-I DATED 31.10 .2011 & 15.06.2012 PERTAINING TO A.YS. 2008-09 & 2009-10 RESPECTIVELY. ITA NOS. 185 7 & 1858/AHD/2012 . A.YS. 2008-0 9 & 2009-10 2 2. SINCE BOTH THESE APPEALS HAVE COMMON GRIEVANCE, THE REFORE, THEY WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 3. WE HEARD THE LD. COUNSEL ON THE FACTS OF ITA NO. 18 57/AHD/2012 FOR A.Y. 2008-09. 4. THIS APPEAL IS BARRED BY LIMITATION BY 203 DAYS. TH E COUNSEL PRAYED FOR THE CONDONATION OF THE DELAY AND REFERRED TO THE AFFIDA VIT OF THE ACCOUNTANT, SHRI SURESHBHAI B. PATEL AND POINTED OUT THAT BECAU SE OF THE INADVERTENT MISTAKE OF THE ACCOUNTANT, THE APPEAL PAPERS REMAIN ED IN THE FILES OF A.Y. 2009-10 AND WHEN THE APPEAL FOR A.Y. 2000-10 WAS PR EPARED IT CAME TO THE NOTICE THAT THE APPEAL FOR A.Y. 2008-09 REMAINED TO BE FILED. 5. WE HAVE CAREFULLY CONSIDERED THE FACTS MENTIONED IN THE AFFIDAVIT. AFTER GIVING A THOUGHTFUL CONSIDERATION, WE FIND THAT THE ASSESSEE WAS PREVENTED BY REASONABLE AND BONA FIDE A CAUSE FOR NOT FILING THE APPEAL ON TIME. THE DELAY IS ACCORDINGLY CONDONED. 6. THE ASSESSEE IS IN THE BUSINESS OF TRADING IN MILK. WHILE SCRUTINIZING THE RETURN OF INCOME, THE A.O. NOTICED THAT THE ASSESSE E HAS SHOWN GROSS PROFIT OF RS. 27,17,417/- AND SALES OF RS. 5,10,13,498/- W HICH COMES TO RS. 5.32% AS AGAINST 8.81% SHOWN IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. 7. THE A.O. FURTHER NOTICED THAT DURING THE MONTHS OF NOVEMBER AND DECEMBER, THE ASSESSEE HAS SOLD MILK AT PRICE LOWER THAN THE PURCHASE ITA NOS. 185 7 & 1858/AHD/2012 . A.YS. 2008-0 9 & 2009-10 3 COST. THE A.O. WAS OF THE FIRM BELIEF THAT THERE IS NO JUSTIFICATION FOR INCURRING LOSS IN THE MONTH OF NOVEMBER AND DECEMBE R. THE A.O. ADDED THE TOTAL LOSS AT RS. 3,86,411/-. 8. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 9. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE ASSESSEE IS DEALING IN PERISHABLE ITEMS AND DURING NOVEMBER AND DECEMBER, BEING WINTER SEASON, FOR SOME REASON OR T HE OTHER. THE ASSESSEE COULD NOT SELL THE MILK AND WAS FORCED TO SELL THE SAME AT PRICE LESSER THAN THE PURCHASE COST. IT IS THE SAY OF THE LD. COUNSEL THAT MERELY BECAUSE OF THE LESSER PRICE, THE A.O. CANNOT COME TO THE CONCLUSIO N THAT THE ASSESSEE HAS EARNED SOME UNACCOUNTED INCOME. THE LD. COUNSEL FUR THER POINTED OUT THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR DURING THE MONTH OF NOVEMBER, THE ASSESSEE SOLD MILK AT A PRICE WHICH W AS LESSER THAN THE PURCHASE COST AND THE SAME WAS ACCEPTED BY THE A.O. U/S. 143(3) OF THE ACT. PER CONTRA, THE LD. DR. STRONGLY SUPPORTED THE FINDINGS OF THE A.O. 10. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW. IT IS TRUE THAT THE ASSESSEE IS DEALING IN A PERISHABLE GOOD. IT IS ALSO TRUE THAT ONCE THE MILK IS PURCHASED IT HAS TO BE SOLD AT ANY COST . IT IS AN UNDISPUTED FACT THAT THE A.O. COULD NOT FIND ANY DEFECT OTHER THAN STATED BY HIM FOR THE MONTH OF NOVEMBER AND DECEMBER. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS EARNED SOME UNACCOUNTED INCOME WHI CH WAS NOT SHOWN BY IT IN ITS BOOKS OF ACCOUNTS. NO OTHER DEFECT HAS BEEN POINTED OUT IN THE ITA NOS. 185 7 & 1858/AHD/2012 . A.YS. 2008-0 9 & 2009-10 4 BOOKS OF ACCOUNTS. WE DO NOT FIND ANY MERIT IN THE IMPUGNED ADDITIONS MADE BY THE A.O. BASED ON CONJECTURES AND SURMISES. WE, ACCORDINGLY, SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE ADDITION OF RS. 3,86,411/- FOR A.Y. 2008-09 AND RS. 7,18,866 /- FOR A.Y. 2009-10. 11. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 01- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 24 /01/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD