S.R. PROTIENS PVT. LTD, Jaipur V. DCIT, Jaipur

ITA 978/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2065 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 08-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Keywords: Rejection of books of accounts; Depreciation; Wrong claim; Commercial expediency
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO.978/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 M/S S.R. PROTEINS PVT. LTD., D-97, SHANTI SADAN AMBABARI, JAIPUR. CUKE VS. THE DCIT - CIRCLE - 4, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AAICS0896F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO.962/JP/16 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 THE ACIT, CIRCLE - 4, JAIPUR. CUKE VS. M/S S.R. PROTEINS PVT. LTD., D-97, SHANTI SADAN AMBABARI, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AAICS0896F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRHDH VKSJ LS@ ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA (ADV.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/05/2017 ?KKS'K .KK DH R KJH[K @ DATE OF PRONOUNCEMENT: 31/05/2017. VKNS'K@ ORDER PER: SHRI VIKRAM SINGH YADAV, A.M. THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 24.08.2016 FOR A.Y. 2011-12. SINCE COMMON ISSUES ARE INVOLVED, BOTH TH E APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 2 ITA NO. 978/JP/2016 THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THAT THE IMPUGNED ASSESSMENT ORDER U/S 143(3) D ATED 26.03.2014 IS BAD IN LAW AND ON FACTS OF THE CASE F OR WANT OF JURISDICTION AND FOR VARIOUS OTHER REASONS AND HENC E THE SAME MAY KINDLY BE QUASHED. 2.1 THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE INVOKING OF THE PROVISIO NS OF S. 145(3) OF THE ACT BY THE AO. THE PROVISIONS SO INVOKED AND CO NFIRMED BY THE CIT(A), BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE, HENCE THE SAME MAY KINDLY BE QUASHED AND THE CONSEQ UENT TRADING ADDITION OF RS. 7,66,080/- MAY KINDLY BE DELETED. 2.2 RS. 7,66,080/-: THE LD. CIT(A) HAS GROSSLY ERRE D IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE TRADING ADDITION OF RS. 7,66,080/- OUT OF RS. 53,55,740/- BY APPLYING THE Y IELD % OF 34.90% AS AGAINST 34.71% DECLARED BY THE ASSESSEE AND 36% BY THE AO ON MUSTERED OIL. THE ADDITION SO MADE AND YIELD % APPL IED BY THE AO AND PARTLY CONFIRMED BY THE CIT(A) IS BEING ABSOLUT ELY, CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE AND NOT IN CONFORMITY WITH THE LAW, HENCE THE SAME MAY KINDLY BE DELETED IN FU LL. 2.3 THE LD. AO HAS ALSO ERRED IN LAW AS WELL AS THE FACTS OF THE CASE IN ADOPTING HIGHER YIELD % ON THE BASIS OF OTHER CASE WITHOUT CONFRONTING OR PROVIDING THE DETAILS OF THAT CASE A SKED FOR AND SERIOUSLY ERRED IN IGNORING THE VITAL EVIDENCES, EX PLANATION AND MATERIAL PROVIDED AND BROUGHT ON RECORD BY THE ASSE SSEE AND THE LD. CIT(A) HAS ALSO ERRED IN CONSIDERING THE SAME IN PA RTLY. THUS THE ADDITION SO MADE AND PARTLY CONFIRMED BY THE LD. CI T(A) IS BEING ABSOLUTELY, CONTRARY TO THE PROVISIONS OF LAW AND F ACTS OF THE CASE AND NOT IN CONFORMITY WITH THE LAW, HENCE THE SAME MAY KINDLY BE DELETED IN FULL. 3. RS. 45,729/-: THE LD. CIT(A) HAS GROSSLY ERRED I N LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF T HE LD. AO IN ALLOWING THE DEPRECIATION @10% ON AC, D.G.SET, ELECTRONICS I TEMS AND WATER COOLER AS AGAINST 15% CLAIMED BY THE ASSESSEE AND A LLOWABLE AS PER ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 3 LAW AND SUSTAINING THE DISALLOWANCE OF DEPRECIATION OF RS. 45,729/- ON THESE ITEMS. THE DISALLOWANCE SO MADE AND SUSTAI NED BY THE CIT(A) IS BEING ABSOLUTELY, CONTRARY TO THE PROVISI ONS OF LAW AND FACTS OF THE CASE AND NOT IN CONFORMITY WITH THE LAW, HEN CE THE SAME MAY KINDLY BE DELETED IN FULL. 4. RS. 71,795/-: THE LD. CIT(A) HAS GROSSLY ERRED I N LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING DISALLOWANCE OF RS. 71,795/- @V 10% ON ACCOUNT OF VARIOUS EXPENSES I.E. CONVEYANCE EXP., OFFICE EXP., STAFF WELFARE EXP., VEHICLE EXP., AND TELEPHO NE EXP.. THE DISALLOWANCE SO MADE AND CONFIRMED BY THE CIT(A) IS BEING ABSOLUTELY, CONTRARY TO THE PROVISIONS OF LAW AND F ACTS OF THE CASE AND NOT IN CONFORMITY WITH THE LAW, HENCE THE SME MAY K INDLY BE DELETED IN FULL. 5. THE LD. AO ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING OF INTEREST U/S 234B, 234C & 234D AS CONSE QUENTIAL IN NATURE. THE APPELLANT TOTALLY DENIES IT LIABILITY O F CHARGING OF ANY SUCH INTEREST. HENCE THE INTEREST SO CHARGED, BEING CONT RARY TO THE PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED IN FULL. ITA NO. 962/JP/2016 THE REVENUE HAS TAKEN FOLLOWING SOLITARY GROUND OF APPEAL:- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(APPEALS) HAS ERRED IN RESTRICTING THE TRADING ADDITION OF RS. 53,55,740/- MADE BY THE AO TO RS. 7,66,080/- WI THOUT APPRECIATING THE FACT THAT THE AO HAS POINTED OUT D EFECTS IN THE BOOKS OF ACCOUNTS & CITING COMPARABLE CASE AO APPLY YIELD PERCENTAGE OF 36%. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE COMPANY IS ENGAGED IN THE BUSINESS OF CRUSHING MUSTARD SEEDS A ND MANUFACTURING OIL AND MUSTARD OILCAKE. DURING THE YEAR UNDER CONSIDER ATION, ASSESSEE REPORTED TURNOVER OF RS. 69,45,17,405/- AND GROSS P ROFIT RATE OF 2%. DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE ASSESSING OFFICER OBSERVED THAT THE YIELD PERCENTAGE OF MUSTARD OIL DURING THE YEAR IS 34.71% IN COMPARISON ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 4 TO 34.90% IN THE PREVIOUS YEAR. IN ORDER TO VERIFY THE FALL IN THE YIELD PERCENTAGE, THE ASSESSING OFFICER EXAMINE THE PURCH ASE DETAILS AND LAB REPORTS OF MUSTARD SEEDS FILED BY THE ASSESSEE WHIC H SHOWS YIELD PERCENTAGE RANGING FROM 37.84% TO 42%. FURTHER, AO OBSERVED THAT M/S POOJA ENTERPRISES, BHARATPUR WHICH IS IN THE SAME L INE OF BUSINESS HAS SHOWN YIELD PERCENTAGE OF 36.47% AND THEREAFTER LOO KING INTO OTHER DEFECTS IN TERMS OF NON MAINTENANCE OF DAILY CONSUMPTION AN D PRODUCTION DETAILS AND THE VARIATION IN THE CONSUMPTION OF ELECTRICITY AND COAL IN DIFFERENT MONTHS, THE AO HELD THAT THE ASSESSEE IS NOT RECORD ING CORRECT PRODUCTION OF MUSTARD OIL IN ITS BOOKS OF ACCOUNTS AND THE BOO KS OF ACCOUNTS WERE THEREFORE REJECTED UNDER SECTION 145(3) OF THE ACT AND AO APPLIED THE YIELD PERCENTAGE OF 36% DRAWING SUPPORT FROM YIELD PERCEN TAGE SHOWN BY M/S POOJA INDUSTRIESAT 36.47%. THE AO ACCORDINGLY COMPU TED SUPPRESSED PRODUCTION BY 2677.87 QUINTAL AND BY APPLYING AVERA GE RATE OF MUSTARD OIL AT RS. 2,000 PER QUINTAL, AN AMOUNT OF RS. 53,55,74 0 WAS ADDED TO THE INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE REJECTION OF BOOKS OF ACCOUNTS AND APPLIED THE YIELD PERCENTAGE OF 34.90% AS DISCLOSED BY THE ASSE SSEE IN THE PREVIOUS YEAR AS AGAINST 36% APPLIED BY THE ASSESSING OFFICE R. NOW BOTH THE PARTIES ARE IN APPEAL BEFORE US CHALLENGING THE SAID FINDIN GS OF THE LD. CIT(A). 4. WE NOW REFER TO THE FINDING OF THE LD. CIT(A) AS HE LD AS UNDER:- 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE ASSESSING OFF ICER NOTICED THAT DURING THE YEAR UNDER REFERENCE THERE WAS INCREASE IN SHORTAGE OF 0.10% AND DECREASE IN YIELD OF 0.19% OF MUSTARD OIL WHEN COMPARED TO THE PREVIOUS YEAR. THE ASSESSING OFFICER ENLISTE D THE DEFECTS FOUND IN EXAMINATION OF BOOKS OF ACCOUNTS AT POINTS FROM 1 TO 7 IN THE ASSESSMENT ORDER. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 5 HE FURTHER NOTED THAT PROCESS LOSS HAD INCREASED BY 0.10% IN COMPARISON TO THE PRECEDING YEAR; CRUSHING EXPENSES HAD INCREASED FROM 6.87% LAKHS TO RS. 10.30 LAKHS, PERCENTAGE OF OIL CAKE EXPENSES HAVE INCREASED BY 50% PRODUCT OF ASSESSEE IS NOT EX CISABLE, HENCE THERE IS NO CHECK ON PRODUCTION. FURTHER, THE ASSES SING OFFICER SHOW CAUSED THE ASSESSEE ON THE ABOVE POINTS AND ALSO AS KED TO EXPLAIN AS TO WHY ITS YIELD PERCENTAGE WAS LOW WHEREAS IN A SI MILAR CASE OF M/S POOJA INDUSTRIES, THE SAME IS SHOWN AT 36.47% AND W HY THE SAME RATE BE NOT APPLIED TO THE ASSESSEES CASE. AFTER C ONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT UNDER SECTION 145(3) OF THE I.T. ACT, 19 61 AND APPLIED THE YIELD PERCENTAGE OF 36% AS AGAINST 34.71% SHOWN BY THE ASSESSEE. IN THE PRESENT PROCEEDINGS, IT HAS BEEN SUBMITTED T HAT THE ASSESSING OFFICER HAS MADE THE ADDITION ONLY AND ONLY ON THE BASIS OF YIELD % SHOWN BY ANOTHER PARTY. FURTHER, THAT ALL BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED AND BETTER TRADING RESULT IS SHOWN COMPARED TO THE PREVIOUS YEAR AND RELIANCE WAS PLACED ON SOME CASE LAWS. AS REGARDS, THE SPECIFIC POINTS RAISED BY THE ASSESSING OFFICER , IT WAS SUBMITTED, THAT YIELD % HAS DECREASED IN A VERY MINOR WAY AND SO SHOULD BE IGNORED. FURTHER, AS REGARDS THE CRUSHING EXPENSES ALSO, THE INCREASE IS VERY LESS AND SHOULD BE IGNORED. A RECONCILIATIO N FOR CLOSING STOCK WAS SUBMITTED AND IT WAS FURTHER CONTENDED THAT THE LAB REPORTS PRODUCED BY THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS, WERE IGNORED BY THE ASSESSING OFFICER. AS SEEN FROM THE DISCUSSION ABOVE, THE ASSESSEE ADM ITS THAT THERE IS PROCESS LOSS INCREASE AND ALSO THAT ITS YIELD PERCE NTAGE HAS DECREASED. THE ASSESSING OFFICER ON EXAMINATION OF BOOKS FOUND CERTAIN DEFECTS, WHICH HE HAS ENUMERAGED IN THE ORD ER, HENCE REJECTION OF ACCOUNTS UNDER SECTION 145(3) IS UPHEL D. NOW COMING TO THE APPLICATION OF YIELD RATE OF 36% BY RELYING ON THE CASE OF M/S POOJA INDUSTRIES, THE ASSESSEE HAS STATED THAT COMP LETE DETAILS WERE NOT PROVIDED TO IT AND SO THE SAME COULD NOT BE PRO PERLY EXPLAINED. IT IS SUBMITTED THAT COMPARISONS COULD BE MADE WITH M/S POOJA ENTERPRISES ONLY AFTER CONSIDERING THE COMPLETE DET AILS WITH THAT ENTERPRISE WHICH WERE NOT AVAILABLE WITH THE ASSESS EE AND ALSO NOT ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 6 PROVIDED TO THE ASSESSEE BY THE ASSESSING OFFICER. HENCE, I AGREE WITH THE ASSESSEE AS REGARDS THE APPLICATION OF YIE LD RATE. THE YIELD RATE SHOWN BY THE ASSESSEE IN THE PREVIOUS YEAR IS 34.90%, THE SAME WOULD BE MORE APPROPRIATE AND HENCE, TO BE APPLIED AND THE ADDITION TO BE MADE ACCORDINGLY. 5. WE NOW REFER TO THE SUBMISSION MADE BY THE LD. A R AS UNDER:- 5.1 FIRSTLY, IT IS NOT DISPUTED THAT THE ASSESSEE HAS MAINTAINED ALL THE BOOKS OF ACCOUNTS CONSISTING OF CASH BOOK, LEDGER, PURCHASE VOUCHERS, CASH PAYMENT VOUCHERS, BANK STATEMENT, LOAN STATEMENT, S TOCK REGISTER, PRODUCTION REGISTER ETC. THE ACCOUNTS ARE AUDITED U /S 44AB OF THE IT ACT AND AS PER COMPANY ACT BY THE QUALIFIED PERSON THE AUDITOR EXAMINED ALL THE BOOKS OF ACCOUNTS AND GAVE HIS AUDIT REPORT IN WHICH HE DID NOT POINT OUT ANY DEFECTS. FURTHER ALL THE BOOKS OF ACCOUNTS ADMITTEDLY WERE DULY PRODUCED BEFORE THE AO VIDE ASSESSMENT ORDER. THE AO THOUGH MADE SOME ALLEGATION HOWEVER, NONE OF THEM ARE SUCH SO AS TO BE BASED MAKING ADDITION AS SUBMITTED BELOW A ND MORE PARTICULARLY WHEN THEY ARE CONTRARY TO FACTS, DETAILS, LEGAL POS ITION AND SUBMISSIONS OF THE ASSESSEE WERE NOT CONSIDERED JUDICIOUSLY. 5.2 BETTER RESULT AND PAST HISTORY: IT IS ALSO PERT INENT TO NOTE THAT THE APPELLANT HAS DECLARED BETTER G.P. RATE IN THIS YEA R. DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAS DECLARED G.P. RATE OF 2. 03% ON THE TOTAL TURNOVER OF RS. 69,45,17,405/- AS AGAINST G.P. RATE OF 1.817%IN LAST YEAR ON THE TOTAL TURNOVER OF RS. 67,51,40,725/- AND G.P. R ATE OF 1.5% IN THE YEAR BEFORE LAST. THUS IN THE YEAR UNDER CONSIDERATION T HE TURNOVER AS WELL AS G.P. RATE HAS INCREASED THAN TO LAST YEAR BUT THE LD. AO HAS IGNORED THIS VITAL FACTS AND PROCEED ON MERE ASSUMPTION AND GUESS WORK AND E STIMATED THE YIELD % OF OIL ON THE BASIS OF COMPARABLE CASE WHICH IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE UNLESS ANY MATERIAL EVIDENCE AND ANY C OMPARABLE OF SAME AREA CASE IN SUPPORT OF HIM HAS BEEN BROUGHT. AS PER NOR MAL PREVAILING PRACTICES IN THE MARKET IN ORDER TO INCREASE THE TURNOVER THE BUSINESS MAN HAS TO SACRIFICE ABOUT THE RATE OF PROFIT ON TURNOVER. IN THIS PARTICULAR CASE IN THE YEAR UNDER CONSIDERATION THE TURNOVER OF THE APPELL ANT IS INCREASED BY 1.94 CRORE AND ALSO INCREASED THE G.P. RATE AS ABOVE. TH E ASSESSEE HAS ALSO STATED THAT THERE WAS NO CHANGE IN THE NATURE OF BU SINESS IN THE YEAR UNDER CONSIDERATION. BUT THE LD. AO HAS NOT APPRECIATED T HE POSITION OF INCOME AND THE EXPLANATIONS FURNISHED IN THIS RESPECT IN T HEIR TRUE PERSPECTIVES AND ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 7 SENSE. THE ABOVE BASIC FACTS AND VITAL ISSUE THAT T HE GROSS PROFIT DECLARED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION WAS MUCH MORE/BETTER IN ALL RESPECT. HENCE THE ENTIRE ADDITION SO MADE ON W RONG BASE IS DESERVED TO BE DELETED. 5.3 HENCE IF ANY DEFECTS ARE FOUND IN THE BOOKS OF ACC OUNTS THEN SAME SHOULD BE REJECTED BY INVOKING THE PROVISIONS OF SE CTION OF 145(3) AFTER GIVING SHOW CAUSE NOTICE. AFTER THEN ONLY COURSE IS LEFT WITH THE AO TO ESTIMATE THE INCOME OR APPLYING THE G.P. RATE BY TA KING IN TO CONSIDERATIONS THE PAST HISTORY OF THE ASSESSEE IN PLACE OF APPLYI NG OF HIGHER YIELD %. HERE THE AO HAS APPLIED THE YIELD RATE FROM 34.72% TO 36 % ON THE BASIS OF COMPARABLE CASES OF DIFFERENT AREA WITHOUT CONFRONT ING. AND WHEN IN THE PAST THE YIELD OF 34.90% IN A.Y. 2010-11 AND 33.29% IN A.Y. 2009-10 THEN THERE SHOULD BE NO QUESTION TO ESTIMATE THE SAME AT 36% AT HIGHER. HENCE THE ADDITION SO MADE MAY KINDLY BE DELETED IN FULL. AND IT IS VERY SETTLED LAW THAT THE PAST HISTORY OF THE ASSESSEE IS THE BE ST GUIDE IN COMPARISON TO ANY COMPARABLE CASES. 5.4 IN THE CASE OF INTERNATIONAL FOREST CO. VS. CIT 101 ITR 0721(J&K) HELD THAT THE MERE FACT THAT LESSER OUT- TURN OF SAWN TIMBER HAS BEEN SHOWN BY THE ASSESSEE IN THE ACCOUNTING YEAR IN QUESTION AS COMPARED TO PREVIOUS YEAR COULD NOT BE TREATED AS A VALID GROUND FOR REJ ECTING ITS ACCOUNTS AND AS INDICATIVE OF ANY ATTEMPT ON THE PART OF THE ASSESSEE TO DEFRAUD THE IT DEPARTMENT. THE YIELD WOULD VARY FROM YEAR TO YEAR TO A LARGE EXTENT, DEPENDING ON SEVERAL FACTORS AND THE YIELD OBTAINED IN ONE YEAR WOULD NOT FURNISH ANY GUIDANCE FOR ESTIMATING THE YIELD FOR ANY SUBSEQUENT YEAR. IN THE ABSENCE OF ANY OMISSION, IRREGULARITY OR OTHER DEFE CT IN THE METHOD OF MAINTAINING THE ACCOUNTS OR POSITIVE EVIDENCE TO SH OW THAT THE ACCOUNTS DID NOT DISCLOSE THE WHOLE INCOME OF THE ASSESSEE, HIS BOOKS OF ACCOUNTS CANNOT BE REJECTED.B.F. VARGHESE VS. STATE OF KERA LA (1969) 72 ITR 726 (KER) : TC1R.655 AND RAGHUBAR MANDAL HARIHAR MANDAL VS. STATE OF BIHAR (1957) 8 STC 770 (SC) RELIED ON . EVEN IF THE ITO CONSIDERED THE MATERIAL PLACED BEFO RE HIM BY TH E ASSESSEE TO BE UNRELIABLE KEEPING IN VIEW THE COMPARATIVE ST ATEMENT OF ACCOUNTS OF THE PREVIOUS YEARS, HE COULD NOT PROCEED TO MAKE AN ARBITRARY ADDITION AND BASE HIS CONCLUSION PURELY ON GUESS- WORK. HE OUGHT TO HAVE RELATED HIS ESTIMATE TO SOME EVIDENCE OR MATERIAL ON THE RECORD AS IT IS NOW WELL- SETTLED THAT IF THE PROFITS SHOWN BY THE ASSESSEE I N HIS RETURN ARE NOT ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 8 ACCEPTED, IT IS FOR THE TAXING AUTHORITIES TO PROVE THAT THE ASSESSEE MADE MORE PROFITS. 5.5. IN THE CASE OF N. RAJA PULLAIAH VS. DCIT (1969) 73 ITR 0224(AP)HELD THATTHE MAIN COMPLAINT OF THE PETITIONERS IS THAT T HE METHOD ADOPTED BY THE TAXING OFFICER CANNOT AFFORD A SURE OR REASONABLE B ASIS FOR DETERMINATION OF THE TURNOVER. THE CONSUMPTION OF ELECTRICITY BY ITS ELF CANNOT FORM A RELIABLE TEST FOR DETERMINING THE YIELD OF OIL. THE YIELD DE PENDS UPON VARIOUS FACTORS, VIZ., THE QUALITY OF THE SEEDS, THE CONDITION OF TH E MACHINE, THE SKILL OF THE DRIVER, THE SOUNDNESS OF ELECTRIC EQUIPMENT, ETC. T HERE MAY BE SEVERAL OTHER DISTURBING FACTORS WHICH AFFECT THE NET YIELD OF OIL. THE CONSUMPTION OF ELECTRICITY ITSELF IS AFFECTED BY VARIOUS FACTORS. THAT APART, THE RESULTS OF THE TESTS CARRIED ON IN OTHER CONCERNS OR UNDERTAKINGS, WHICH MAY NOT BE SIMILARLY CIRCUMSTANCED FOR VARIOUS REASONS, CANNOT FORM A REASONABLE BASIS FOR DETERMINING THE YIELD OF THE PETITIONERS' CONCE RNS. IT IS ON THESE GROUNDS THAT THE ASSESSMENTS HAVE BEEN BROUGHT INTO QUESTIO N. TO OUR MIND, THERE IS FORCE IN THE ARGUMENT ADVANCE D BY MR. VENKATARAMAIAH, LD. COUNSEL FOR THE PETITIONERS. TH ERE IS NO STRONG OR VALID REASON WHY THE AUTHORITY DID NOT CARRY OUT THE TEST IN THE ROTARIES OF THE PETITIONERS THEMSELVES. THE FACT THAT THE METER IS INCONVENIENTLY PLACED IS NO GROUND AGAINST CARRYING ON THE EXPERIMENT. IT IS POINTED OUT TO US THAT IN LIKE CASES THE TRIBUNAL ITSELF HAD SET ASIDE THE AS SESSMENTS IN VIEW OF THE WIDE DISPARITY IN ELECTRICITY CONSUMPTION FROM MILL TO MILL FOR THE REQUIRED QUANTITY OF OIL YIELD. BE THAT WHAT IT MAY, IT IS P LAIN KNOWING IT FOR CERTAIN, THAT THE TURNOVER DEPENDS ON VARIOUS FACTORS AND CI RCUMSTANCES PECULIAR TO THE ROTARIES CONCERNED, THE TAXING AUTHORITY RESTED THEIR CONCLUSIONS ON THE TESTS CARRIED OUT IN OTHER ROTARIES. THE BASIS FURN ISHED BY TESTS CONDUCTED IN OTHER UNDERTAKINGS CANNOT BE OF MUCH RELEVANCE FOR THE PURPOSE OF THESE MILLS ABOUT WHICH IT CANNOT BE SAID THAT THEY ARE S IMILARLY CIRCUMSTANCED IN ALL RESPECTS. AS THE DATA RELIED UPON BY THE ASSESS ING AUTHORITIES, WHICH IS MADE THE BASIS OF BEST JUDGMENT ASSESSMENT, THUS SM ACKS OF ARBITRARINESS, THE BEST JUDGMENT ASSESSMENT IS LIABLE TO BE SET AS IDE 5.6 IN THE CASE OF ACIT V/S SHIV AGREVO 123 TTJ 416(JP ) HELD THAT ACCOUNTSREJECTIONABSENCE OF FINDING AS TO SPECIFI C DEFECTAO INVOKED THE PROVISIONS OF S. 145(3) AND MADE ADDITIONS TO A SSESSEES INCOME ON ACCOUNT OF DECLINE IN GP RATE AND YIELD OF MUSTARD OIL AS COMPARED TO THE PROCEEDING YEARNOT JUSTIFIEDAO HAS NOT POINTED OU T ANY SPECIFIC DEFECT ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 9 IN THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY T HE ASSESSEE ESTIMATION OF YIELD COULD NOT BE MADE WITHOUT POINT ING OUT ANY SPECIFIC DEFECTTHEREFORE, ACCOUNTS COULD NOT BE REJECTED AN D ADDITION WAS RIGHTLY DELETED. IN THIS CASE THE YIELD % HAS BEEN SHOWN ONLY 30.99% WHEN IN OUR CASE THE YIELD % IS 34.72% 5.7 IN THE CASE OF ITO VS. SWASTIK UDYOG (2011) 137 TTJ 0065 (UO)(JP) HELD THAT ACCOUNTSREJECTIONTRADING ADDIT ION VIS-A-VIS LOW YIELD OF OILASSESSEE ENGAGED IN BUSINESS OF OIL EXTRACTI ON FROM TARAMERA AND GROUNDNUTAO COMPARED THE YIELD OF OIL FROM TARAMER A AND GROUNDNUT AS SHOWN BY THE ASSESSEE AS COMPARED TO THE RESULT SHO WN IN THE PRECEDING YEARAO WAS OF OPINION THAT YIELD AND OIL IN GROUND NUT SHOULD HAVE BEEN 28 PER CENT BUT ASSESSEE HAS SHOWN ONLY 25.58 PER C ENTAO WAS NOT JUSTIFIED IN ENHANCING YIELD BY REJECTING THE BOOKS OF ACCOUNTACCOUNTS OF THE ASSESSEE CANNOT BE TERMED AS INCORRECT OR INCOM PLETETHERE IS NO CASE OF REJECTION OF BOOKS OF ACCOUNT EXCEPT SOME VARIAT ION IN VALUATION OF CLOSING STOCKPROVISIONS OF S. 145(3) ARE NOT APPLI CABLE ON ACCOUNT OF NOT FOLLOWING THE ACCOUNTING STANDARD NOTIFIED OR BY NO T FOLLOWING THE ACCOUNTING METHOD AS FOLLOWED IN EARLIER YEARSIN R ESPECT OF CLOSING STOCK OF TARAMERA SEED, THE ASSESSEE HAS GIVEN VALID EXPL ANATION AND THERE IS NO CASE OF UNDER-VALUATION OF STOCK OF TARAMERAASSESS EE IS MAINTAINING THE PRODUCTION REGISTER AND THE AO WAS NOT JUSTIFIED IN ENHANCING YIELD BY REJECTING THE BOOKS OF ACCOUNT. 5.8 HERE WE SUBMITTING OUR SUBMISSIONS AGAINST THE ALLE GATIONS HAS BEEN MADE BY THE AO. I) THE ALLEGATION OF THE AO THAT DAILY RECORD OF PR ODUCTION MUSTERED OIL AND OIL CAKE NOT MAINTAINED IS INCORRECT BECAUSE ALL TH E DETAILS AND STOCK REGISTER HAS BEEN PRODUCED TO THE AO WHICH IS ALSO THE PART OF BOOKS OF ACCOUNT. II) THE UNIT CONSUMPTION OF ELECTRICITY FOR CRUSHIN G OF PER QUINTAL SEEDS WAS RANGING BETWEEN 6.85 TO 7.89 VARYING QUITE WIDELY. IN THIS REGARD WE SUBMITS THAT IT IS NOT IN THE HAND OF THE ASSESSEE THE CONSUMPTION DEPENDS UPON THE QUALITY OF SEEDS CONDITION OF MACHINERY AN D OTHER FACTOR WHEN THE BILL OF ELECTRICITY HAS ISSUED BY THE GOVT. THE CON SUMPTION OF ELECTRICITY BY ITSELF CANNOT FORM A RELIABLE TEST FOR DETERMINING THE YIELD OF OIL. THE YIELD ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 10 DEPENDS UPON VARIOUS FACTORS, VIZ., THE QUALITY OF THE SEEDS, THE CONDITION OF THE MACHINE, THE SKILL OF THE DRIVER, THE SOUNDN ESS OF ELECTRIC EQUIPMENT, ETC. THERE MAY BE SEVERAL OTHER DISTURBING FACTORS WHICH AFFECT THE NET YIELD OF OIL. III) DAY TO DAY QUANTITATIVE/QUALITATIVE AND DAILY CONSUMPTION AND PRODUCTION DETAILS HAS NOT BEEN MAINTAINED IS INCOR RECT BECAUSE ALL THE DETAILS AND STOCK REGISTER HAS BEEN PRODUCED TO THE AO WHICH IS ALSO THE PART OF BOOKS OF ACCOUNT. AND ALSO PRODUCING BEFOR E YOUR HONOR. IV) YIELD % DURING THE YEAR IS 34.72% AS AGAINST 34 .90% IN THE LAST YEAR, PROCESS LOSS (SHORTAGES) INCREASED 0.10% (WRONGLY T YPED BY THE AO 10%). IN THIS REGARD WE SUBMITS THAT THE DIFFERENCE IS VE RY MINOR I.E 0.18%, AND IT IS GENERAL THING THAT IN EVERY YEAR THE QUALITY OF SEEDS IS NOT REMAINED THE SAME, SOME TIME DUE TO CLIMATE EFFECTS THE PRODUCE OF CROP. THE YIELD DEPENDS UPON VARIOUS FACTORS, VIZ., THE QUALITY OF THE SEEDS, THE CONDITION OF THE MACHINE, THE SKILL OF THE DRIVER, THE SOUNDN ESS OF ELECTRIC EQUIPMENT, ETC. THERE MAY BE SEVERAL OTHER DISTURBING FACTORS WHICH AFFECT THE NET YIELD OF OIL. V) ON THE ALLEGATION OF CRUSHING EXPENSES WE HAVE TO SUBMIT THAT CRUSHING EXP. IN A.Y 2010-11 WAS OF RS. 2,09,60,921/- ON TH E TURNOVER OF RS. 67,51,40,725/- WHICH COMES 3.10% AND DURING THE YE AR THE CRUSHING EXP. WAS OF 2,17,92,053/- ON THE TURNOVER OF RS. 69,43,7 0434/- WHICH COMES TO 3.14% I.E THERE IS ONLY 0.04% INCREASE WHICH IS VER Y NORMAL AND REASONABLE BECAUSE EVERY YEAR THERE IS INCREASE OF LABOR EXP. ELECTRICITY AND OTHER EXPENSES ABOUT 10% LOOKING TO THIS THERE IS NO HIG HER EXPENSES HAVE BEEN CLAIMED AND WHEN THE AO HAS NOT POINTED OUT ANY IN STANCE THAT THERE ARE BOGUS CLAIM. VI) THE AO WRONGLY STATED THAT THERE IS DIFFERENCE IN CLOSING STOCK BECAUSE HE HAS THE FIGURE OF GROSS PURCHASE HOWEVER HE IGNO RE THE DEDUCTION WHICH IS BEING MADE AND ISSUED THE DEBIT NOTES THE CLOSIN G STOCK AFTER NET WHICH HAS BEEN EXPLAINED BY THE ASSESSEE DURING THE COURS E OF ASSESSMENT PROCEEDING AND ACCEPTED BY HIM. 5.9 LAB REPORTS IGNORED: THE LD. AO HAS ALSO IGNORED TH E VERY VITAL FACTS THAT WHEN THE ASSESSEE HAS PURCHASED THE SEEDS HE SEND THE SAME TO THE LABORATORY FOR TESTING THE OIL % AND ACCORDING TO T HAT HE MADE THE PAYMENT IN SUPPORT WE ARE FURNISHED SOME LAB REPORT SLIP BE FORE LOWER AUTHORITY. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 11 HOWEVER THE AO HAS NOT CONSIDERED THIS VERY VITAL F ACTS AND THE LD. CIT(A) CONSIDERED IN PART. IF HE WAS HAVING ANY DOUBT HE S HOULD VERIFIED THE SAME. WHEN AN EVIDENCE IS AVAILABLE ON RECORD THE SAME MU ST BE DEEMED TO BE ACCEPTED UNLESS IS NOT REBUTTED. 5.10 COMPARABLE CASES NOT CONFRONTED TO THE APPELLANT AN D NOT COMPARABLE:THE LD. AO HAS APPLIED YIELD RATE OF 36% BY RELYING UPON THE COMPARABLE CASE OF M/S POOJA INDUSTRIES, WHEREIN YI ELD % OF 36.47% HAS BEEN SHOWN. HOWEVER HE HAS NOT PROVIDED THE TRADING RESULT, METHOD OF PROCESS FOLLOWED BY IT, PURCHASES RATE, QUALITY AN D FULL DETAILED THAT CASE, DESPITE THE REQUEST MADE BY THE ASSESSEE VIDE LETTE R DT. 26.03.2014(PB1-2) HE HAS ONLY STATED THAT M/S POOJA INDUSTRIES HAS SH OWN YIELD RATE OF 36.47% IN MUSTARD SEEDS AND ASSESSEE DECLARED YIELD % ABNORMALLY IN LOWER SIDE. THUS THE CASE WHICH HE HAS RELIED WAS N EVER CONFRONTED TO THE APPELLANT BEFORE THE DATE OF ORDER AND THE FULL DET AILS HAVE NOT BEEN PROVIDED TO THE ASSESSEE TO GIVE ITS COMMENTS DESPI TE THE REQUEST MADE. NEEDLESS TO SAY THAT UNLESS THE MATERIAL GATHERED A T THE BACK OF THE ASSESSEE WHICH IS BEING MADE USE WHILE MAKING THE A SSESSMENT, IS CONFRONTED OR THE ASSESSEE IS GIVEN AN OPPORTUNITY TO CROSS EXAMINE THE SAME, THE LAW TOTALLY PROHIBITS THE AO TO USE THE S AME. ALTHOUGH THE LAW IS WELL SETTLED AND THERE ARE SEVERAL JUDICIAL PRONOUN CEMENT ON THIS POINT YET IT WILL BE SUFFICIENT TO REFER TO SEC.142(3) ITSELF WH ICH PROVIDES THAT THE MATERIAL COLLECTED BY THE AO MUST BE CONFRONTED TO THE ASSESSEE BEFORE MAKING ANY ADDITION. 5.11 THE AO HAS TAKEN THE CASE OF M/S POOJA ENTERPR ISES WHICH IS THE CASE OF BHARATPUR WHICH IS 200 KM FAR FROM JAIPUR. THE A TMOSPHERE AND SOIL CONDITION OF BHARATPUR ARE DIFFERENT FROM THE JAIPU R AND THE SEED AND SOIL ARE BETTER THAN TO JAIPUR AREA. THE ASSESSEE USED T O PURCHASE SEED THROUGH THE BROKER WHILE THE BUSINESSMAN OF BHARATPUR AREA THEY DIRECTLY PURCHASED FROM THE OPEN MANDI AND CHOSE THE BETTER SEED ALSO CHECKED OIL CONTENT ON PURCHASE SPOTS AFTER THAT THEY DECIDE THE RATE. TH US THE METHOD OF PURCHASE IS DIFFERENT IN BOTH AREA. THE QUALITY OF SEED OF BHARTPUR ARE BETTER THAN TO JAIPUR AREA. THE ASSESSEE MAKE PAYMENT ON THE BASIS OF OIL CONTE NTS IN THE SEED AND ON PERUSAL OF THE CHART IT IS VERY CLEAR THAT THE ASSE SSEE HAS MADE THE PAYMENT ON SEED PURCHASE AT THE AVERAGE RATE OF 34.22% IN T HE YEAR WHILE SHOWN YIELD 34.72% WHICH IS MORE THAN TO PURCHASE CONDITI ON. HENCE HOW THE AO ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 12 CAN ALLEGED THAT THE ASSESSEE HAS SHOWN LESS YIELD. BUT THE LD. AO BLINDLY IGNORED THIS VERY VITAL FACTS. THE QUALITY OF MUSTARD SEED OF BHARATPUR AREA IS B ETTER AND THE CLIMATE FOR MUSTARD SEED IS ALSO BETTER OF BHARATPUR ARE THAN T O JAIPUR AREA THE ASSESSEE HAS PURCHASED THE MUSTARD SEED OF WEST RAJ . AREA WHERE QUALITY AND ATMOSPHERE OF SOIL IS LOWER THAN TO BHARATPUR. ALL THESE FACTS WERE VERY WELL IN THE KNOWLEDGE OF THE AO BUT HE IGNORED THE SAME HENCE IT CANNOT BE SAID THAT THE CASE OF M /S POOJA INDUSTRIES IS COMPARABLE TO THE CASE OF THE ASSESSEE. WHILE HE HAS NOT CITED THE CASE OF VERY SAME AREA AND SAM E NATURE OF BUSINESS. IT SHOWS CONTRADICTORY APPROACH OF THE AO AND THE A O DID NOT FOLLOW A UNIFORM PRACTICE AND APPLIES DIFFERENT YARDSTICKS I N SIMILAR CASES THEN SUCH ACTION IS HIT BY ART. 14 OF THE CONSTITUTION AND BE COMES ARBITRARY AND CAPRICIOUS. IF THE LD. AO HAS CONSIDERED ALL THESE THING IN THE IR TRUE PERSPECTIVE AND SENSE HE COULD NOT HAVE MADE THE ADDITION. 6. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED THE MATTER AND TOOK US THROUGH THE FINDINGS OF THE AO AND HOW THE FINDI NGS OF THE LD CIT(A) TOWARDS REDUCING THE YIELD PERCENTAGE IS PERVERSE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED ISSUE UNDER CONSIDERATION R ELATES TO REJECTION OF BOOKS OF ACCOUNTS IN VIEW OF LOW YIELD SHOWN BY THE ASSESSEE IN RESPECT OF MUSTARD OIL AS COMPARED TO PREVIOUS YEAR AND THE CO RRECT YIELD PERCENTAGE WHICH SHOULD BE APPLIED ON MUSTARD OIL IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE HONBLE JAMMU & KASHMIR HIGH COURT IN CASE OF INTERNATIONAL FOREST COMPANY (SUPRA) HAS HELD THAT LESSER OUT-TURN OF SAWN TIMBER AS COMPARED TO PREVIOUS YEAR COULD NOT BE A TREATED AS A VALID GROUND FOR REJECTION OF BOOKS OF ACCOUNTS AND AS IN DICATIVE OF ANY ATTEMPT ON THE PART OF THE ASSESSEE TO DEFRAUD THE IT DEPAR TMENT. IT FURTHER HELD THAT THE YIELD WOULD VARY FROM YEAR TO YEAR DEPENDI NG UPON VARIOUS FACTORS AND YIELD OBTAINED IN ONE YEAR WOULD NOT FURNISH AN Y GUIDANCE FOR ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 13 ESTIMATING THE YIELD FOR ANY SUBSEQUENT YEAR IN ABS ENCE OF ANY OMISSION, IRREGULARITY OR OTHER DEFECT IN THE METHOD OF MAINT AINING THE ACCOUNTS OR POSITIVE EVIDENCE TO SHOW THAT ACCOUNTS DIDNT DISC LOSE THE WHOLE INCOME OF THE ASSESSEE. THOUGH THE SAID RULING HAS BEEN REND ERED IN THE CONTEXT OF SAWN TIMBER BUT THE LEGAL PROPOSITION THAT HAS BEEN LAID DOWN IN THE SAID CASE WOULD SQUARELY APPLY IN THE INSTANT CASE. THE LEGAL PROPOSITION IS THAT THE YIELD IS A FUNCTION OF VARIOUS FACTORS AND IN A BSENCE OF ANY OTHER POSITIVE EVIDENCE, MERELY ON ACCOUNT OF LOW YIELD AS COMPARE D TO PREVIOUS YEARS, THE BOOKS OF ACCOUNTS CANNOT BE REJECTED. IN THE F ACTS BEFORE US, THE CASE OF THE REVENUE RESTS ON THE SOLE BASIS THAT THE ASS ESSEE COMPANY HAS DECLARED LOWER YIELD ON MUSTARD OIL AS COMPARED TO PREVIOUS YEAR. THE PURCHASE, CONSUMPTION AND CLOSING STOCK OF MUSTARD SEEDS HAS BEEN ACCEPTED BY THE REVENUE AND THERE IS NO DISPUTE EIT HER IN TERMS OF PRICE OR QUANTITY SO PURCHASED AND CONSUMED. EVEN THE PROCE SS LOSS WHICH IS 0.95% AND WHICH HAS INCREASED BY 0.10% AS COMPARED TO LAST YEAR HAS BEEN ACCEPTED BY THE REVENUE. IN RESPECT OF METHOD OLOGY FOR DETERMINING THE EXPECTED YIELD PERCENTAGE ON THE MUSTARD SEEDS, THE ASSESSING OFFICER NOTED THAT WHENEVER ANY SELLER APPROACHES THE ASSES SEE COMPANY OR THE PURCHASES ARE MADE BY THE ASSESSEE COMPANY, A SAMPL E OF MUSTARD SEEDS IS DRAWN AND IT IS SENT TO THE LABORATORY FOR DETER MINING THE EXPECTED YIELD PERCENTAGE AND BASIS THAT, THE PRICES ARE DETERMINE D AND THE PURCHASES ARE MADE. FURTHER, THE ASSESSING OFFICER ACKNOWLEDGED THE FACT THAT THE ASSESSEE COMPANY HAS OBTAINED THE SAID LAB REPORTS IN RESPECT OF PURCHASED SO MADE DURING THE YEAR AND FURNISHED THE SAME DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS ALONG WITH PURCHASE DETAILS AND ALSO THE FACT THAT THESE LAB REPORTS DISCLOSE A RANGE OF YIELD PERCENT AGE FROM 37% TO 42%. AT THE SAME TIME, THE ASSESSING OFFICER STATED THAT THE ASSESSEE COMPANY HAS NOT ADDUCED RELEVANT EVIDENCE/PROOF TO SUBSTANT IATE ITS CLAIM. IN OUR VIEW, ONCE THE LAB REPORTS, WHICH ARE THIRD PARTY E VIDENCE IN SUPPORT OF THE ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 14 EXPECTED YIELD PERCENTAGE ON THE MUSTARD SEEDS, ARE SUBMITTED BEFORE THE ASSESSING OFFICER ALONG WITH OTHER PURCHASE DETAILS IN TERMS OF PURCHASE INVOICE, VENDORS, ETC, THE ASSESSEE COMPANY HAS DUL Y COMPLIED WITH ITS OBLIGATIONS TO JUSTIFY THE PRICE, QUANTITY AS WELL AS QUALITY OF THE MUSTARD SEED SO PROCURED DURING THE YEAR. IT IS FOR THE AS SESSING OFFICER TO EXAMINE THE SAID LAB REPORTS AND IF HE HAS ANY PRIMA FACIE CONCERN REGARDING SUCH REPORTS OR INABILITY TO DEDUCE THE CORRECT TECHNICA L POSITION ARISING OUT OF SUCH REPORTS, HE IS AT LIBERTY TO SEEK OPINION OF S UBJECT MATTER EXPERTS. HOWEVER, THERE IS NO SUCH ACTION THAT HAS BEEN TAKE N BY THE ASSESSING OFFICER. THEREFORE, IN ABSENCE OF ANY FINDINGS BY T HE ASSESSING OFFICER DISPUTING THE LAB REPORTS, THE YIELD PERCENTAGE AS DISCLOSED BY THESE REPORTS HAVE TO BE ACCEPTED. 7.1 NOW, THE NEXT QUESTION THAT ARISES FOR CONSIDER ATION IS WHERE THE YIELD PERCENTAGE AS PER LAB REPORT RANGES FROM 37% TO 42% , WHY THE FINAL YIELD PERCENTAGE AS DISCLOSED BY THE ASSESSEE IS 34.71%. IN THIS REGARD, IT WAS SUBMITTED BY THE LD AR THAT THE YIELD PERCENTAGE AS PER LAB REPORTS IS INDICATIVE OF THE POTENTIAL YIELD AND DEPENDING UPO N VARIOUS FACTORS INVOLVED IN THE PRODUCTION PROCESS AND TIMING THEREOF, IT CA N VARY. IT WAS ALSO SUBMITTED THAT WHERE THE PROCESS LOSS OF 0.95% IS A LSO TAKEN INTO CONSIDERATION WHICH IS NOT DISPUTED BY THE REVENUE, THE YIELD PERCENTAGE WOULD COME TO 35.66%. IT WAS FURTHER SUBMITTED THAT ANNUAL YIELD PERCENTAGE OF 34.71% IS A FUNCTION OF AVERAGING AND DETERMINED AS A OVERALL YIELD PERCENTAGE FOR THE PURPOSES OF DISCLO SURE AND REPORTING IN THE ANNUAL FINANCIAL STATEMENTS. HOWEVER, THE ACTUAL YI ELD WILL VARY FROM TIME TO TIME DEPENDING ON THE LOT OF MUSTARD SEED WHICH GOE S IN CRUSHING AND PRODUCTION CYCLE HAVING ITS OWN MOISTURE CONTENT, Y IELD POTENTIAL, OTHER PROCESS LOSS, ETC AND THE SAME WILL BROADLY BE IN R ANGE OF EXPECTED YIELD PERCENTAGE BUT AT THE SAME TIME, PRACTICALLY, IT IS DIFFICULT TO CARRY OUT ONE- TO-ONE CORRELATION BETWEEN THE EXPECTED YIELD AND A CTUAL YIELD OF A ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 15 PARTICULAR MUSTARD LOT AS THE SAME LOSES ITS INDIVI DUAL IDENTITY ONCE THE SAME IS STOCKED ALONGWITH OTHER LOT OF MUSTARD SEEDS. WE FIND THE SAID EXPLANATION AS A PLAUSIBLE EXPLANATION ESPECIALLY I N ABSENCE OF ANY CONTRARY MATERIAL ON RECORD. 7.2 NOW COMING TO YIELD PERCENTAGE OF 36.00% AS DIS CLOSED BY M/S POOJA INDUSTRIES AND WHICH HAS BEEN ADOPTED BY THE ASSESS ING OFFICER FOR SUBSTITUTING THE YIELD OF 34.71% AS DISCLOSED BY TH E ASSESSEE COMPANY, THE LD CIT(A) HAS GIVEN A FINDING THAT COMPLETE DETAILS ABOUT M/S POOJA INDUSTRIES AND HOW THE SAME IS COMPARABLE TO ASSESS EES CASE WAS NOT CONFRONTED TO THE ASSESSEE INSPITE OF THE LATTER RE QUESTING FOR THE SAME DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ACC ORDINGLY, SHE HAS CONFIRMED THE NON-APPLICABILITY OF SAID COMPARABLE IN THE INSTANT CASE. SIMILAR CONTENTIONS HAVE BEEN RAISED BEFORE US BY T HE LD AR AND IT WAS SUBMITTED THAT YIELD PERCENTAGE CANNOT BE COMPARED IN ABSENCE OF SPECIFIC FACTS IN CASE OF M/S POOJA INDUSTRIES WHICH WERE NE VER CONFRONTED TO THE ASSESSEE COMPANY. FURTHER, THERE IS NOTHING ON REC ORD WHICH HAS BEEN BROUGHT TO OUR NOTICE BY THE REVENUE IN TERMS OF CO MPARABILITY OF M/S POOJA INDUSTRIES AS A TESTED COMPARABLE VIS-A-VIS THE YIE LD DISCLOSED BY THE ASSESSEE COMPANY. IN LIGHT OF THAT, M/S POOJA INDUS TRIES CANNOT BE USED AS A TESTED COMPARABLE IN THE INSTANT CASE. 7.3 NOW, COMING TO APPLICABILITY OF THE YIELD PERCE NTAGE OF 34.90% AS DISCLOSED IN THE PREVIOUS YEAR AND WHICH HAS BEEN S UBSTITUTED BY THE LD CIT(A) IN PLACE OF 34.71% AS DISCLOSED BY THE ASSES SEE COMPANY FOR THE YEAR UNDER CONSIDERATION, AS WE HAVE NOTED ABOVE, T HERE ARE VARIOUS FACTORS WHICH GOES IN THE DETERMINATION OF YIELD OF A PARTI CULAR PRODUCT AND YIELD OBTAINED IN ANY PARTICULAR YEAR CANNOT ENTIRELY FOR M THE BASIS FOR THE SUBSEQUENT YEAR. IN THE INSTANT CASE, IT IS NOTED THAT THE ASSESSEE COMPANY HAS DISCLOSED A YIELD OF 33.29% IN AY 2009-10, 34.9 0% IN AY 2010-11, ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 16 34.72% IN THE YEAR UNDER CONSIDERATION AND AN YIELD OF 35.18% IN THE SUBSEQUENT AY 2012-13. THE TREND IS THUS REFLECTIVE OF THE BUSINESS BEING ACCRIED ON AND THE INDUSTRY IN WHICH THE ASSESSEE C OMPANY OPERATES AND THEREFORE, YIELD OF IMMEDIATE PAST YEAR CANNOT FORM THE BASIS FOR DETERMINATION OF YIELD FOR THE YEAR UNDER CONSIDERA TION. AT MAXIMUM, IT WOULD ACT AS A GUIDING FORCE TO DETERMINE THE RANGE OF YIELD ON PRODUCTS AND CANNOT BE SUBSTITUTED IN ENTIRETY REPLACING THE ACTUAL YIELD SHOWN BY THE ASSESSEE COMPANY ESPECIALLY IN ABSENCE OF ANY O THER CONTRARY POSITIVE EVIDENCE TO DISLODGE THE POSITION AS DISCLOSED BY T HE ASSESSEE COMPANY. 7.4 IN LIGHT OF ABOVE DISCUSSIONS AND TAKING INTO C ONSIDERATION THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE BOO KS OF ACCOUNTS CANNOT BE REJECTED AND YIELD PERCENTAGE AS DISCLOSED BY THE A SSESSEE COMPANY IS HEREBY CONFIRMED. IN THE RESULT, GROUND NO. 2 TAKE N BY THE ASSESSEE IS ALLOWED AND THE SOLE GROUND OF THE REVENUE IS DISMI SSED. 8. NOW WE COME TO GROUND NO. 3 OF THE ASSESSEES AP PEAL IN RESPECT OF DEPRECIATION CLAIM ON AC, D.G. SET, ELECTRONIC ITEM S AND WATER COOLER. THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED EXCESS DEP RECIATION ON THESE ASSETS AND HE ALLOWED DEPRECIATION @ 10% AS AGAINST 15% CLAIMED BY THE ASSESSEE COMPANY. THE LD. CIT(A) HELD THAT THE DEP RECIATION ON AC, DG SET HAS BEEN CORRECTLY ALLOWED BY THE AO @ 10% AND DEPR ECIATION @ 15% ON ELECTRONIC ITEMS HAS BEEN SENT BACK TO AO FOR VERIF ICATION. 9. THE LD AR SUBMITTED THAT THE LD. AO AND LD CIT(A ) BOTH HAVE PROCEEDED ON MISCONCEPTION OF LAW. THE LD. AO HAS S TATED THAT THE DEPRECIATION ON AC, D.G. SET, ELECTRONICS ITEM AND WATER COOLER ARE ALLOWABLE @10%, HE TREATED THE SAME UNDER THE HEAD FURNITURE AND FIXTURE AS AGAINST 15% ALLOWABLE BEING UNDER THE H EAD MACHINERY. THE SUBJECT ITEMS ARE MACHINERY AND NOT FURNITURE AND F ITTINGS AND DEPRECIATION IS ALLOWABLE @ 15% AS PER THE ACT. IN THE HEAD FUR NITURE AND FIXTURE, ONLY ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 17 ELECTRICAL FITTINGS ARE INCLUDED AND NOT ELECTRIC M ACHINERY. ELECTRIC FITTING INCLUDES ELECTRIC WIRING, SWITCH, SOCKETS OTHER FIT TINGS AND FANS. HENCE, THE LD. AO MAY KINDLY BE DIRECTED TO ALLOW THE SAME AT THE RATE OF 15% AND DELETE THE DISALLOWANCE SO SUSTAINED. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE AIR CONDITIONING UNITS, D. G SET AND WATER COOLER ARE CLASSIFIABLE UNDER THE HEAD PLANT AND MACHINERY W HICH IS ELIGIBLE FOR 15% DEPRECIATION. AS FAR AS ELECTRONIC ITEMS ARE CONCE RNED, THE LD CIT(A) HAS ALREADY AGREED WITH THE ASSESSEES CONTENTION REGAR DING CLAIM OF DEPRECIATION @ 15% AND HAS REMANDED THE MATTER BACK TO AO FOR VERIFICATION AND THUS NO GRIEVANCE LIES BEFORE US. IN THE RESULT, THE GROUND OF THE ASSESSEE IS PARTLY ALLOWED. 11. REGARDING GROUND NO. 4 IN RESPECT OF DISALLOWAN CE OF VARIOUS EXPENSES, THE AO NOTED THAT THE VOUCHER OF EXPENSES ARE NOT SUPPORTED BY PROPER BILLS AND ARE SELF MADE VOUCHERS. MAJORITY O F EXPENSES HAVE BEEN PAID BY CASH. PERSONAL INVOLVEMENT CANNOT BE RULED OUT. HENCE HE MADE 10% DISALLOWANCE ON THE EXPENSES ON ACCOUNT OF CONV EYANCE, OFFICE, STAFF, VEHICLE AND TELEPHONE AND AN AMOUNT OF RS. 71,795/- WAS DISALLOWED AND ADDED IN THE INCOME OF THE ASSESSEE COMPANY. THE LD CIT(A) OBSERVED THAT THE DISALLOWANCE HAS BEEN MADE AS EXPENSES WERE NOT PROPERLY VOUCHED AND DUE TO THE ELEMENT OF PERSONAL USE 10% OF SUCH EXPENDITURE HAS BEEN DISALLOWED WHICH IS REASONABLE AND THE SAME WAS CON FIRMED. 12. THE LD AR SUBMITTED THAT IN THE ENTIRE ORDER OF THE AO ON ALL THE DISALLOWANCE OF EXPENSE THE ONLY ALLEGATION IS PERS ONAL USE, PAYMENT MADE IN CASE AND SELF MADE VOUCHERS. ONLY ON THESE BASIS NO DISALLOWANCE CAN BE MADE WITHOUT BRINGING ANY MATERIAL, EVIDENCE, INSTA NCE OR PROOF ON RECORD. HOWEVER HE IGNORED THAT THE ASSESSEE HAS PRODUCED T HE LEDGER ACCOUNT OF EXPENSES ALONG WITH THE BILLS AND VOUCHERS. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 18 12.1 MERE SUSPICION: A BARE READING OF THE ORDER O F THE AO SHALL REVEAL THAT THE DISALLOWANCES OF EXPENSES HAVE BEEN MADE O N AD HOC BASIS, SIMPLY ON MERE SUSPICION, SURMISES AND CONJECTURES AND ON WRONG METHOD, WITHOUT VERIFYING OR LOOKING TO THE NATURE OF BUSINESS. NO SINGLE SPECIFIC INSTANCE OF ANY NATURE WHATSOEVER HAS BEEN GIVEN BY THE AO IN T HE IMPUGNED ORDER TO SUPPORT HIS CONTENTION WITH THE HELP OF DOCUMENTARY EVIDENCE THAT THE EXPENDITURES WERE INCURRED FOR NON-BUSINESS PURPOSE S, EXCESS AND ELEMENT OF PERSONAL USER ETC WERE THERE. AN ALLEGATION REMA INS A MERE ALLEGATION UNLESS PROVED. SUSPICION MAY BE STRONG HOWEVER CAN NOT TAKE THE PLACE OF REALITY, ARE THE SETTLED PRINCIPLES KINDLY REFER DH AKESHWARI COTTON MILLS 26 ITR 775 (SC), UMA CHARAN SHAW V/S CIT 37 ITR 271 (SC). ALL THE DISALLOWANCES DESERVE DELETION ON THIS SUBMISSION ALONE. 12.2 BUSINESSMAN IS THE BEST JUDGE: IT IS SETTLED THAT A BUSINESSMAN IS THE BEST JUDGE TO TAKE CARE OF ITS OWN INTEREST & TO TA KE DECISIONS AND THE AO IS NOT SUPPOSED TO INTERVENE THEREIN NOR HE CAN REPLAC E THE ASSESSEE. HERE, WHATEVER DECISIONS WERE TAKEN BY THE ASSESSEE, HAS TO BE UNDERSTOOD AS TAKEN OUT OF COMMERCIAL EXPEDIENCY. KINDLY REFER T. T. PVT LTD V/S CIT 121 ITR 551 (KAR), 139 ITR 827 (MP) JK WOOLEN MANUFACTU RERS 72 ITR 612 (SC). 12.3 WRONG BASIS AT ALL: IT IS FURTHER SUBMITTED T HAT THE LD. AO HAS TAKEN OWN IMAGINARY BASIS WHICH IS NOT A GOOD BASIS LOOKI NG TO THE NATURE OF EXPENSES OR BUSINESS OF THE ASSESSEE AND MADE HIGHE R ESTIMATED DISALLOWANCE. THE AO HAS NOT BROUGHT ANY OTHER SING LE EVIDENCE OR MATERIAL ON RECORD BEFORE MAKING DISALLOWANCE. THEREFORE, AL SO THE ENTIRE DISALLOWANCE, SO MADE MAY KINDLY BE DELETED IN FULL . AND IT IS SETTLED THAT NO DISALLOWANCE AND ADDITION CAN BE MADE WITHOUT ANY B ASIS AND MATERIAL. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 19 12.4 REASONABLE CLAIM MADE: IT IS SUBMITTED THAT L OOKING TO A TURNOVER OF MORE THAN RS.69.43 CRORE (APPROX), CLAIM OF ABOVE E XPENDITURE IS 0.10 % WHICH OTHERWISE VERY LESSER OR REASONABLE OR MEAGER LOOKING TO THE BUSINESS OF THE ASSESSEE. THUS SUCH A CLAIM TO ACHI EVE SUCH A TURNOVER IS NOT AT ALL UNJUSTIFIED WHEN THE ASSESSEE IS A DISTR IBUTER AND COMMISSION AGENT WHERE THE MARGIN OF PROFIT ALMOST FIX AND VER Y LOW. 12.5 BUSINESS PURPOSE: ALL THESE EXPENSES WERE INC URRED EXCLUSIVELY FOR THE PURPOSE OF BUSINESSES AND ARE UNDER THE PROVISI ONS OF THE ACT. ON BARE PERUSAL OF THE EXPENSES IT SHALL REVEL THAT THE EXP ENSES HAS BEEN CLAIMED FOR THE BUSINESS AND ON THESE ACCOUNT THERE IS NO E XPENSES WHICH CAN BE SAID AS PERSONAL AS WRONGLY ALLEGED BY THE AO AND L OOKING TO THE NATURE OF THE BUSINESS THESE EXPENSES ARE NOT HIGHER. THE AO BLINDLY DISALLOWANCE OF 10 % EXPENSES WITHOUT GOING ON THE FACTS, NATURE OF EXP., COMPARABLE CASES AND ALSO IGNORED THAT THE G.P. RATE WHICH IS VERY HIGHER IN THIS YEAR AS AGAINST THE LAST YEAR AND THE LD. AO HAS BLINDLY IGNORED THESE VERY VITAL FACTS AND MADE THE DISALLOWANCE WITHOUT ANY BASIS AND HENCE, THE SAME MAY KINDLY BE DELETED IN FULL. 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSED THE MATERIAL AVAILABLE ON RECORD. THE DISALLOWANCE OF EXPENSES HAS BEEN MA DE ON ACCOUNT OF NON- VERIFIABILITY OF THE EXPENSES ON AN ADHOC BASIS AND ON MERELY SUSPICION THAT THE PERSONAL ELEMENT CANNOT BE IGNORED. THERE IS N O BASIS FOR ADHOC DISALLOWANCES IN THE EYES OF LAW. FURTHER, SUSPICIO N OF PERSONAL INVOLVEMENT SHOULD BE SUPPORTED BY POSITIVE EVIDENCE WHICH IS N OT PRESENT IN THE INSTANT CASE. IN THE RESULT, THE DISALLOWANCE OF RS 71,79 5 IS HEREBY DELETED. IN THE RESULT, GROUND NO. 4 OF ASSESSEES APPEAL IS AL LOWED. ITA NO. 978 & 962/JP/16 M/S S.R. PROTEINS PVT. LTD. VS. ACIT, JAIPUR. 20 14. THE GROUND NO. 1 IS GENERAL IN NATURE AND NO ARGUME NTS HAVE BEEN TAKEN IN THIS REGARD. THE SAME IS HEREBY DISMISSED AS INFRUCTUOUS. 15. GROUND NO. 5 IS CONSEQUENTIAL IN NATURE AND NEED NO SEPARATE ADJUDICATION AND HENCE DISMISSED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/05/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 31/05/2017 SANTOSH VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S S.R. PROTEINS PVT. LTD., D-97, SHANTI SADAN AMBABARI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT/ 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, 6. XKMZ QKBZY@ GUARD FILE (ITA NO.978 & 962/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR .