KG PETROCHEM LTD., Jaipur V. ACIT, Jaipur

ITA 234/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99577 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 28-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANGAL JCIT DHK
• Keywords: Deemed dividend
• Section: 145

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NOS. 234 & 235/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 1999-2000 & 2005-06 M/S K.G. PETROCHEM LTD., C-171, ROAD NO. 9J, VKI AREA, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAACK 7052 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/10/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 14/12/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. BOTH THE APPEALS FILED BY THE ASSESSEE ARISING OUT OF AGAINST THE ORDERS DATED 03/01/2014 AND 10/2/2014 PASSED BY THE LD CIT(A)-II, JAIPUR FOR A.Y. 1999-2000 AND 2005-06. THE EFFECTIVE GROUN DS OF BOTH THE ASSESSMENT YEARS ARE AS UNDER:- GROUNDS OF ITA NO. 234/JP/2014 (A.Y. 1999-2000) 1. THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT DIRECTING THE A.O. TO INCREASE THE OPENING STOCK BY THE AMOUNT OF EXCISE DUTY OF RS. 16,20,151/- IN GIVING 2 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT EFFECT OF SECTION 145A AND ALSO NOT FOLLOWING THE DIRECTION OF HONBLE ITAT ON THIS ISSUE WHILE SETTING ASIDE THIS MATTER TO THE ASSESSING OFFICER IN LIGHT OF DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. MAHAVEER ALUMINIUM LTD. 297 ITR 77. 1.1 THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN MAK ING UNWARRANTED OBSERVATION WHILE NOT ALLOWING THE CLAIM OF THE ASSESSEE AS PER THE DIRECTION OF THE HONBLE ITAT. GROUNDS OF ITA NO. 235/JP/2014 (A.Y. 2005-06) 1. THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE A.O. IN MAKING ADDITIO N OF RS. 20,45,362/- BY HOLDING THE ADVANCE GIVEN BY M/S CHROME INTERNATIONAL COMPANY LTD. TO THE ASSESSEE A S DEEMED DIVIDEND U/S 2(22)(E). 2. IN THE ASSESSEES APPEAL FOR A.Y. 1999-2000 THE SOLE GROUND OF APPEAL IS AGAINST NOT ALLOWING THE OPENING STOCK BY THE AMOUNT OF EXCISE DUTY OF RS. 16,20,151/- IN GIVING EFFECT OF SECTION 145A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). IN THIS CASE, THE COO RDINATE BENCH VIDE ORDER DATED 25/2/2009 IN ITA NO. 1123/JP/2008 HAD SET ASI DE THE ISSUE OF ADJUSTMENT OF EXCISE DUTY U/S 145A AS UNDER:- 6. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT UPTO THE INTRODUCTION OF SECTION 145A IN THE I.T. ACT, 1961 B Y FINANCE (NO.2) BILL 1998 WITH EFFECT FROM 01/4/1999, THE AS SESSEE 3 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT HAD BEEN FOLLOWING EXCLUSIVELY METHOD OF VALUATION O F CLOSING STOCK WHEREBY THE TAX WAS NOT INCLUDED IN THE VALUE OF PURCHASE AND SALE OF STOCK. IN THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 1999-2000 WITH EF FECT FROM WHICH THE APPLICATION OF SECTION 145A CAME INTO EFFECT, THE ASSESSEE GAVE EFFECT TO THE ELEMENT OF EXCISE D UTY IN THE STOCK, PURCHASE AND SALES AS UNDER:- ADJUSTMENT MADE U/S 145A EXCISE DUTY ON CLOSING STOCK RS. 11,76,549/- LESS: EXCISE DUTY ON OPENING STOCK (AMOUNT WRONGLY TAKEN AS OPENING BALANCE OF MODVAT ACCOUNT INSTEAD OF EXCISE DUTY ON OPENING STOCK RS . 5,33,354/- INCOME INCREASED BY RS. 6,43,195/- HOWEVER, THERE WAS A MISTAKE IN THE ABOVE WORKING AS INSTEAD OF REDUCING THE AMOUNT OF EXCISE DUTY IN TH E OPENING STOCK AT RS. 21,53,505/-, THE ASSESSEE REDUCED THE AMOUNT OF OPENING BALANCE IN MODVAT ACCOUNT AT RS. 5,33,354/- . HAD THE CORRECT ADJUSTMENT BEEN MADE THE INCOME WOULD HA VE BEEN REDUCED BY RS. 9,76,956/- AS UNDER:- ADJUSTMENT WHICH SHOULD HAVE BEEN MADE EXCISE DUTY ON CLOSING STOCK RS. 11,76,549/- LESS: EXCISE DUTY ON OPENING STOCK RS. 21,53,505 /- INCOME WOULD HAVE REDUCED BY RS. 9,76,956/-. THE A.O. DENIED THE CLAIM WITH THIS OBSERVATION THAT NEITHER THE CLOSING STOCK AS ON 31/3/1998 NOR THE OPENING S TOCK AS ON 31/3/1999 AS PER THE BOOKS OF ACCOUNT INCLUDED T HE ELEMENT OF EXCISE DUTY. THE A.O. OBSERVED THAT THE A SSESSEE TOOK THE VALUE OF EXCISE DUTY ON THE OPENING STOCK AS ON 4 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT 01/4/1998 AT RS. 5,33,354/- WHEREAS THE VALUE OF CLO SING STOCK AS ON 31/3/1998 DID NOT INCLUDE THE SAID VALU E OF EXCISE DUTY OF RS. 5,33,354/-. THUS IN CRUX, THE A.O. WAS OF THE VIEW THAT IF THE EXPENDITURE DID NOT FORM PART OF CLOSIN G STOCK IN THE IMMEDIATELY PRECEDING YEAR, HOW IT CAN FORM PART OF OPENING STOCK OF ASSESSMENT YEAR 1999-2000. THE A.O. ACCORDINGLY HELD THAT THE METHOD OF VALUATION WITH T HE EXCISE DUTY ELEMENT ON OPENING STOCK FOR ASSESSMENT YEAR 1999- 2000 ADOPTED BY THE ASSESSEE IS NOT IN ACCORDANCE WI TH THE PROVISIONS OF LAW. HE ACCORDINGLY HELD THAT THE PROF ITS SHOWN FOR ASSESSMENT YEAR 1999-2000 HAS BEEN UNDERSTATED BY RS. 5,33,354/- AND ADDED THIS AMOUNT IN THE INCOME OF T HE ASSESSEE. THE LD CIT(A) HAS UPHELD THE FINDING OF THE A.O.. THUS THE ISSUE BEFORE US IS AS TO WHETHER THE OPENIN G STOCK AS ON 01/4/1998 SHOULD BE ADJUSTED AS REQUIRED UNDE R SECTION 145A OF THE ACT. IN THIS REGARD THE DECISIO N OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS MAHAVIR ALUM INIUM LTD. (SUPRA) RELIED UPON BY LD. A/R, RELEVANT EXTRA CT WHEREOF HAS BEEN REPRODUCED HEREIN ABOVE IS RELEVANT. IN TH IS CASE AFTER DISCUSSING THE ISSUE IN VIEW OF FINANCE NO. 2 BILL, 1998 AS WELL AS GUIDANCE NOTE ON TAX AUDIT UNDER SECTION 44AB ISSUED BY ICAI, THE HON'BLE DELHI HIGH COURT HAS B EEN PLEASED TO HOLD THAT SECTION 145A OF THE ACT BEGINS WITH A NON-OBSTANTE CLAUSE, AND THEREFORE, TO GIVE EFFECT TO SECTION 145A OF THE ACT, IF IT IS A CHANGE IN THE CLOSING S TOCK AS ON MARCH 31, 1999, THERE MUST NECESSARILY BE A CORRESP ONDING 5 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT ADJUSTMENT MADE IN THE OPENING STOCK AS ON APRIL 1, 1998. THE HON'BLE HIGH COURT HAS BEEN ALSO PLEASED TO HOLD THAT IF ANY ADJUSTMENT IS REQUIRED TO BE MADE BY A STATUTE (AS FOR EXAMPLE 145A OF THE ACT), EFFECT TO THE SAME SHOULD BE GIVEN IRRESPECTIVE OF ANY CONSEQUENCES ON THE COMPUTATION OF INCOME FOR TAX PURPOSES. WE THUS IN THE INTEREST OF JUSTICE WHILE SETTING ASIDE THE ORDERS OF THE LOWER AUTHORIT IES IN THIS REGARD REMAND THE MATTER TO THE FILE OF A.O. TO EXA MINE THE APPROACH OF THE ASSESSEE WHILE APPLYING THE PROVISI ONS OF SECTION 145A OF THE ACT. IN VIEW OF THE ABOVE DECIS ION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. MAH AVIR ALLUMINIUM LTD. (SUPRA), THE A.O. IS ALSO DIRECTED TO VERIFY THE CORRECTNESS OF THE CONTENTION OF THE LD A/R THAT TH E ASSESSEE, BY MISTAKE HAS REDUCED AN AMOUNT OF RS. 5,33,354/- ON ACCOUNT OF EXCISE DUTY ON OPENING STOCK INSTEAD OF CORRECT AMOUNT OF RS. 21,53,505/- AND REDUCE THE INCOME BY RS. 16,20,151/- (RS. 21,53,505 RS. 5,33,354/-), IF HE FINDS THE SAID CLAIM IS CORRECT WHILE DECIDING THE ISSUE IN VI EW OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE ABOVE M ENTIONED CASE OF CIT VS. MAHAVIR ALLUMINIUM LTD. (SUPRA). IT IS NEEDLESS TO MENTION OVER HERE THAT WHILE DECIDING TH E ISSUE, THE ASSESSEE WILL BE AFFORDED ADEQUATE OPPORTUNITY O F BEING HEARD BEFORE HIM. THE GROUND NO. 1 IS ACCORDING ALL OWED FOR STATISTICAL PURPOSES. THE LD ASSESSING OFFICER AGAIN COMPLETED THE SET ASI DE PROCEEDING VIDE ORDER DATED 31/12/2010. THE LD ASSESSING OFFICER HEL D THAT IT IS UNDISPUTED 6 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT FACT THAT THE ASSESSEE DID NOT INCLUDE THE ELEMENT OF EXCISE DUTY IN THE BOOKS OF ACCOUNT. THUS NEITHER THE CLOSING STOCK AS ON 31/3/1998 NOR THE OPENING STOCK AS ON 01/4/1998 AS PER BOOKS OF ACCOU NT INCLUDED THE ELEMENT OF EXCISE DUTY. IN THE A.Y. 1999-2000 FOR T HE PURPOSE OF MAKING VALUATION U/S 145A THE ASSESSEE TOOK THE VALUE OF E XCISE DUTY ON THE OPENING STOCK AS ON 01/4/1998 AT RS. 5,33,354/- WHER EAS THE VALUE OF CLOSING STOCK AS ON 31/3/1998 DID NOT INCLUDE THE S AID VALUE OF EXCISE DUTY OF RS. 5,33,354/-. THIS METHOD OF VALUATION OF OPEN ING STOCK WITH EXCISE DUTY HAS THE EFFECT OF REDUCING THE PROFIT OF ASSES SMENT YEAR 1999-2000 BY RS. 5,33,354/-. THIS METHOD OF VALUATION WITH THE EXC ISE DUTY ELEMENT ON OPENING STOCK FOR A.Y. 1999-2000 IS NOT IN ACCORDAN CE WITH THE PROVISIONS OF LAW AND ACCOUNTING PRINCIPLE. THE LD ASSESSING OFF ICER FURTHER HELD THAT IF THE EXPENDITURE DID NOT FORM PART OF CLOSING STO CK IN THE IMMEDIATELY PRECEDING YEAR, HOW CAN IT CAN FORM PART OF OPENING STOCK OF A.Y. 1999- 2000.. THE BASIC PRINCIPLE OF ACCOUNTANCY IS THAT O PENING STOCK SHOULD MATCH WITH THE CLOSING STOCK OF IMMEDIATELY PRECEDIN G YEAR. THE PROVISIONS OF SECTION 145A NOWHERE ENVISAGES THAT THIS BASIC PR INCIPLE SHOULD BE DEFEATED. THE LD CIT(A) HAS ALSO CONFIRMED THIS ISSU E BY STATING THAT BY ALLOWING THE DEDUCTION ON ACCOUNT OF EXCISE DUTY ELE MENT IN OPENING STOCK WHICH WAS THE CLOSING STOCK FOR A.Y. 1998-99 IN MY CO NSIDERED VIEW UNLESS 7 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT THE CLOSING STOCK FOR LAST YEAR IS ENHANCED NO SUCH SET OFF FOR EXCISE DUTY ELEMENT IN OPENING STOCK CAN BE GIVEN. THE A.O. WAS CORRECT IN NOT ALLOWING SUCH SET OFF OF RS. 5,33,354/- ON ACCOUNT O F EXCISE DUTY ELEMENT OF OPENING STOCK. WHEN ON PRINCIPLE IT IS NOT ALLOWE D THEN IT MAKES NO DIFFERENCE THAT WHETHER SUCH EXCISE DUTY ELEMENT IN OPENING STOCK WAS RS. 5,33,354/- OR RS. 21,53,505. THE PROFIT SHOWN FOR TH E A.Y. 1999-2000 IS THUS FOUND TO BE UNDER STATED BY RS. 5,33,354/- AND ACCORDINGLY ADDITION OF RS. 5,33,354/- IS MADE THE LD ASSESSING OFFICER HAD NOT ALLOWED THE ADJUSTMENT OF EXCISE DUTY FROM THE OPENING STOCK. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALLOWED THE APPEAL PARTLY BY OBSERVING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSES SMENT ORDER AND APPELLANTS WRITTEN SUBMISSIONS. ITAT SET ASIDE T HE ISSUE OF ADJUSTMENT OF EXCISE DUTY TO THE OPENING S TOCK ON THE BASIS OF DELHI HIGH COURT DECISION IN THE CASE OF MAHAVIR ALLUMINIUM LTD. TO THE A.O.. ASSESSING OFFICER WHILE COMPLETING SET ASIDE ASSESSMENT, DID NOT ALLOW ANY ADJUSTMENT TO THE OPENING STOCK AS ON 01/4/1998 ON THE GROUND THAT OPENING STOCK HAS TO THE SAME AS THE CLOSING STOCK AS ON 31/3/1998. LOGICALLY, I AGREE WITH THE 8 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT ASSESSING OFFICER THAT NO ADJUSTMENT CAN BE MADE TO THE OPENING STOCK UNLESS CLOSING STOCK OF THE PREVIOUS YEAR IS FIRST ADJUSTED BECAUSE OPENING STOCK IS A BROUGHT F ORWARD FIGURE WHICH CANNOT BE DIFFERENT THAN CARRIED FORWARD FIGURE OF EARLIER YEAR. THEREFORE, WHILE GIVING EFFECT TO AM ENDED PROVISIONS OF SECTION 145A, PURCHASES, SALES AND CL OSING STOCK HAS TO INCLUDE ANY DUTY PAYABLE BUT THE SAME CANNOT BE APPLIED TO OPENING STOCK WHICH IS NOTHING BUT CAR RIED FORWARD FROM LAST YEAR. THEREFORE VARIOUS COURTS HAVE HELD THAT EFFECT OF AMENDMENT BY INTRODUCING SECTION 145 A WILL BE IN THE FIRST YEAR SINCE OPENING STOCK WILL BE WITH OUT INCLUDING OF EXCISE DUTY. CONSIDERING ALL THESE FAC TS, ASSESSING OFFICER IS FULLY JUSTIFIED IN INTERPRETIN G THE PROVISIONS OF SECTION 145A. HOWEVER, ITAT DIRECTED THE A.O. TO EXAMINE THE APPELLANTS CLAIM IN THE LIGHT OF DECISION OF DELHI HIGH COURT IN THE CASE OF MAHAVIR ALLUMINIUM LTD. IN WHICH ADJU STMENT TO OPENING STOCK WAS ALLOWED. SINCE SET ASIDE ASSESSM ENT IS TO BE COMPLETED BY FOLLOWING THE DIRECTIONS OF A PPELLATE AUTHORITIES IRRESPECTIVE OF THE FACT WHETHER SUCH DI RECTION IS JUSTIFIED OR NOT, ASSESSING OFFICER WAS DUTY BOUND T O FOLLOW THE DIRECTION OF ITAT. ACCORDINGLY, THE CLAIM OF AD JUSTMENT TO OPENING STOCK MADE BY THE APPELLANT WAS ALLOWABLE IN VIEW OF THE DIRECTIONS OF ITAT AND THEREFORE THE ADDI TION OF RS. 5,33,354/- MADE BY THE A.O. IS NOT SUSTAINABLE. THE 9 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT O F ADJUSTMENT TO OPENING STOCK RS. 5,33,354/- IS DELET ED. AS REGARDS APPELLANTS CLAIM THAT ADJUSTMENT TO TH E OPENING STOCK WAS BY MISTAKE TAKEN AT LOWER FIGURE, T HERE IS NO MATERIAL OR BASIS TO ARRIVE AT THE REVISED CL AIM MADE BY THE APPELLANT. SINCE EXCISE DUTY IS NOT INCLUDED IN THE CLOSING STOCK OF LAST YEAR, IT IS NOT POSSIBLE TO V ERIFY AND ALLOW HIGHER CLAIM OF ADJUSTMENT. THIS WILL RESULT IN UNINTENDED BENEFIT TO THE APPELLANT AND ALSO RESULT IN REDUCTION IN RETURNED INCOME WHICH IS NOT PERMISSIBL E. THEREFORE THIS CLAIM IS REJECTED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS DRAWN OUR ATTENTION ON THE FINDINGS GIVEN BY THE HONBLE ITAT IN ASSESSEES OWN CASE ON DIRECTION GIVEN BY THE ITAT ON ADJUSTMENT MADE U/S 145A OF THE ACT. THE AR ARGUED THAT ACTUAL FIGUR E OF ADJUSTMENT WAS GIVEN BEFORE THE HONBLE ITAT AT THE TIME OF FIRST A PPEAL BEFORE THE LD CIT(A) AS WELL AS BEFORE THE HONBLE ITAT. EVEN DIRECT ION GIVEN BY THE HONBLE ITAT THAT THIS AMOUNT IS FURTHER TO BE REDUC ED RS. 16,20,151/- ON THE BASIS OF ADJUSTMENT AS PER SECTION 145A OF THE ACT. THE LD AR HAS FURTHER DRAWN OUR ATTENTION ON DECISION OF HON'BLE D ELHI HIGH COURT IN THE CASE OF CIT VS. MAHAVIR ALLUMINUM LTD. (2008) 297 ITR 77 AND PRAYED TO ALLOW THE ASSESSEES APPEAL. 10 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A) AND ARGUED THAT THE ASSESSEE WAS NOT IN POS ITION TO EXPLAIN ENHANCED ADJUSTMENT ON ACCOUNT OF EXCISE DUTY U/S 1 45A OF THE ACT, THEREFORE, THE LD CIT(A) HAS RIGHTLY REJECTED THE CL AIM OF THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. PRINCIPALLY THE L D CIT(A) HAD ACCEPTED THE ASSESSEES ADJUSTMENT OF EXCISE DUTY ON OPENING STO CK U/S 145A BUT FULL AMOUNT HAS NOT BEEN ALLOWED BY HIM ON THE GROUND THA T SINCE THE EXCISE DUTY IS NOT INCLUDED IN THE CLOSING STOCK OF LAST Y EAR. IT IS NOT POSSIBLE TO VERIFY AND ALLOW THE HIGHER CLAIM OF ADJUSTMENT. THE AR OF THE ASSESSEE FURNISHED ALL THE DETAILS BEFORE THE LOWER AUTHORITI ES AT THE TIME OF APPELLATE PROCEEDINGS AND AT THE TIME OF FIRST APPE AL MADE BEFORE THE ITAT THEREAFTER IN SET ASIDE PROCEEDING, THESE DETAILS WE RE GIVEN TO THE ASSESSING OFFICER. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. MAHAVIR ALLUMINUM (SUPRA) HAS HELD AS UNDER:- 15. WE ARE OF THE OPINION THAT IN THE PRESENT CAS E, THERE IS NO QUESTION OF ANY DOUBLE BENEFIT BEING GIVEN TO THE A SSESSEE. PARAGRAPH 23.13 OF THE GUIDANCE NOTE ITSELF MAKES IT CLEAR THAT WHENEVER ANY ADJUSTMENT IS MADE IN THE VALUATION OF INVENTORY, THIS WILL AFFECT BOTH THE OPENING AS WELL AS THE CL OSING STOCK. IT IS ALSO TO BE NOTED THAT IF ANY ADJUSTMENT IS REQUIRED TO BE MADE BY A STATUTE, (AS FOR EXAMPLE SECTION 145A OF THE A CT), EFFECT TO 11 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT THE SAME SHOULD BE GIVEN IRRESPECTIVE OF ANY CONSEQ UENCES ON THE COMPUTATION OF INCOME FOR TAX PURPOSES. SECTION 145A OF THE ACT BEGINS WITH A NON OBSTANTE CLAUSE, AND THER EFORE, TO GIVE EFFECT TO SECTION 145A OF THE ACT, IF THERE IS A CHANGE IN THE CLOSING STOCK AS ON MARCH 31, 1999, THERE MUST NECES SARILY BE A CORRESPONDING ADJUSTMENT MADE IN THE OPENING STOCK A S ON APRIL 1, 1998. THEREFORE, WE ALLOW THE ASSESSEES CLAIM OF ADJUSTMENT OF EXCISE DUTY U/S 145A ON OPENING STOCK AS ON 01/4/1998 AT RS. 16,20, 151/-. 7. NOW WE ARE GOING TO DECIDE ITA NO. 235/JP/2014. IN THIS CASE, ORIGINAL ASSESSMENT WAS COMPLETED ON 31/12/2007 AT R S. 1,20,43,889/-. THE LD ASSESSING OFFICER MADE ADDITION OF RS. 20,45, 362/- U/S 2(22)(E) OF THE ACT ON ACCOUNT OF DEEMED DIVIDEND. THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD CIT(A), WHO HAD SUSTAINED THE ADDITION VIDE ORDER DATED 3/11/2008. THEREAFTER THE ASSESSEE FILED APPEAL BEFO RE THE HONBLE ITAT. THE HONBLE ITAT IN C.O. NO. 31/JP/2009 VIDE ORDER DA TED 24/4/2009 HAD REMANDED THE MATTER TO THE A.O. TO EXAMINE THE CORR ECTNESS OF THE SUBMISSION OF THE ASSESSEE. IN COMPLIANCE OF THE OR DER OF THE HONBLE ITAT, THE LD ASSESSING OFFICER COMPLETED THE SET ASI DE PROCEEDING VIDE ORDER DATED 27/12/2010. THE LD ASSESSING OFFICER HEL D THAT THE ASSESSEE COMPANY HAD SHARE HOLDING OF 31% IN M/S CHROME INTE RNATIONAL COMPANY LTD., WHO IS NOT A COMPANY IN WHICH PUBLIC ARE SUBSTA NTIALLY INTEREST. M/S 12 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT CHROME INTERNATIONAL COMPANY LTD. POSSESSES ACCUMUL ATED PROFITS IN ITS BALANCE SHEET AND IT HAS MADE PAYMENT BY WAY OF LOAN S/ADVANCE TO ASSESSEE. THE ADVANCE MADE BY M/S CHROME INTERNATION AL COMPANY LTD. TO THE ASSESSEE COMPANY FALLS UNDER DEFINITION OF D EEMED DIVIDEND U/S 2(22)(E) OF THE ACT. THE MAXIMUM AMOUNT OUTSTANDING ANY TIME DURING THE YEAR, THE CLOSING BALANCE OF RS. 20,45,326/-. T HE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER AS UNDER:- A. M/S CHROME INTERNATIONAL LTD. IS AN ASSOCIATE C ONCERN OF THE ASSESSEE. WITH THIS COMPANY ASSESSEE HAS NUMEROUS BUSINESS TRANSACTION LIKE PAYMENT/RECEIPT OF RENT, PURCHASE AND SALE OF GOODS AS ALSO TEMPORARY FINANCIAL ACCOMMODATION. FOR THE SAKE OF CONVENIENCE THESE TRANSACTIONS ARE RECORDED IN SEPARATE ACCOUNTS ACCO RDING TO THE NATURE OF TRANSACTION. B. ALL THE ABOVE TRANSACTIONS ARE BUSINESS TRANSACT IONS OR THE TRANSACTIONS IN THE NATURE OF CURRENT ACCOUNT. IF A LL THE TRANSACTIONS IN DIFFERENT ACCOUNT ARE CONSOLIDATED THEN IT CAN BE NOTED THAT AS ON 01/4/2004, M/S CHROME INTERNATI ONAL COMPANY LTD. IS A DEBTOR OF ASSESSEE FOR RS. 11,00, 951/- WHEREAS AS ON 31/3/2005, IT IS A CREDITOR FOR RS. 20 ,58,481/-. FROM A LOOK TO THIS ACCOUNT, IT CAN BE NOTED THAT T HERE ARE NUMEROUS BUSINESS TRANSACTIONS AND PAYMENT/RECEIPT OF FUNDS THERE AGAINST OR OTHERWISE. 13 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT C. ALL THESE TRANSACTIONS WHEN SEEN IN TOTALITY LEAD TO ONLY CONCLUSION THAT PROVE THESE TRANSACTIONS ARE NOT IN THE NATURE OF LOANS OR ADVANCES BUT IN THE NATURE OF CURRENT/R UNNING ACCOUNT. ONLY BECAUSE ASSESSEE FOR CONVENIENCE OF ACCOUNTING HAS KEPT SEPARATE ACCOUNT FOR SEPARATE TRANSACTIONS INCLUDING THE TRANSACTIONS FOR SHORT T ERM OBTAINING/PROVIDING THE FUNDS FOR THE BUSINESS NEED S INTER SE, SUCH TRANSACTIONS CANNOT BE CONSIDERED TO BE TRANSA CTION OF LOANS OR ADVANCES AS ENVISAGED U/S 2 (22)(E). THE LD ASSESSING OFFICER HELD THAT THE ASSESSEE HAD FAILED TO SUBSTANTIATE HIS CLAIM THAT THE ASSESSEE WAS COVERED UNDER THE PR OVISIONS OF SECTION 2(22)(E) OF THE ACT. FURTHER THE CONTENTION THAT TH E ASSESSEE COMPANY IS A PUBLIC LIMITED COMPANY AND ITS SHARES WERE LISTED ON BOMBAY STOCK EXCHANGE WAS OF NO RELEVANCE BECAUSE ASSESSEE COMPAN Y IS SHAREHOLDER AND NOT THE COMPANY WAS HAS GIVEN LOANS OR ADVANCES. THE CONDITION OF LISTED COMPANY SHOULD HAVE BEEN FULFILLED BY THE CO MPANY WHO HAD GIVEN LOANS AND ADVANCES TO ITS SHAREHOLDER. IN THIS CASE M/S CHROME INTERNATIONAL COMPANY LTD. IS THE COMPANY WHO HAS GI VEN LOAN AND THAT IS NOT A COMPANY IN WHICH PUBLIC ARE SUBSTANTIALLY INTE RESTED. THEREFORE, THE LOANS/ADVANCES GIVEN BY M/S CHROME INTERNATIONAL CO MPANY LTD. TO THE ASSESSEE COMPANY ARE HELD AS DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE COMPANY. THE ASSESSEE COMPANY HAD ENJOYED T HE LOANS OR 14 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT ADVANCES DURING THE ENTIRE YEAR WHICH CAN BE SEEN FR OM THE COPY OF ACCOUNT OF THE ASSESSEE COMPANY IN M/S CHROME INTER NATIONAL COMPANY LTD. THE ASSESSEES REPLY THAT THESE TRANSACTIONS AR E BUSINESS TRANSACTIONS, ARE NOTHING ELSE BUT A COLORFUL DEVICE TO MISGUIDE. THE ASSESSEE COMPANY HAD TAKEN LOAN/ADVANCES DURING THE YEAR AND RETURNE D BACK, THEREFORE, CLOSING BALANCE/MAXIMUM BALANCE OUTSTANDING AT RS. 20,45,362/- DURING THE YEAR HAD BEEN TAKEN AS AMOUNT OF DEEMED DIVIDEN D BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F 171 ITR 393. 8. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CO NFIRMED THE ADDITION BY OBSERVING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSES SMENT ORDER AND APPELLANT'S WRITTEN SUBMISSION. ASSESSING OFFICE R TREATED RS. 20,58,481/- BEING CREDIT BALANCE AS ON 31-3- 2005 ON ACCOUNT OF CHROME INTERNATIONAL COMPANY LTD AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). THE ADDITION MADE BY THE AO WAS SUSTAINED BY CIT(A). ITAT SET ASIDE THE ADDITION TO THE FILE OF AO FOR CONSIDERING APPE LLANT'S SUBMISSIONS. ASSESSING OFFICER AGAIN MADE THE ADDIT ION BY REFERRING THE RELEVANT PROVISIONS OF THE ACT AND AP PELLANT'S SUBMISSIONS. LT IS NOT IN DISPUTE THAT APPELLANT IS A SHAREHOLDER AND WAS HAVING SUBSTANTIAL SHAREHOLDING IN 15 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT CHROME INTERNATIONAL COMPANY LTD. THE SAID COMPANY WA S NOT THE COMPANY IN WHICH PUBLIC ARE SUBSTANTIALLY INTERESTED. THEREFORE PROVISIONS OF SECTION 2 (22)( E) ARE ATTRACTED IN THE CASE OF APPELLANT. THE ONLY DISPUTE BETWEEN AO AND APPELLANT IS THAT TRANSACTIONS BETWEEN APPELLANT AND CHRORNE INTERNATI ONAL WERE TREATED AS LOAN AND ADVANCES BY THE AO BUT APPE LLANT CLAIMS THE SAME TO BE ON ACCOUNT OF CURRENT ACCOUNT OR BUSINESS TRANSACTIONS. THERE ARE MULTIPLE FINANCIAL TRANSACTIONS BETWEEN THE APPELLANT AND THE COMPANY. HOWEVER IN THE BOOKS OF CHROME INTERNATIONAL COMPANY LTD, THERE ARE SEPARATE ACCOUNTS OF THE APPELLANT I N RESPECT OF BUSINESS TRANSACTIONS AND IN RESPECT OF FINANCIA L TRANSACTIONS. THE TITLE OF THE ACCOUNT WITH FINANCIAL TRANSACTIONS IS 'KG PETRO CHEM LTD (SHORT TERM LOAN )'. FROM THE HEADING OF THE ACCOUNT ITSELF, IT IS CLEAR THAT APPELLANT'S ACCOUNT IS IN THE NATURE OF SHORT TERM LOAN AND NOT BUSINESS TRANSACTIONS. APPELLANT MAY HAVE BUSIN ESS DEALINGS WITH THE LENDING COMPANY BUT THAT DOES NOT MEAN THAT APPELLANT COULD NOT HAVE LOANS AND ADVANCES WIT H THE SAID COMPANY. THE DECISIONS RELIED UPON BY THE APPEL LANT ARE RELATING TO BUSINESS ADVANCES OR WHERE CURRENT A CCOUNT IS MAINTAINED BETWEEN TWO ENTITIES. LN THE CASE OF APPELLANT, THE TITLE OF ACCOUNT ITSELF ON PAGE 27 A ND 28 OF PAPER BOOK CLARIFIES THE NATURE OF TRANSACTIONS. THE SE ARE 16 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT SHORT-TERM LOAN TRANSACTIONS AS ACCEPTED BY THE LEN DING COMPANY. THE BOOKS OF ACCOUNTS OF THE CHROME INTERNATIONAL COMPANY LTD REFLECTED FINANCIAL TRANS ACTIONS WITH THE APPELLANT COMPANY AS SHORT TERM LOAN. THEREF ORE APPELLANT CANNOT CLAIM THAT THESE ARE NOT LOAN TRAN SACTIONS. LN VIEW OF THE CLEAR TREATMENT GIVEN BY THE LENDER T O THESE TRANSACTIONS, THERE IS NO QUESTION OF TREATING THE TRANSACTIONS DIFFERENTLY FOR THE PURPOSE OF DECIDIN G WHETHER THESE ARE LOAN TRANSACTIONS OR NOT. CONSIDERING THE DETAILED ANALYSIS GIVEN BY THE AO AND TRANSACTIONS TREATED A S SHORT TERM LOAN IN THE BOOKS OF ACCOUNTS, THE PROVISIONS OF SECTION (2)(22)(E) IS CLEARLY ATTRACTED. ACCORDINGL Y, THE ADDITION MADE BY THE AO ON ACCOUNT OF DEEMED DIVIDE ND IS CONFIRMED. 9. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFORE THE LD CIT (A). HE FURTHER SUBMITTED THAT AS PER SECTION 2(22)(E) OF THE ACT, THE DEEMING PROVISION IS APPLICABLE ONLY IN CASE OF, THERE SHOULD BE A PAYME NT, PAYMENT SHOULD BE OF A SUM AND SUCH PAYMENT SHOULD BE BY WAY OF LOAN O R ADVANCE. UNLESS AND UNTIL ALL THE ABOVE CONDITIONS ARE SATISFIED, D EEMING FICTION WOULD NOT BE ATTRACTED. IN ASSESSEES CASE, THE NATURE OF BUS INESS OF BOTH THE COMPANIES IS MANUFACTURING OF HD-PP/PPE BAGS. IN TH E COURSE OF BUSINESS, BOTH THE COMPANIES HAVE ENTERED INTO A SERIES OF TR ADE TRANSACTIONS 17 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT RELATING TO GOODS, JOB CHARGES, RENT, SHARING OF WAT ER ELECTRICITY CHARGES, MAKING PAYMENT AND RECEIVING PAYMENT. HE FURTHER AR GUED THAT THESE TRANSACTIONS RELATING TO GOODS, JOB WORK CHARGES, CR EDIT AND DEBIT, RENT FOR WHICH PAYMENT MADE AND RECEIVED BY THE ASSESSEE. THE RE IS ALSO ENTRY OF INTEREST IN THIS ACCOUNT. IT IS A MUTUAL, OPEN, CUR RENT, RUNNING AND TRADE ACCOUNT RUNNING INTO NUMBER OF PAGES CONTAINING ARO UND NUMBER OF ENTRIES. THE ACCOUNT IS CONTINUOUSLY MOVING. ON SOME DAY THE BALANCE IS IN CREDIT AND ON SOME OTHER DAY THE BALANCE IS IN D EBIT. THESE BUSINESS TRANSACTIONS CANNOT PARTAKE THE CHARACTER OF A PAYM ENT BY WAY OF LOANS OR ADVANCES. THE DEEMING PROVISION OF LAW CONTAINED IN T HIS SECTION BEING VERY MUCH CONFINED AND LIMITED TO THE PARTICULAR PU RPOSE FOR WHICH IT HAS BEEN ENACTED CANNOT ASSUME ANY ROLE BEYOND THE SAID RESTRICTED AND CONFINED LIMIT AND IT CAN NEVER INTERFERE IN THE NO RMAL BUSINESS OF THE COMPANIES CARRIED OUT IN THE ORDINARY COURSE OF BUS INESS. THE LD ASSESSING OFFICER TREATED RS. 20,45,426/- AS SHORT TERM LOAN BUT IT IS A TEMPORARY ACCOMMODATION TO MEET THE BUSINESS REQUIREMENT OF T HE FUNDS OF EACH OTHER AND THEREFORE THE SAME CANNOT BE CONSIDERED A S PAYMENT BY WAY OF LOANS OR ADVANCES. IN CONSOLIDATED ACCOUNT THERE IS AN OPENING DEBIT BALANCE OF RS. 11,00,950/- AND CLOSING DEBIT BALANC E OF RS. 20,58,481/- WITH THE ASSESSEE IF ALL THE TRANSACTIONS ARE CONSOL IDATED TOGETHER. HE 18 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT FURTHER RELIED ON THE DECISION IN THE CASE OF NH SE CURITIES LTD. VS. DCIT 11 SOT 302 (TRIB) (MUM) (2007) WHEREIN IT HAS BEEN HELD T HAT PAYMENT MADE BY THE COMPANY TO THIS SHAREHOLDER IS PROVED B Y THE CHARACTERISTIC AS OTHER THAN LOAN/ADVANCE, IN OTHER WORDS, THE PAYMENT IS FOR THE PURPOSE OF REPAYMENT OF LOAN OR SUCH OTHER EXISTING LIABILI TY, THE QUESTION OF SECTION 2(22)(E) APPLYING, DOES NOT ARISE. THE NATUR E OF TRANSACTION IS A DOMINANT FACTOR TO DECIDE THE CASE WHICH DEPENDS ON CASE TO CASE AND OF THEIR FACTS. HE FURTHER RELIED ON THE DECISION IN T HE CASE OF MTAR TECHNOLOGIES (P) LTD. VS. ACIT 39 SOT 465 (TRIB) (HYD) (2010) WHEREIN IT HAS BEEN HELD THAT LAW DOES NOT PROHIBIT BUSINESS TR ANSACTION BETWEEN THE RELATED CONCERNED AND THEREFORE PAYMENTS MADE IN TH E ORDINARY COURSE OF BUSINESS CANNOT BE TREATED AS LOAN AND ADVANCES. HE FURTHER RELIED ON THE FOLLOWING CASES. 1. CIT VS. AMBASSADOR TRAVELS (P) LTD. 318 ITR 376 (D EL)(HC). 2. CIT VS. IDHAYAM PUBLICATION LTD. 285 ITR 221 (MAD )(HC). 3. MUTHOOT M. GEORGE BROTHERS VS. ACIT 47 TTJ 434 (CO CHIN) (TRIB). 4. DCIT VS LAKRA BROTHERS 106 TTJ 250 (CHAND.)(TRIB). THEREFORE, HE PRAYED TO DELETE THE ADDITION CONFIRME D BY THE LD CIT(A). 10. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORT ED THE ORDER OF THE LD CIT(A). 19 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE COORDINATE BENCH HAD SET ASIDE THIS ISSUE TO THE ASSESSING OFFICER TO VERIFY THE N ATURE OF TRANSACTION BETWEEN THE ASSESSEE COMPANY AND M/S CHROME INTERNAT IONAL CO. LTD. THE LD ASSESSING OFFICER HAD NOT GIVEN ANY FINDING O N TRANSACTION BUT SUMMARILY REJECTED THE SUBMISSION MADE BY THE ASSES SEE. THE LD CIT(A) ALSO CONSIDERED THE TITLE OF THE ACCOUNT FOR DECIDI NG THE ISSUE OF DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. THE COPY OF ACCOUN T FILED ITSELF SHOWS THAT THE ASSESSEE HAS NUMBER OF TRANSACTIONS RELATE D TO GOODS PURCHASED AND SALE, JOB WORK CHARGES, PAID AND RECEIVED RENT A ND INTEREST. IN OPENING, THERE WAS A DEBIT BALANCE IN THE BOOKS OF A SSESSEE AND ON CLOSING IT WAS A CREDIT BALANCE. THE BALANCE AFTER EV ERY TRANSACTION CHANGED THE POSITION SOME TIME IT BECOMES CREDIT AN D SOME TIME DEBIT. THEREFORE, WE HOLD THAT TRANSACTIONS MADE BY M/S CHRO ME INTERNATIONAL CO. LTD. WITH ASSESSEE ARE BUSINESS TRANSACTIONS DUR ING THE ORDINARY COURSE OF BUSINESS, WHICH CANNOT BE TREATED AS DEEMED DIVID END U/S 2(22)(E) OF THE ACT. THE CASE LAWS REFERRED BY THE ASSESSEE ARE S QUARELY APPLICABLE. THEREFORE, WE REVERSE THE ORDER OF THE LD CIT(A) AND A LLOW THE ASSESSEES APPEAL. 20 ITA NO. 234 & 235/JP/2014 KG PETROCHEM LTD. VS. ACIT 12. IN THE RESULT, BOTH THE ASSESSEES APPEAL ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 TH DECEMBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S K.G. PETROCHEM LTD., JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CIRCLE-4, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.234 & 235/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR