The ITO, Ward-1(2), Ahmedabad V. Apco Motors(India) Pvt.Ltd., Ahmedabad

ITA 2449/AHD/2011

• Counselvise Citation: 244920514 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 28-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Bonafide belief; Question of law; Onus to prove; Bonafide mistake
• Section: 143(3); 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .. , , BEFORE SHRI BEFORE SHRI G.D. AGARWAL,VICE PRESIDEN T (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2449/AHD/2011 ( / ASSESSMENT YEAR : 2005-06) THE ITO WARD-1(2) AHMEDABAD / VS. APCO MOTOR (INDIA) PVT.LTD. BLOCK NO.451, NR.KENAL SARKHEJ BAVLA HIGHWAY SANATHAL, AHMEDABAD ! '# ./ ./ PAN/GIR NO. : AADCA 0074 A ( !% / APPELLANT ) .. ( &'!% / RESPONDENT ) !%(' / APPELLANT BY : SHRI M.K. SINGH, SR.DR &'!%)(' / RESPONDENT BY : -NONE- * +) ,# / DATE OF HEARING 17/03/2015 -./0 ) ,# / DATE OF PRONOUNCEMENT 19/03/2015 '/ O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-VI, AHMEDABA D (CIT(A) IN SHORT) DATED 01/07/2011 PERTAINING TO ASSESSMENT Y EAR (AY) 2005-06. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 2 - 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION IN RESPECT OF UNDISCLOSED STOCK OF RS.32,4 2,815/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER TO THE EXTENT MENTIONED ABOVE, SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. THE A PPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GRO UND WHICH MAY BE NECESSARY. 2. THE ONLY EFFECTIVE GROUND IS AGAINST THE DELETIO N OF ADDITION IN RESPECT OF UNDISCLOSED STOCK OF RS.32,42,815/-. AT THE TIME OF HEARING, NO ONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE OF HEARING. THEREFORE, THE APPEAL WAS TAKEN UP FOR HE ARING IN THE ABSENCE OF ASSESSEE. 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS REOPENED FOR ASSESSMENT FOR AY 2005-06 AND THE ASSESSMENT U/ S.143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 07/12/2010. WHIL E FRAMING THE ASSESSMENT, THE ASSESSING OFFICER (AO IN SHORT) MAD E ADDITION ON ACCOUNT OF THE DIFFERENCE IN VALUE OF CLOSING STOCK AS SUBMITTED BEFORE THE REVENUE AND BEFORE NUTAN NAGARIK SAHAKARI BANK LTD. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 3 - LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, PARTLY ALLOWED THE APPEAL. 4. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO. 5. WE HAVE HEARD THE LD.SR.DR, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. WE FIND THAT THE LD.CIT(A) HAS CONSIDERED THE WRITTEN SUBMI SSIONS OF THE ASSESSEE IN PARA-4.2 OF HIS ORDER AS UNDER:- 4.2 THE APPELLANT HAS SUBMITTED IN ITS WRITTEN SUBMISS ION, WHICH IS AS UNDER: 'THAT NOW COMING TO THE REASONS FOR SUBMITTING THE STOCK STATEMENT TO THE BANKERS SHOWING VALUE OF CLOSING STOCK AS ON 31/03/ 2005 AT RS.61,98,848/-, IF IS SUBMITTED THAT THE SAME HAS BEEN ON ACCOUNT OF G ENUINE BONAFIDE MISTAKE ON PART OF THE ACCOUNTANT OF THE ASSESSEE COMPANY W HO HAS STATED SUCH HIGHER VALUE OF CLOSING STOCK TO THE BANKERS WITHOUT VERIF ICATION OF QUANTITATIVE RECORDS MAINTAINED BY THE COMPANY AND UNDER A BONAF IDE BELIEF THAT IF BELONGS TO THE COMPANY DUE TO FOLLOWING REASONS: (I) AT THE OUTSET, IF IS SUBMITTED THAT THE ASSESSEE CO MPANY WAS HAVING CASH CREDIT FACILITIES OF RS. 35 LAKHS FROM NUFAN NARGIK SAHKARI BANK LTD AGAINST THE HYPOTHECATION OF STOCK IN TRADE DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE COMPANY HAS TO SUBMIT T HE STOCK STATEMENT TO THE BANKERS AS PER THE TERMS AND CONDITIONS OF THE SAID LOAN. (II) THAT FILL A.Y.2004-05, THE ASSESSEE COMPANY WAS PUR CHASING THE SPARE PARTS DIRECTLY FROM THE PRINCIPAL COMPANY EICHER MO TORS LTD AND SELLING THE SAME TO THE VARIOUS PARTIES AS A DISTRIBUTOR. H OWEVER FROM A.Y.2005- 06 I.E. YEAR UNDER ASSESSMENT ONWARDS THE PRINCIPAL COMPANY EICHER MOTORS LTD. CHANGED THE POLICY DECISION AND DECIDED TO APPOINT A CONSIGNMENT AGENT INSTEAD OF A DISTRIBUTOR WHO SELL S THE GOODS TO THE VARIOUS PARTIES INCLUDING THE ASSESSEE COMPANY. ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 4 - (III) THE PRINCIPAL COMPANY EICHER MOTORS LTD. THEREFORE REQUESTED THE ASSESSEE COMPANY'S GROUP TO FORM A NEW ENTITY WHICH SHOULD WORK AS ITS CONSIGNMENT AGENT. THE GROUP THEREFORE ESTABLISHED A NEW ENTITY NAMELY 'AUTO AGENCY', A PARTNERSHIP FIRM W.E.F. 14/05/2004 TO ACT AS CONSIGNMENT AGENT OF THE PRINCIPAL COMPANY EICHER MOTORS LTD. (IV) THAT ON FORMATION OF THE CONSIGNMENT AGENT, THE PRINCIPAL COMPANY EICHER MOTORS LTD. STARTED SUPPLYING THE SPARE PART S TO 'AUTO AGENCY' INSTEAD OF THE ASSESSEE COMPANY AND NOW THE ASSESSE E COMPANY HAS TO PURCHASE THE SPARE PARTS FROM AUTO AGENCY AS PER IT S REQUIREMENT. (V) THAT ON THE FORMATION OF CONSIGNMENT AGENT, TH E POSITION OF STOCK CHANGED AND MAJOR STOCK WAS NOW LYING WITH AUTO AGE NCY INSTEAD OF THE ASSESSEE COMPANY. (VI) IT MAY BE NOTED THAT THE ACCOUNTANT HOWEVER UNDER A BONAFIDE IMPRESSION AND BELIEF ON THE BASIS OF PREVIOUS POSITION CONSID ERED THE STOCK OF 'AUTO AGENCY' AS STOCK OF THE ASSESSEE COMPANY WHILE SUBM ITTING THE STOCK STATEMENT OF THE COMPANY AS HE WAS OF THE OPINION T HAT THE SAID STOCK LIKE IN PREVIOUS YEARS IS ALSO THAT OF THE ASSESSEE COMP ANY. HE ACCORDINGLY UNDER SUCH BONAFIDE BELIEF SUBMITTED A STOCK STATEM ENT OF RS.61,98,448/- TO THE BANK. HOWEVER, WHILE DOING SO, AS STATED HER EINABOVE, HE MISTAKENLY OVERLOOKED THE FACT THAT 'AUTO AGENCY' H AVING CAME INTO EXISTENCE DURING THE YEAR ITSELF WAS NOW A SEPARATE ENTITY. (VII) IT IS SUBMITTED THAT THE VALUE OF CLOSING STOCK OF AUTO AGENCY AS ON 31/03/2005 IS AT RS.77,93,370/-. THEREFORE IF THE V ALUE OF CLOSING STOCK OF BOTH THE ENTITY IS TAKEN TOGETHER THE SAME COMES TO RS.1,07,49,003/- WHICH IS FAR IN EXCESS OF VALUE OF CLOSING STOCK SUBMITTE D TO THE BANKERS. IT IS FURTHER SUBMITTED THAT AUTO AGENCY IS NOT ENJOYING ANY CREDIT FACILITIES FROM THE BANKERS. REFER COPY BALANCE SHEET OF AUTO AGENCY REFER EXHIBIT-8. PAGE NO. 135 TO 143 OF THE PAPER BOOK FU RNISHED. CONSIDERING THE AFORESAID FACTS, NO ADVERSE INFEREN CE IS WARRANTED ON THE BASIS OF STATEMENT OF CLOSING STOCK FURNISHED TO BANKERS AS THE SAME WAS FURNISHED WITHOUT VERIFICATION OF THE RECORDS AND UNDER THE BONAFIDE BELIEF AND/OR MISTAKE ON THE PART OF THE ACCOUNTANT AS STATED HEREIN ABOVE. ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 5 - 2. THAT APART, YOUR HONOUR WILL APPRECIATE O N PERUSAL OF THE STOCK STATEMENT FURNISHED TO THE BANKERS THAT THE SAME IS MERELY ON LETTER HEAD OF THE COMPANY AND SHOWS ONLY THE VALUE OF STOCK ON AGGREGATE / ESTIMA TE BASIS WITHOUT HAVING ANY DESCRIPTION OF THE ITEMS OR QUANTITY. ACCORDINGLY, THE STATEMENT FURNISHED TO THE BANK IS MERELY AN ADHOC STATEMENT AND THUS CANNOT BE CHA RACTERIZED AS DEPICTING THE ACTUAL STOCK STATEMENT, THE SAME HAVING BEEN GIVEN PURELY ON ESTIMATE BASIS JUST IN ORDER TO COMPLY WITH REQUIREMENT OF SUBMITTING THE STOCK STATEMENT TO THE BANKERS AS PER THE TERMS AND CONDITIONS OF THE LOAN. UNDER THE CIRCUMSTANCES, THE ADDITION BASED ON SUCH STATEMENT IS WHOLLY UNWARRANTED AND BAD IN LAW IN ABSENCE OF ANY MATERIAL BROUGHT ON RECORD TO ESTABLISH THAT THE APPELLANT C OMPANY HAD IN FACT ACTUAL STOCK TO THE EXTENT OF RS.61,98,448/-. 3. IT IS CONTENDED THAT THE ASSESSEE COMPAN Y IS MAINTAINING DAY-TO-DAY QUANTITY WISE RECORDS AND NO DEFECTS HAVE BEEN FOUND EITHER IN THE BOOKS OF ACCOUNTS OR THE ACCOUNTING SYSTEM FOLLOWED BY THE ASSESSEE COMPANY DURING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE ACT BY TH E THEN ASSESSING OFFICER FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE COMPANY DURI NG THE COURSE OF REGULAR ASSESSMENT HAS ALSO FURNISHED THE MONTH WISE DETAIL S OF PURCHASE & SALES IN TERMS OF QUANTITY AS WELL AS IN VALUE AS PER PAGE NO. 2 OF E XHIBIT -2 OF LETTER DATED 05/12/ 2007. NOT ONLY THAT THE ASSESSEE COMPANY HAS ALSO SUBMITTED THE MONTH WISE DETAILS OF PURCHASE AND SALES OF SOME OF THE HIGH V ALUE ITEMS BOTH IN TERMS OF QUANTITY AND VALUE VIDE PAGE NO. 12 TO 16 OF EXHIBIT -3 OF L ETTER DATED 07/12/2007. NO DISCREPANCIES HAVE BEEN BROUGHT ON RECORD BY THE TH EN ASSESSING OFFICER IN RESPECT OF THE QUANTITATIVE DETAILS FURNISHED BY THE ASSESSEE COMPANY DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. 4. IT MAY NOT BE OUT OF PLACE TO MENTION HER E THAT THERE IS NOT AN IOTA OF EVIDENCE TO SUGGEST THAT THERE IS A CASE OF PURCHASE OR SALE OUTSIDE THE BOOKS OF ACCOUNT RESULTING IN SUCH EXCESS STOCK. THUS, NO CREDENCE I S REQUIRED TO BE GIVEN TO THE STOCK STATEMENT FURNISHED TO THE BANK AND THE ACTUAL STOC K AS PER THE BOOKS OF ACCOUNT REQUIRED TO BE ADOPTED AND TREATED AS CORRECT. 5. THAT IN THE PRESENT CASE OF THE ASSESSEE COMPANY THE ISSUE IS RESTRICTED TO THE VALUE OF STOCK. NOW IT IS A MATTER OF COMMON PERCEP TION PREVAILING IN THE BUSINESS COMMUNITY AND AS ALSO RATIFIED BY VARIOUS COURTS OF LAW THAT SUCH INFLATED VALUE OF STOCK FURNISHED TO THE BANK IS ONLY WITH AN INTENTI ON TO OBTAIN HIGHER LOANS. 6. IT IS CONTENDED THAT THE STOCK POSITION G IVEN TO THE BANK WAS ONLY FOR LIMITED PURPOSE OF MEETING WITH THE TERMS OF THE BANK AND T O AVOID PENAL INTEREST IN CASE OF SHORTFALL IN STOCK POSITION. ACCORDINGLY, THE STOCK POSITION WAS GIVEN ON APPROXIMATE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 6 - AND ADHOC BASIS EVERY MONTH SINCE IT IS IMPOSSIBLE AND IMPRACTICABLE TO PHYSICALLY CHECK AND VERIFY THE STOCK IN THE MIDDLE OF THE YEA R. 7. IT IS FURTHER CONTENDED THAT THE STOCK WA S MERELY HYPOTHECATED TO THE BANK, THE POSSESSION OF WHICH REMAINED WITH THE ASSESSEE AND SINCE THERE IS USUALLY NO PHYSICAL VERIFICATION OF THE STOCK BY THE BANK, NO CREDENCE CAN BE GIVEN TO THE STOCK DECLARED TO THE BANKS. THE SUBMISSION OF STOCK STATEMENT IS NORMALLY A MERE FORMALITY AND THE COMMON BUSINESS PRACTICE OF REPORTING HIGHER FIGURE S OF STOCK ON HAND OR ON ESTIMATION BASIS THAN WHAT IS ACTUALLY AVAILABLE IS ONLY IN ORDER TO SHOW THAT THE BANK IS SAFE AND SECURE AND ITS INTEREST IS NOT IN JEOPA RDY. SUCH PRACTICE IS ALSO NORMALLY KNOWN TO THE BANKS AND SO FAR AS THE ASSESSEE IS A REGULAR CUSTOMER, LITTLE IMPORTANCE IS GIVEN BY THE BANKS TO THE PRECISENESS OF THE STO CK ON HAND. IT MAY ALSO BE NOTED THAT THERE IS A REAL DIFFERENC E BETWEEN THE PLEDGING AND HYPOTHECATION OF GOODS BECAUSE IN THE CASE OF PLEDG ING, THE GOODS REMAIN UNDER THE LOCK AND KEY OF THE BANK AUTHORITIES AND ARE THEREF ORE, LIABLE TO BE PHYSICALLY CHECKED AND EXAMINED. BUT IN THE CASE OF HYPOTHECATION SUCH GOODS REMAIN IN THE CUSTODY OF THE ASSESSEE AND THE PHYSICAL VERIFICATION OF THE G OODS HYPOTHECATED TO THE BANK IS NORMALLY NOT DONE. THE ABOVE FACT IS TO BRING HOME THE POINT THAT MERE LY BECAUSE THE STOCK STATEMENT SUBMITTED TO THE BANK SHOWS MORE STOCK THAN THE ACT UAL AND CORRECT STOCK SHOWN IN THE BOOKS OF ACCOUNT, IT CANNOT BE HELD THAT THE DI FFERENCE IS UNACCOUNTED STOCK. 12. THE ASSESSEE COMPANY WOULD LIKE TO DRAW YO U HONOUR'S ATTENTION TO AN IMPORTANT FACT THAT DURING THE PREVIOUS YEAR AND TH E SUBSEQUENT YEARS I.E. A.Y.2004- 05 AND A.Y.2006-07, THE STOCK STATEMENT SUBMITTED T O THE BANK REFLECTS LESS STOCK THEN THE STOCK SHOWN IN THE BOOKS OF ACCOUNTS. DOES THIS MEAN THAT THE STOCK SUBMITTED TO THE BANK IS THE CORRECT STOCK? WILL THE DEPARTMENT ACCEPT SUCH POSITION AND REDUCE THE INCOME OF THE COMPANY FOR SUCH YEARS. A YET ANOTHER QUESTION ARISES AS TO WHETHER THE A.O . WILL ADOPT THE FIGURE OF CLOSING STOCK TAKEN BY HIM DURING THE YEAR AS OPENING STOCK FOR SUBSEQUENT YEAR SINCE IF THIS FIGURE IS CONSIDERED ALONG WITH THE FIGURE OF CLOSI NG STOCK FIGURE SUBMITTED TO THE BANK IN SUBSEQUENT YEAR WHICH IS LESS THAN THE BOOK STOCK, THEN IT WOULD RESULT IN LOSS IN SUCH SUBSEQUENT YEAR. WILL THE DEPARTMENT WORK O UT SUCH LOSS AND ALLOW THE SAME AS AGAINST PROFIT SHOWN AS PER BOOKS? THIS IS TO BRING HOME THE POINT THAT THE STOCK STAT EMENTS FURNISHED TO THE BANK ARE MERELY A FORMALITY TO MEET WITH THE TERMS OF THE BA NK AS STATED HEREINABOVE AND ARE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 7 - BASED ON ESTIMATES RATHER THAN THE ACTUAL POSITION. IT IS TO FURTHER CONTEND THAT IF YOUR HONOUR INTENDS TO RELY ON THE STOCK STATEMENTS FURN ISHED TO THE BANK THEN AS STATED HEREINABOVE THE SAME CRITERIA REQUIRES TO BE ADOPTE D FOR THE PREVIOUS AS WELL AS SUBSEQUENT YEARS WHICH WOULD RESULT IN REDUCTION IN TOTAL INCOME OF THE COMPANY FOR SUCH YEARS. 13. IN SUPPORT OF THE ABOVE CONTENTIONS, THE F OLLOWING DECISIONS OF VARIOUS COURTS OF LAW INCLUDING THE JURISDICTIONAL HIGH COURT REQU IRES TO BE TAKEN DUE COGNIZANCE OF:- CIT V. ARROW EXIM (P.) LTD. (2010) 230 CTR 293 (GUJ .) WHERE ADDITION WAS MADE ON ACCOUNT OF EXCESS STOCK AS THERE WAS DISCREPANCY BETWEEN STOCK AS PER BOOKS OF ACCOUNT AND THAT SHOW N IN THE STATEMENT GIVEN IN BANK ALLEGEDLY TO OBTAIN HIGHER CREDIT FACILITIES BUT TH E TRIBUNAL DELETED THE ADDITION: HELD THAT, THE TRIBUNAL HAD ACCEPTED THE EXPLANATIO N GIVEN BY THE ASSESSEE AND IN THAT CONTEXT HAD STATED THAT WHEN THE BOOKS OF ACCO UNT OR THE ACCOUNTING SYSTEM HAD BEEN FOUND TO BE GENUINE SUPPORTED BY VOUCHERS, ETC . THE ADDITION WAS NOT JUSTIFIED. IT WAS REQUIRED TO BE MENTIONED THAT THE STOCKS WERE H YPOTHECATED AND NOT PLEDGED, WHICH WAS EXPLAINED BY THE ASSESSEE AND, THEREFORE, IN ORDER TO AVAIL HIGHER CREDIT FACILITIES THE STATEMENT WAS GIVEN, BUT THE STOCK W AS WITH THE ASSESSEE. THUS, THE DELETION OF ADDITION WAS JUSTIFIED. CIT V. VEERDIO ROLLERS (P.) LTD. (2010) 323 ITR 34 1 (GUI.) ADDITION WAS MADE ON ACCOUNT OF DIFFERENCE IN THE C LOSING STOCK FURNISHED BEFORE THE BANK AUTHORITIES FOR AVAILING OF CREDIT FACILITY AS AGAINST THE SAME DISCLOSED IN THE BOOKS OF ACCOUNT FURNISHED BEFORE THE INCOME-TAX AU THORITIES. IT WAS FOUND THAT THE ASSESSEE HAD SUBMITTED THE BANK STATEMENT WITH INFL ATED PRICE OF THE STOCK, WHILE THERE WAS NO DIFFERENCE IN QUANTITY OF STOCK. HELD THAT, THE ASSESSING OFFICER HAD FOUND THAT THE ASSESSEE HAD SUBMITTED THE BANK STATEMENT WITH INFLATED PRICE OF THE STOCK WHILE TH ERE WAS NO DIFFERENCE IN QUANTITY OF THE STOCK. AS HELD IN ASHOK KUMAR V. ITO [2006] 201 CTR (J&K) 178, ADDITION COULD NOT BE MADE ON THE BASIS OF DIFFERENCE BETWEEN CLOS ING STOCK DECLARED IN THE TRADING ACCOUNT AND THE STOCK SHOWN IN THE STATEMENT SUBMIT TED BY THE ASSESSEE TO THE BANK AS THE STOCK POSITION SHOWN TO THE BANK WAS ON ESTI MATE BASIS AND INFLATED VALUE WAS SHOWN TO AVAIL OF MORE CREDIT FROM BANK. IN VIEW OF THE ABOVE, THERE WAS NO JUSTIFICATION FOR MAKING ANY ADDITION ON THE ALLEGA TION OF INFLATED STOCK SHOWN TO THE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 8 - BANK. WHETHER THE VALUE OF THE STOCK SHOWN IN THE B OOKS OF ACCOUNT WAS GENUINE OR NOT HAD BEEN CONSIDERED BY THE TRIBUNAL AND CONSIDE RING THE FACTS DISCUSSED BY THE TRIBUNAL THERE WAS NO REASON TO HOLD THAT THE FINDI NG OF THE TRIBUNAL WAS PERVERSE. CIT V. HINDUSTAN MARBLE (P.) LTD. (2009) 179 TAXMA N 289 (GUJ.) THE ASSESSEE WAS THE OWNER OF MINES AT DIFFERENT SI TES FROM WHICH IT WAS EXTRACTING MARBLE BLOCKS. SUCH MARBLE BLOCKS WERE CONVERTED IN TO SLABS AND MARBLE TILES WERE MANUFACTURED FROM SUCH SLABS. ON THE BASIS OF A COMMON INVENTORY OF THE ASSESSEE AND OTHER TWO CONCERNS, THE ASSESSING OFFICER WORKED OUT THE DISCREPANCY IN STOCK OF MARBLE, MARBLE SLABS AND MARBLE FILES AND MADE ADDI TIONS BY STATING THAT THE DISCREPANCY COULD NOT BE RECONCILED. ON APPEAL, THE ASSESSEE ACCEPTED THAT THE DISCREPANCY IN RELATION TO THE MARBLE BLOCKS COULD NOT BE RECONCILED. HOWEVER, INSOFAR AS THE DISCREPANCY IN THE STOCK OF MARBLE S LABS AND MARBLE TILES WAS CONCERNED, THE ASSESSEE SUBMITTED THAT THE DEFICIT IN THE STOCK OF SLABS WOULD BE TAKEN CARE OF BY SURPLUS IN STOCK OF MARBLE TILES BECAUS E TILES WERE MANUFACTURED FROM SLABS. THE COMMISSIONER (APPEALS) REJECTED THE ASSE SSEE'S CONTENTION AND UPHELD THE ORDER OF THE ASSESSING OFFICER. ON SECOND APPEAL, T HE TRIBUNAL SUSTAINED THE ADDITION IN RESPECT OF SHORTAGE OF MARBLE BLOCKS. HOWEVER, IN RELATION TO DISCREPANCY IN STOCK OF SLABS AND TILES, THE TRIBUNAL NOTED THAT THE INV ENTORY OF THREE CONCERNS WAS MIXED UP AND, THEREFORE, THE DEFICIT OF SLABS WAS S ET OFF AGAINST EXCESS STOCK OF TILES. IT, ACCORDINGLY, RETAINED THE ADDITION PARTIALLY WH ILE DELETING THE REST OF THE ADDITION. CIT V. LAXMI ENGINEERING INDUSTRIES (2009) 308 ITR 279 (RAJ.) THERE CAN BE CIRCUMSTANCES WHERE THERE MAY BE DIFFE RENCE IN THE QUANTITY OF STOCK, AS APPEARING IN THE BALANCE-SHEET, AND AS APPEARING IN THE HYPOTHECATION MADE TO THE BANK, AND IF THERE IS ANY EXPLANATION COMING FORWAR D FOR THE DISCREPANCY, THEN THE ADDITION NEED NOT BE MADE. SUFFICIENTLY OR RELIABIL ITY OF THE EXPLANATION, OFFERED BY THE ASSESSEE, IS A QUESTION OF FACT, AND THE FINDINGS T HEREON, AS RECORDED BY TRIBUNAL, CANNOT BE INTERFERED WITH BY THE HIGH COURT, AS THE Y DO NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. WHERE THERE WAS DIFFERENCE BETWEEN THE VALUE OF STO CK SHOWN IN ACCOUNTS AND THE VALUE DISCLOSED TO THE BANK, AND THE TRIBUNAL'S FIN DING WAS THAT THE ASSESSING OFFICER HAD NOT BEEN ABLE TO POINT OUT ANY DISCREPANCY IN T HE QUANTITY OF STOCK HYPOTHECATED TO THE BANK AND THE QUANTITY OF STOCK AS PER BOOKS OF ACCOUNT, ON THE FACE OF SUCH FINDING, EVEN IF THERE WAS SOME DIFFERENCE IN THE V ALUATION OF THE SAID QUANTITY OF THE STOCK IN THE BALANCE SHEET, AS AGAINST THE VALUATIO N SHOWN IN THE BANK, IT COULD NOT BE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 9 - SAID TO BE RESULTING INTO ANY INCOME FROM UNDISCLOS ED SOURCES COMING TO THE ASSESSEE CAPABLE OF BEING ADDED TO ITS INCOME. ASSTT. CIT V. JVOTI WOOLLEN MILLS (2009) 125 TTJ 8 10 (DELHI) THE ASSESSEE WAS IN THE BUSINESS OF MANUFACTURING O F WOOLLEN AND SHODDY YAM AND HAD TAKEN LOAN AGAINST HYPOTHECATION OF STOCK FROM SB/. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT THE A SSESSEE HAD SUBMITTED A STATEMENT OF STOCK TO THE BANK AS ON 21-3-2005 SHOWING THE VA LUE OF THE STOCK AT RS.35,55,589/- WHEREAS STOCK AS PER BOOKS AND BALANCE SHEET AS ON 31-3-2005 WAS SHOWN AT RS.23,38,886/- WHICH WAS SUBMITTED WITH THE RETURN OF INCOME. BY RECALCULATING THE OTHER FIGURES OF MANUFACTURING-CUM-TRADING ACCOUNT, THE ASSESSING OFFICER FOUND THAT THE STOCK HAD BEEN SHOWN LOWER BY RS.17,45,954/- AN D, THEREFORE, MADE ADDITION OF THE SAME UNDER SECTION 69. HELD THAT THE CREDIT FACILITY WAS EXTENDED BY THE B ANK TO THE ASSESSEE AGAINST THE HYPOTHECATION OF STOCK AND THE VALUATION OF THE STO CK DECLARED TO THE BANK WAS HIGHER THAN THE ACTUAL STOCK AVAILABLE IN THE BOOKS OF ACC OUNT AND THIS INFLATION OF THE STOCK WAS DONE BY THE ASSESSEE TO OBTAIN HIGHER CREDIT LI MIT FROM THE BANK. THE ASSESSING OFFICER HAD NOT BROUGHT ON RECORD ANY EVIDENCE TO S HOW THAT THE ASSESSEE WAS IN FACT IN POSSESSION OF HIGHER QUANTITY OF STOCK . THEREFORE, ON MERE COMPARISON OF THE STOCK DECLARED TO THE BANK AND THE ONE SHOW N IN THE BOOKS OF ACCOUNT, ADDITION COULD NOT BE MADE OF THE DIFFERENCE BETWEE N THE TWO. THUS, THE ADDITION WAS TO BE DELETED. IN VIEW OF ABOVE FACTS, SUBMISSIONS AND DETAILS COU PLED WITH LEGAL POSITION LAID DOWN BY VARIOUS COURTS OF LAW, THE IMPUGNED ADDITION OF RS.32,42,815/-REQUIRES TO BE DELETED.' 5.1. AFTER CONSIDERING THE AFORESAID SUBMISSIONS, T HE LD.CIT(A) GIVEN A FINDING IN PARA-4.3 OF HIS ORDER, BY OBSERVING AS U NDER:- 4.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESSMENT ORDER AND APPELLANT'S SUBMISSION. ASSESSING OFFICER MADE ADDITIONS ON ACC OUNT OF UNACCOUNTED STOCK ON THE GROUND THAT AMOUNT OF THE STOCK DISCLOSED TO BANK WAS HIGHER. THE STOCK STATEMENT GIVEN TO THE BANK DID NOT HAVE ANY QUANTITATIVE DETAILS OF STOCK ITEMS. IT ONLY MENTIONED AGGREGATE AMOUNT WIT HOUT ANY QUANTITY DETAILS. THE AMOUNT GIVEN TO THE BANK IS RS 6198448. AS AGAI NST THIS, APPELLANT IS HAVING COMPLETE STOCK RECORDS AND QUAN TITY TALLY FROM PAPER BOOK ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 10 - PAGES 74 TO 134. THE TOTAL VALUE DISCLOSED IN THE B OOKS AS PER QUANTITY DETAILS IS RS 2955633. THEREFORE IT IS CLEAR THAT THERE WAS NO QUANTITY DIFFERENCE O N STOCK FOUND BY THE ASSESSING OFFICER ON COMPARING T HE TWO STOCK DETAILS. APPELLANT SUBMITTED VARIOUS REASONS FOR SUCH DIFFER ENCE. THE IMPORTANT REASONS ARE- THERE WAS SPLIT IN THE BUSINESS OF THE APPELLANT COMPANY DURING THE YEAR AND A NEW ENTITY WAS CREATED WHICH HAD SUB STANTIAL STOCK AND ACCOUNTANT SUBMITTED THE STOCK STATEMENT IGNORING T HE SEPARATE ENTITY. ANOTHER ARGUMENT OF THE APPELLANT WAS THAT STOCK ST ATEMENT WAS GIVEN TO THE BANK JUST ON THE BASIS OF ESTIMATE WITHOUT REFERRIN G THE QUANTITATIVE STOCK RECORDS MAINTAINED BY IT. APPELLANT ALSO ARGUED THA T IN THE EARLIER YEAR AND IN SUBSEQUENT YEAR, STOCK STATEMENT SUBMITTED TO THE B ANK REPORTED LESS STOCK AS COMPARED TO STOCK DISCLOSED IN BOOKS OF ACCOUNTS. T HEREFORE STOCK FIGURES REPORTED TO BANK ARE JUST ESTIMATED AND NOT PREPARE D ON THE BASIS OF QUANTITY RECORDS OF STOCK. CONSIDERING THE VARIOUS ARGUMENTS OF THE APPELLANT, IT IS CLEAR THAT THE STOCK VALUE REPORTED TO THE BANK BY THE APPELLANT ARE ONLY ESTIMATED VALUE AND NOT BASED ON QUANTITY DETAILS O F STOCK. SINCE THE QUANTITY WAS NOT DISCLOSED IN THE STATEMENT GIVEN TO THE BAN K, THERE IS NO DISCREPANCY AS FAR AS QUANTITY IS CONCERNED. THE DECISIONS OF VARIOUS COURTS ARE IN FAVOR OF THE DEPARTMENT WHERE THE DIFFERENCE IN QUANTITY ON THE BASIS OF STOCK ST ATEMENT GIVEN TO THE BANK AND AS PER BOOKS REMAINED UNEXPLAINED. THERE IS NO SUCH DIFFERENCE IN THIS CASE AND ACCORDINGLY THESE DECISIONS DO NOT APPLY. AS AG AINST THIS, THE DECISIONS OF HONORABLE GUJARAT HIGH COURT RELIED UPON BY THE APP ELLANT AND QUOTED IN THE APPELLANT'S SUBMISSION ARE CLEARLY APPLICABLE TO TH E FACTS OF THIS CASE. ALL THE DECISIONS REFERRED IN THE APPELLANT'S SUBMISSION AR E ON THE IDENTICAL FACTS AND THEREFORE APPELLANT'S CASE IS COVERED BY THESE DECI SIONS. THE FINDINGS IN THESE DECISIONS ARE NOT REPEATED HERE BUT THE SAME IS SQU ARELY APPLICABLE TO THE FACTS OF THE APPELLANT AND ACCORDINGLY THE ADDITION ON ACCOUNT OF STOCK DIFFERENCE VALUE (NOT QUANTITY DIFFERENCE) MADE BY THE ASSESSING OFFICER CANNOT SURVIVE. RESPECTFULLY FOLLOWING THE DECISION OF JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ARROW EXIM (P) LTD [2010] 230 CTR 29 3 AND OTHER DECISIONS QUOTED BY THE APPELLANT, THE ADDITION MADE BY THE A O IS DELETED. IN THE FINAL RESULT APPEAL IS PARTLY ALLOWED. 5.2. THE REVENUE HAS NOT DISPUTED THE FACT THAT THE RE IS NO DISCREPANCY WITH REGARD TO QUANTITATIVE DETAILS OF THE STOCK IT EMS. THE ONLY DIFFERENCE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 11 - IS WITH REGARD TO ADOPTING THE VALUE OF CLOSING STO CK. WE FIND THAT BEFORE THE LD.CIT(A), THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE C ASE OF CIT VS. ARROW EXIM (P.) LTD. REPORTED AT (2010) 230 CTR 293 (GUJ. ) AND OF CIT VS. VEERDIP ROLLERS (P.) LTD. REPORTED AT (2010) 323 IT R 341 (GUJ.). THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. V EERDIP ROLLERS P. LTD. HAS HELD AS UNDER:- 3. THE ISSUE RAISED IN THIS QUESTION IS WHETHER THERE CAN BE ANY ADDITION ON ACCOUNT OF DIFFERENCE IN THE VALUE OF CLOSING STOCK FURNISHED TO THE BANK AND THE VALUE OF THE STOCK FOUND IN THE BOOKS OF ACCOUNT FU RNISHED TO THE IT AUTHORITIES. THE TRIBUNAL HAS DEALT WITH THIS ASPECT IN PARA 7 A S UNDER : 'WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PA RTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT T HE ASSESSEE IN HIS PAPER BOOK HAS SUBMITTED THE ORIGINAL APPLICATION F ILED BY THE ASSESSEE IN THE BANK TO OBTAIN THE CASH CREDIT FACILITY OF R S. 20 LAKHS. THE BANK HAS GIVEN THE CASH CREDIT FACILITY OF RS. 15 LAKHS. THE AO HAS VERIFIED THE STOCK STATEMENT WHICH WAS SUBMITTED ALONG WITH THE RETURN. MOREOVER, THE AO HAS ALSO WORKED OUT THE CLOSING ST OCK OF EMERY POWER AND MACHINERY SPARES AS PER THE RETURN AND THE VALU E COMES TO RS. 14,07,156. WE FIND THAT THE AO HAS VERIFIED THE VAL UE OF STOCK WHICH WAS GIVEN TO THE BANK, WHEREIN THE ASSESSEE HAS INF LATED THE VALUE OF STOCK AND SHOWN THE VALUE AT RS. 21,23,680 WHICH CA N BE VERIFIED FROM P. 1 OF THE ASSESSMENT ORDER. THE ASSESSEE HAS SUBM ITTED THE BANK STATEMENT WITH INFLATED PRICE OF THE STOCK. THERE I S NO DIFFERENCE IN QUANTITY OF THE STOCK. THE DIFFERENCE IS ONLY OF IN FLATED PRICE OF THE STOCK WHICH WAS GIVEN TO THE BANK. WE FIND THAT THE AO IN SUPPORT OF HIS FINDING HAS RELIED ON THE DECISION OF THE HON'BLE M ADRAS HIGH COURT IN THE CASE OF COIMBATORE SPINNING & WEAVING CO. LTD. VS. CIT (1974) 95 ITR 375 (MAD), THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF DHANSIRAM AGARWALLA VS. CIT (1993) 111 CTR (GAU) 39 : (1993) 201 ITR 192 (GAU) AND CONCLUDED THAT THE ASSESSEE WAS U NABLE TO DISCHARGE ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 12 - THE ONUS TO PROVE THAT BOOKS OF ACCOUNT ALONE GIVE THE CORRECT PICTURE AND THE STATEMENT GIVEN TO THE BANK WAS MOTIVATED. IN THE PRESENT CASE AT HAND, IT IS NOT DISPUTED BY THE REVENUE THAT IN ORDER TO AVAIL OF CASH CREDIT FACILITY AGAINST HYPOTHECATION OF STOCK TO T HE BANK, THE ASSESSEE HAS SUBMITTED THE INFLATED STOCK AND NOT THE ACTUAL STOCK. THE INFLATED STOCK WAS HYPOTHETICAL AND NOT PLEDGED. THE BANK OF FICIAL HAD NOT VERIFIED THE SAID STATEMENT SHOWING THE INFLATED ST OCK SO PRODUCED BY THE ASSESSEE OR THE SAME WAS ASCERTAINED FROM THE BANK. CONSIDERING ALL THESE ASPECTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE DECISION OF CIT VS. KHAN & SIROHI STEEL ROLLING MIL LS (2006) 200 CTR (ALL) 595 IS APPLICABLE TO THE PRESENT CASE, WHEREI N THE DECISION IN THE CASE OF COIMBATORE SPINNING & WEAVING CO. LTD. VS. CIT (SUPRA) HAS BEEN RELIED ON. IN THE CASE OF ASHOK KUMAR VS. ITO (2006) 201 CTR (J&K) 178, THE HON'BLE HIGH COURT OF JAMMU AND KASH MIR HAS HELD : 'ADDITION COULD NOT BE MADE ON THE BASIS OF DIFFERE NCE BETWEEN CLOSING STOCK DECLARED IN THE TRADING ACCOUNT AND THE STOCK SHOWN IN THE STATEMENT SUBMITTED BY THE ASSESSEE TO THE BANK AS THE STOCK POSITION SHOWN TO THE BANK WAS ON ESTIMATE BASIS AND INFLATE D VALUE WAS SHOWN TO AVAIL OF MORE CREDIT FROM BANK'. THEIR LORDSHIPS HAVE APPLIED THE DECISION OF CIT VS. N. SWAMY (2000) 241 ITR 363 (MA D). IN VIEW OF THE ABOVE, THERE IS NO JUSTIFICATION FOR MAKING ANY ADD ITION ON THE ALLEGATION OF INFLATED STOCK SHOWN TO THE BANK. WE MAY MENTION HERE THAT THIS BENCH HAD OCCASION TO DEAL WITH IDENTICAL ISSUE IN SOME CASES AND THE SAME HAS BEEN RESOLVED IN FAVOUR OF THE ASS ESSEE. IN THE CASE OF DY. CIT VS. PATIDAR SILICA (P) LTD. IN ITA NOS. 210 4 AND 388/RJT/2004 DT. 30TH NOV., 2005; IN THE CASE OF ITO VS. SPHYKAR ALUMINIUM EXTRUSION (P) LTD. IN ITA NO. 626/RJT/2004 DT. 26 N OV., 2005, THIS BENCH OF THE TRIBUNAL HAS DELETED SIMILAR ADDITION. THE CIT(A) HAS SUSTAINED THE ADDITION AT 10 PER CENT, OF THE EXCES S STOCK OF RS. 80,25,662 (I.E., RS. 1,42,86,870 THE STOCK AS PER T HE BANK STATEMENT MINUS RS. 62,61,202 AS SHOWN IN THE REGULAR BOOKS O F ACCOUNT. IN VIEW OF OUR FINDING THAT NO ADDITION CAN BE MADE ON THIS COUNT, THE ORDER OF THE CIT(A) CONFIRMING THE ADDITION CANNOT BE SUSTAI NED. THE ORDER OF THE CIT(A) IS, THEREFORE, REVERSED AND THE ADDITION OF RS. 9,75,476 MADE ON ACCOUNT OF UNDISCLOSED INVESTMENT IS DELETED.' ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 13 - 4. WHETHER THE VALUE OF THE STOCK SHOWN IN THE BOOKS OF ACCOUNT IS GENUINE OR NOT HAS BEEN CONSIDERED BY THE TRIBUNAL AND CONSIDE RING THE FACTS DISCUSSED BY THE TRIBUNAL REFERRED TO ABOVE, WE SEE NO REASON TO HOLD THAT THE FINDING OF THE TRIBUNAL IS PERVERSE. 5. CONSEQUENTLY, THE APPEAL STANDS DISMISSED AT THE A DMISSION STAGE. 5.3. IN THE PRESENT CASE ALSO, NO DIFFERENCE IN QU ANTITY OF STOCK IS REPORTED BY THE REVENUE. THE AO HAS NOT MADE ANY E NQUIRY IN RESPECT OF THE EXPLANATION OF THE ASSESSEE THAT THE STOCK BELO NGING TO OTHER ENTITY WAS INCLUDED INTO THE STOCK STATEMENT SUBMITTED TO ITS BANKER. THE AO HAS OBSERVED THAT EVEN IF THE STOCK OF AUTO AGENCY HAS BEEN CONSIDERED WHILE SUBMITTING THE STOCK STATEMENT OF THE COMPANY , THEN THE STOCK STATEMENT OUGHT TO HAVE EXCEEDED THE VALUE AS DECLA RED BY THE ASSESSEE BEFORE ITS BANKER. THE CLAIM OF THE ASSESSEE IS TH AT IT WAS DISTRIBUTOR OF M/S.EICHER MOTORS LTD., WHO SUBSEQUENTLY APPOINTED OTHER ENTITY, THROUGH WHICH THE ASSESSEE WAS MAKING PURCHASES. U NDISPUTEDLY, THE AO HAS NOT MADE ANY ENQUIRY FROM M/S.EICHER MOTORS LTD. WITH REGARD TO PURCHASES MADE BY THE ASSESSEE. NO EVIDENCE IS BROUGHT ON RECORD THAT APART FROM M/S.EICHER MOTORS LTD. THE ASSESSEE WAS ALSO MAKING PURCHASES FROM THIRD PARTIES WHICH HAS NOT BEEN REC ORDED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT. IN THE ABSENCE OF SUCH SP ECIFIC FINDING, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF T HE LD.CIT(A). THEREFORE, RESPECTFULLY FOLLOWING THE RATIO LAID DO WN IN THE JUDGEMENT OF ITA NO.2449/AHD /2011 ITO VS. APCO MOTORS (INDIA) PVT.LTD. ASST.YEAR 2005-06 - 14 - THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. VEERDIP ROLLERS P.LTD.(SUPRA), THIS GROUND OF REVENUES APP EAL IS REJECTED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 19 TH DAY OF MARCH, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 19 / 03 /2015 4,..* , .*../ T.C. NAIR, SR. PS !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &'!% / THE RESPONDENT. 3. 567 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-VI, AHMEDABAD 5. 9 :&*67 , ,670 , 5 / DR, ITAT, AHMEDABAD 6. : <= + / GUARD FILE. ! / BY ORDER, ' 9& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD