Coldrip Steels Pvt. Ltd., Mandi Gobindgarh V. JCIT, Mandi Gobindgarh

ITA 270/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6893 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 09-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: K P BAJAJ
• Keywords: Unexplained investment; Capital asset; Opportunity of being heard; Rule of consistency; Notional interest
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR.B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 270/CHD/2016 ASSESSMENT YEAR: 2011-12 M/S COLDRIP STEELS PVT. LTD. VS. THE ITO G.T. ROAD WARD-2 MANDI GOBINDGARH MANDI GOBINDGARH PAN NO. AAACC6945K (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K.P. BAJAJ REVENUE BY : SH. RAVI SARANGAL DATE OF HEARING : 26/07/2017 DATE OF PRONOUNCEMENT : 07/09/2017 ORDER PER DR. B.R.R. KUMAR, A.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. CIT(A), PATIALA DT. 27/01/2016. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE FINDING OF THE LD. ASSESSING OFFIC ER, THAT THERE IS VARIATION IN PRODUCTION VIS--VIS CONSUMPTION OF ELECTRICITY. 2. THAT WITHOUT PREJUDICE TO ABOVE, ON FACTS AND CI RCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE REJECT ING THE BOOKS OF ACCOUNT MAINTAINED IN THE REGULAR COURSE OF BUSINESS. 3. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE FINDING OF THE LD. ASSESSING OFFICER THAT THE ASSESEE WAS ENGAGED IN CARRYING ON PRODUCTION OUT OF THE BOOKS OF ACCOUNT AND MADE UNEXPLAINED INVESTMENT THEREIN AT RS. 47,43,086/- WHICH WAS REDUCED TO RS. 5,48,441/-. 4. THAT THE LD. CIT(A) IS NOT JUSTIFIED UP HOLDING THE ACTION OF THE LD. ASSESSING OFFICER IN FURTHER ESTIMATING PROFIT ON THE ALLEGED PRODUCTION OUT OF THE BOOKS OF ACCOUNT. 5. THAT WITHOUT PREJUDICE TO ABOVE THE ALLEGED PROD UCTION OUT OF BOOKS OF ACCOUNT AS UPHELD BY THE CIT(A) AND PROFIT THEREON IS HIGHLY EXCESSIVE. 6. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE ADDITION OF RS. 2,24,221/- MADE ON ACCOUNT OF CAPITALIZATION OF INTEREST ON AS SETS FOR THE ALLEGED PREOPERATIONAL PERIOD. 7. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDIN G THE ADDITION OF RS. 89,605/- ON ACCOUNT OF NOTIONAL INTEREST ON INTEREST FREE LOAN. 2 3. THE BRIEF FACTS RELATING TO THE ISSUES UNDER CON SIDERATION ARE THAT THE ASSESSEE COMPANY IS A STEEL RE-ROLLING MIL L ENGAGED IN MANUFACTURING OF IRON AND STEEL PRODUCTS VIZ STRUCT URAL STEEL LIKE ANGLES, CHANNELS, FLATS, JOISTS, BEAMS ETC. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESS EE TO FURNISH DETAILS OF DAILY PRODUCTION OF FINISHED GOODS AS WE LL AS THE DETAILS OF THE MANUFACTURING PROCESS INVOLVED. THE ASSESSING O FFICER FURTHER OBSERVED THAT THE AMOUNT OF ELECTRICITY CONSUMED WA S DIRECTLY RELATED TO THE PRODUCTION OF FINISHED GOODS. IN ORD ER TO CO-RELATE THE CONSUMPTION OF ELECTRICITY VIS--VIS PRODUCTION SHO WN, THE ASSESSING OFFICER GATHERED INFORMATION REGARDING THE CONSUMPT ION OF ELECTRICITY FROM THE ELECTRICITY BOARD. THE ASSESSI NG OFFICER ANALYZED THE CONSUMPTION DATA OF ELECTRICITY VIS-A VIS THE P RODUCTION OF FINISHED GOODS AND OBSERVED THAT THERE WERE WIDE VA RIATION IN RATIO OF ELECTRICITY UNITS CONSUMED TO PER METRIC TONS OF FINISHED GOODS PRODUCED DURING THE YEAR. HE OBSERVED THAT THE ELE CTRICITY CONSUMPTION PMT OF FINISHED GOODS VARIES FROM 64.32 UNITS TO 114.06 UNITS WHILE THE AVERAGE FOR THE ENTIRE YEAR IS 84.1 6 UNITS. HE FURTHER OBSERVED THAT ON SOME DAYS, ELECTRIC UNITS CONSUMED WERE VERY LOW WHEREAS FINISHED GOODS PRODUCED WERE VERY HIGH GIVI NG A VERY LOW VALUE OF ELECTRIC UNITS CONSUMED TO PER TON OF FINI SHED GOODS, WHEREAS ON SOME OTHER DAYS, ELECTRIC UNITS CONSUMED WERE VERY HIGH WHEREAS THE FINISHED GOODS PRODUCED WERE VERY LESS GIVING A VERY HIGH VALUE OF ELECTRIC UNITS CONSUMED PER METRIC UN IT OF FINISHED GOODS. HE FURTHER OBSERVED THAT EVEN ON SOME DAYS T HOUGH THERE WAS ELECTRICITY CONSUMPTION YET NO PRODUCTION WAS S HOWN. HE FURTHER NOTED THAT OTHERWISE ON OTHER DAYS, THERE WAS ALSO A BALANCE AND CONSISTENCY IN CONSUMPTION OF ELECTRIC UNITS VIS-A- VIS PRODUCTION OF FINISHED GOODS. HE, THEREFORE, OBSERVED THAT IT IND ICATED THAT THE DAILY PRODUCTION RECORDED BY THE ASSESSEE OF THE FI NISHED GOODS WAS NOT CORRECT AND, HENCE, NOT RELIABLE. HE OBSERVED T HAT THE DATA RELATING TO THE DAILY PRODUCTION HAD BEEN MAINTAINE D AS PER ACTUAL PRODUCTION. WHEN CONFRONTED IN THIS RESPECT, THE AS SESSEE EXPLAINED THAT THE CONSUMPTION OF ELECTRICITY WAS DEPENDENT O N VARIOUS FACTORS AS DETAILED IN HIS REPLY WHICH HAS BEEN REP RODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE ASS ESSING OFFICER, HOWEVER, WAS NOT SATISFIED WITH THE ABOVE REPLY OF THE ASSESSEE. HE ULTIMATELY HELD THAT THE ASSESSEE COMPANY WAS INVOL VED IN 3 UNACCOUNTED PRODUCTION OF FINISHED GOODS WHICH RESU LTED IN UNACCOUNTED SALES AND PURCHASES. HE, THEREFORE, HEL D THAT THE SALE AND PURCHASE FIGURES IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT CORRECT AND HE ACCORDINGLY REJECTED THE BOOKS O F ACCOUNT OF THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AND PROCE EDED TO FRAME THE ASSESSMENT IN THE MANNER AS PROVIDED U/S 144 OF THE ACT. HE THEREAFTER ESTIMATED THE INCOME OF THE ASSESSEE ON THE BASIS OF ELECTRIC UNITS CONSUMED FOR 12 MONTHS AS PER CHART REPRODUCED IN THE ASSESSMENT ORDER. HE COMPARED THE SAME WITH THA T SHOWN IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND ESTIMATED THE UNACCOUNTED PRODUCTION FOR EACH MONTH. THEREAFTER, ON THE BASIS OF AVERAGE SALES RATE, THE VALUE OF TOTAL UNACCOUNTED PRODUCTION WAS ESTIMATED IN MONETARY TERMS AND THEN ADOPTING THE GROSS PROFIT R ATE SHOWN BY THE ASSESSEE, THE UNACCOUNTED PROFIT OUT OF THE UNA CCOUNTED PRODUCTION WAS WORKED OUT. SECONDLY, THE PEAK UNACC OUNTED PRODUCTION FOR THE RELEVANT MONTH WAS DETERMINED AN D BY MULTIPLYING THE AVERAGE SALE RATE OF FINISHED GOODS , THE UNACCOUNTED INVESTMENT WAS WORKED OUT. THE ASSESSI NG OFFICER IN THIS WAY WORKED OUT THE TOTAL UNACCOUNTED INVESTMEN T OF THE ASSESSEE IN THE UNACCOUNTED PRODUCTION AT RS. 47,4 3,086/- AND RS.5,48,441/- BEING UNACCOUNTED PROFIT OUT OF UNACC OUNTED PRODUCTION AND ADDED BACK THE SAME TO THE TOTAL INC OME OF THE ASSESSEE. 4. BEING AGGRIEVED FROM THE ABOVE ORDER OF THE ASSE SSING OFFICER THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). TH E LD. CIT(A) AFTER GOING THROUGH THE SUBMISSIONS OF THE ASSESSEE HELD THAT AN AMOUNT OF RS. 23,71,538/- MAY BE TREATED AS UNACCOUNTED IN VESTMENTS. LD. CIT(A) ALSO CONFIRMED THE AMOUNT OF RS. 5,48,441/- BEING UNACCOUNTED PROFIT OUT OF UNACCOUNTED PRODUCTION. 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES. 6. IT WAS ALSO BROUGHT TO THE NOTICE THAT SUBSEQUE NT TO THE PASSING OF THE ABOVE STATED IMPUGNED ASSESSMENT ORD ER, A DETAILED STUDY WAS CARRIED OUT BY A COMMITTEE HEADED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE, MANDI, GOBINDGAR H HAVING ALL THE ASSESSING OFFICERS OF THE RANGE AS ITS MEMBERS. THE COMMITTEE WAS ASSISTED BY THE EXPERTS FROM THE NISST (NATIONA L INSTITUTE OF THE 4 SECONDARY STEEL TECHNOLOGY) AND ALSO THE INDUSTRY R EPRESENTATIVES. ON THE BASIS OF THE REPORT OF THE COMMITTEE, IT WAS DECIDED THAT IF THE VARIATION IN THE CONSUMPTION OF THE ELECTRICITY IS WITHIN THE RANGE OF 15% OF THE YEARLY AVERAGE CONSUMPTION OF POWER, THE BOOK RESULTS SHOULD BE ACCEPTED. 7. LD. COUNSEL FOR THE ASSESSEE, RELYING UPON THE R EPORT OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX, PATIALA ARGUED THAT HE WAS COVERED ON THE ISSUE OF PRODUCTION AS DECIDED BY THE COMMITTEE. THE ASSESSEE WAS ENTITLED TO BENEFIT OF 15% VARIATION IN CONSUMPTION OF ELECTRICITY PER MET RIC TON OF FINISHED GOODS PRODUCED FROM THE AVERAGE WORKED OUT ON YEARL Y BASIS AND THE VARIATION UP TO 15% WOULD NOT WARRANT ANY ADVER SE COGNIZANCE. HE ACCORDINGLY ARGUED THAT SINCE PURSUANT TO THE RE PORT OF THE COMMITTEE, THE ASSESSING OFFICERS HAVE BEEN ALREADY FOLLOWING THESE NORMS WHILE MAKING THE ASSESSMENT IN SIMILAR CASES AND IN SAME SET OF CIRCUMSTANCES AND HAS ACCEPTED THE BOOKS RESULTS SHOWN BY THE DIFFERENT ASSESSES. 8. THIS TRIBUNAL VIDE ITS COMMON ORDER DATED 14.2. 2017, PASSED IN THE CASE OF M/S MODI OIL & GENERAL MILL, MANDI GOB INDGRH AND OTHERS IN ITA NO. 149/CHD/2016 AND IN ITA NO. 662/C HD/2016IN THE CASE OF M/S.UNIPEARL ALLOYS, OBSERVING THAT CONSEQU ENT TO THE REPORT OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMI SSIONER OF INCOME TAX, PATIALA CERTAIN INTERNAL GUIDELINES REG ARDING ACCEPTABILITY OF VARIATION UPTO 15% HAVE BEEN ISSUE D AND FURTHER THAT NO ADDITIONS HAVE BEEN MADE ON SIMILAR ISSUE I N SUBSEQUENT YEARS BY THE ASSESSING OFFICER, HAS REMANDED THE MA TTER TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE IS SUE AFRESH IN ACCORDANCE WITH LAW IN THE LIGHT OF THE INTERNAL GU IDELINES ISSUED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX, PATIALA. 9. IN OUR VIEW THIS MATTER NEEDS TO BE RESTORED TO THE ASSESSING OFFICER IN THE PRESENT APPEALS, AS THE LD. CIT(A) D IDNT HAVE THE BENEFIT OF COMMITTEE REPORT WHILE DECIDING THE ABOV E APPEALS AS IN OTHER SIMILAR CASES WHERE IN THE INTERNAL GUIDELINE S OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMISSIONER OF INCOM E TAX, PATIALA WERE FOLLOWED. THE COMMITTEE SO CONSTITUTED WAS A B ROAD BASED MULTI MEMBER BODY HAVING ADDITIONAL COMMISSIONER OF INCOME TAX, MANDI GOBINDGARH AS ITS HEAD AND ALL THE ASSESSING OFFICERS OF THE 5 RANGE AS ITS MEMBERS. IT WAS ALSO ASSISTED BY THE E XPERTS OF THE NATIONAL INSTITUTE OF THE SECONDARY STEEL TECHNOLOG Y (NISST) AND THE INDUSTRY REPRESENTATIVES. THE DEPARTMENT HAS ACCEPT ED THE VARIATION OF 15% IN CONSUMPTION OF ELECTRICITY PER METRIC TON OF FINISHED GOODS AS PER THE REPORT OF THE COMMITTEE. 10. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES A ND SINCE THE FACTS AND ISSUE INVOLVED IN ALL THE OTHER CAPTIONED APPEALS ARE IDENTICAL, AND IN VIEW OF OUR FINDINGS GIVEN ABOVE, FOLLOWING THE PRINCIPLE OF CONSISTENCY LAID DOWN BY THE HON'BLE P UNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. RIETA BISCUITS C O. (P) LTD [2009] 309 ITR 154 (P&H)WHERE IN IT WAS HELD THAT THE BOOK RE SULTS SHOWN BY THE ASSESSEE COMPANY FOR THE YEAR UNDER CONSIDERATION N EED TO BE ACCEPTED, AS WELL. 11. WE THEREFORE, SET ASIDE THE ACTION OF THE ASSES SING OFFICER IN REJECTING THE BOOKS OF ACCOUNT AND WITH DIRECTIONS TO FOLLOW THE GUIDELINES FORMULATED BY THE COMMITTEE CONSTITUTED BY THE PR. CIT(A), PATIALA AND THE INTERNAL GUIDELINES ISSUED REGARDING ACCEPTABILITY OF VARIATION UPTO 15%. THE ASSESSING OFFICER SHALL GIVE REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND ASSESSES SHALL BE AT LIBERTY TO RAISE ANY CONTE NTION BEFORE ASSESSING OFFICER FOR COMPLETION OF THE ASSESSMENT IN ACCORDANCE WITH LAW. 12. IN THE RESULT, APPEAL OF THE ASSESS ON THIS GRO UND 1,2,3,4 & 5 IS ALLOWED FOR STATISTICAL PURPOSES. 13. GROUND NO. 6 IS THAT THE LD. CIT(A) WAS NOT JUS TIFIED TO UPHOLD THE ADDITION OF RS. 2,24,221/- UNDER SECTION 36(1)( III) ON ACCOUNT OF INTEREST ON CAPITAL WORK IN PROGRESS. 14. THE ASSESSING OFFICER OBSERVED THAT THERE IS CA PITAL WORK IN PROGRESS RELATING TO BUILDING AND SHED UNDER CONSTR UCTION, PLANT & MACHINERY UNDER INSTALLATION. THE ASSESSEE HAS CLAI MED INTEREST EXPENDITURE OF RS. 50,36,092/-. THE ASSESSING OFFIC ER HAS DISALLOWED INTEREST ON THE CAPITAL WORK IN PROGRESS TO THE TUN E OF RS. 2,24,221/- ON ACCOUNT OF INTEREST FOLLOWING THE ORDER OF HONB LE PUNJAB & HARYANA HIGH COURT IN CASE OF M/S ABHISHEK INDUSTRI ES LTD. VS. CIT (286 ITR 1). 6 15. THE LD. CIT(A) UPHELD THE ADDITION ON THE GROUN DS THAT THE APPELLANT HAS MIXED TYPE OF FUNDS AND COULD NOT GIV E NECESSARY EVIDENCE REGARDING THE INTEREST BEARING AND NON INT EREST BEARING FUND VIS--VIS APPLICATION OF THE SAME AND HELD THA T INTEREST PERTAINING TO CAPITAL WORK IN PROGRESS WAS NOT CAPI TALIZED AS PER EXPLANATION 8 OF SECTION 43 (I) PROVISO TO SECTION 36(1)(III). 16. LD. DR RELIED ON THE ORDER OF THE CIT(A) , WHIL E LD. AR RELIED ON THE SUBMISSIONS TAKEN BEFORE THE CIT(A). 17. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 18. BEFORE US, THE LD. AR SUBMITTED THAT THE ASSESS EE HAS NOT BORROWED ANY FUNDS FOR RAISING THE CAPITAL ASSETS P ERTAINING TO WORK IN PROGRESS. IT WAS SUBMITTED THAT THE ASSESSEE HAD OWN FUNDS TO THE TUNE OF RS. 1,30,51,678/-ON ACCOUNT OF SHARE CAPITA L, SHARE APPLICATION MONEY AND RESERVES AND SURPLUSES. IT I S ALSO TO BE NOTED THAT THE FINANCE ACT 2003 HAS AMENDED SECTION 36(1) (III) BY INSERTING A PROVISO TO THE EXISTING PROVISION W.E.F 01.04.2004 RELEVANT TO ASSESSMENT YEAR 2004-05. THE PROVISO INSERTED TO THE EXISTING PROVISION OF SECTION 36(1)(III) IS REPRODUCED AS UN DER: PROVIDED THAT ANY AMOUNT OF THE INTEREST PAID, IN RESPECT OF CAPITAL BORROWED FOR ACQUISITION OF AN ASSET FOR EX TENSION OF EXISTING BUSINESS OR PROFESSION (WHETHER CAPITALIZED IN THE BOOKS OF ACCOUNT OR NOT); FOR ANY PERIOD BEGINNING FROM THE DATE ON WHICH THE CAPITAL WAS BORROWED FOR ACQUISITION OF THE ASSET T ILL THE DATE ON WHICH SUCH ASSET WAS FIRST PUT TO USE, SHALL NOT BE ALLOWED AS DEDUCTION. THE JUDGMENT OF VARIOUS COURTS IN THE CASE OF HERO CYCLES (P) LTD. VS. CIT, LUDHIANA C.A. NO. 514 OF 2008 DT. 05/11/20 15, BRIGHT ENTERPRISES PVT. LTD. VS. CIT, JALANDHAR (2016) 381 ITR 107 (P&H) HELD THAT NO DISALLOWANCE OF INTEREST IS CALLED FOR WHER E THE ASSESSEE HAS GOT SUFFICIENT OWN FUNDS. THE ASSESSING OFFICER IS DIRECTED TO GO THROUGH THE FUND POSITION NAMELY CAPITAL AND INTERE ST FREE ADVANCES, RESERVES AND SURPLUS TO DETERMINE WHETHER ANY BORROWED FUNDS HAVE BEEN UTILIZED MORE THAN AVAILABLE OWN FU NDS AND TAKE A DECISION KEEPING IN VIEW THE DECISIONS RENDERED ABO VE. IF SUFFICIENT OWN FUNDS ARE AVAILABLE, NO DISALLOWANCE IS CALLED FOR. THIS GROUND MAY BE TREATED AS SET ASIDE TO THE FILE OF ASSESSIN G OFFICER. 19. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES . 7 20. GROUND NO. 7 RELATES TO ADDITION OF RS. 89,605/ - ON ACCOUNT OF NOTIONAL INTEREST. THIS ISSUE HAS BEEN AKIN TO THE ISSUE DIS CUSSED IN GROUND NO. 6 IF SUFFICIENT OWN FUNDS ARE AVAILABLE, NO DISALLOWANCE IS CALLED FOR. 21. KEEPING IN VIEW THE ADJUDICATION PERTAINING TO GROUND NO. 6 THE MATTER IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO D ETERMINE WHETHER ANY BORROWED FUNDS HAVE BEEN UTILIZED MORE THAN AVAILAB LE OWN FUNDS AND TAKE A DECISION. 22. THIS GROUND MAY BE TREATED AS SET ASIDE TO THE FILE OF ASSESSING OFFICER. 23. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON ____________ SD/- SD/- (DIVA SINGH) (B.R.R.KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR .