Assistant Commissioner of Income-tax, Circle 2(1)(1), Vadodara, Vadodara V. M/s. Mega Aims, Bharuch

MA 62/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3988 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-02-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-12-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 28-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Rejection of books of accounts; Rectification of order; Opportunity of being heard; Additional evidence
• Section: 68; 144; 44AD; 254(2); 73; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM Miscellaneous Application Nos.62 & 63/SRT/2023 [Arising out of ITA Nos.722 & 723/AHD/2018] Assessment Year: (2013-14) (Physical Hearing) The ACIT, Circle – 2(1)(1), Vadodara Vs. M/s Mega Aims, B-1, Gokuldham Complex, Dahej By – Pass Road, Bharuch (Appellant) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAQFM1615F Appellant by Shri Vinod Kumar, Sr. DR Respondent by Shri P. M. Jagasheth, CA Date of Hearing 29/12/2023 Date of Pronouncement 05/02/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: By way of the these two miscellaneous applications, the Revenue has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961 (in short ‘the Act’) has crept in the order of the Tribunal dated 30.03.2023. 2. Since, the issues involved in these two miscellaneous applications, of the Revenue, are common and identical; therefore, these miscellaneous applications, have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in Miscellaneous Applications No. 62/SRT/23, for Assessment Year 2013-14, have been taken into consideration for deciding the above miscellaneous applications en masse. Page | 2 MA.62 & 63/SRT/2023 M/s Mega Aims 3. The contention raised by the Revenue in lead Miscellaneous Application No. 62/SRT/23 are as follows: “GROUNDS OF APPEAL FOR FILING MISCELANEOUS APPLICATION BEFORE HON'BLE I.T.A.T. AGAINST ORDER DATED 30.03,2023 IN I.T.A. NO. 722 &723 IN THE CASE OF M/s. MEGA AIMS FOR A.Y. 2013-14. 1. On the facts and in the circumstances of the case, Hon'ble ITAT dismissed the appeal of the revenue and partly allowed the appeal of the assessee. The Hon'ble ITAT has not given any finding, not considered the ground raised by the Revenue in respect of large number of sundry creditors with respect to Turnover as compared to last year, which was the very base of the assessment. 2. Hon'ble ITAT did not adjudicate the appeal of the revenue on the issue large amount of sundry creditors with respect to Turnover as compared to last year. Relief claimed in M.A. It is therefore prayed that the Hon'ble I.T.A.T, Surat Bench, Surat may recall its order dated 30.03.2023 in I.T.A. No. 722 & 723/SRT/2018 in the above referred case for A.Y. 2013-15, wherein the Hon'ble I.T.A.T. Surat Bench, Surat dismissed the appeal of the Revenue and partly allowed the appeal of the assessee. It is also prayed that the Hon'ble I.T.A.T, Surat Bench, Surat may kindly decide the grounds of appeal raised by the Dept on merit of the case.” 4. The Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue, argued that Tribunal has not given any finding and not considered the ground raised by the Revenue in respect of sundry creditors with respect to turnover as compared to last year, therefore, order of the Tribunal may be recalled and issue involved in Revenue`s appeal may be adjudicated again/afresh. 5. On the other hand, Shri P. M. Jagasheth, Ld Counsel for the assessee, pleaded that Tribunal has considered the ground raised by the Revenue in respect of sundry creditors with respect to turnover as compared to last year, and adjudicated the issue on merit, hence Page | 3 MA.62 & 63/SRT/2023 M/s Mega Aims Tribunal order may not be recalled, as there is no mistake apparent from record in the findings of the Tribunal. 6. We have heard both the parties and perused the material available on record. We note that Tribunal has adjudicated the issue involved in Revenue`s appeal, observing as follows: “13. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Before us, the assessee submitted the copy of income tax return for the AY.2013-14, which is placed at paper book page no.74, and also submitted the computation of total income of assessee and audit report which is placed at paper book page nos.75. The assessee also submitted the bank statements/ledger account, wherein receipts from customers/booking advance from customer have been stated. Besides, the Ld. Counsel submitted the analysis of the net profit of the assessee, which is placed at paper book page no.232, and the same is reproduced below: With help of the above chart of net profit ratio, the ld Counsel stated that net profit estimation for assessment year 2013-14 should be at the rate of 10.31% before remuneration and interest to partners and net profit estimation for assessment year 2014-15 should be at the rate of 13.46% before remuneration and interest to partners. 14. The Ld. Counsel further pointed out that ld CIT(A), has taken into account unsecured loan interest for net profit estimation which gives unrealistic net profit ratio for both the assessment years. Hence, ld Counsel contended that net profit ratio at the rate of 15% taken by ld CIT(A) after considering the receipts from customers/booking advances, should not be relied for estimation purposes. We agree with the plea taken by Ld. Counsel that receipts from customers/advance booking amount should not be taken into account for the purpose of computation of estimated profit. The agreed sale consideration has already been considered as part of Page | 4 MA.62 & 63/SRT/2023 M/s Mega Aims turnover by assessee, thus advance received from customers or booking advance should not be added again in the turnover, as it would amount to double addition in turnover, which is not acceptable. 15. We note that in the assessee’s case under consideration, the Ld. CIT(A) has rejected the books of accounts by exercising his co-terminus power and estimated the net profit @ 15% on Turnover. We note that ld CIT(A) used the turnover figure of the assessee from audit report of the assessee, for estimation of net profit. Such audit report was available before the assessing officer during the assessment stage, hence no any additional evidence have been used by the Ld. CIT(A) in estimating the profit of the assessee. Therefore, we note that there is no violation of Rule 46A of the Rules, as alleged by ld DR for the Revenue. 16. Learned DR also argued that Ld. CIT(A) ought to have considered separately the unexplained cash deposit of Rs.1,84,97,600/- and the same should not be merged with turnover. We note that once the books of accounts are rejected then there should not be other line by line addition, except estimation of profit, for that reliance can be placed on the judgment of Hon`ble Karnataka High Court in the case of Bahubali Neminath Muttin, [2016] 73 taxmann.com 100 (Karnataka), wherein, it was held that where books of account of assessee had been rejected by assessing authority, same books of account could not be relied upon in an addition on account of trade creditors and also for arriving at closing stock. Therefore, we do not agree with the plea taken by ld DR for the Revenue to the effect that there should be separate addition on account of unexplained cash deposit of Rs.1,84,97,600/-. 17. We note that after rejection of books of accounts of the assessee, the net profit ratio (estimation) worked out by ld CIT(A) is not correct and for that we have pointed out the reasons which are mentioned in para nos. 13 and 14 of this order. No doubt estimate of the profit can be resorted to in these types of cases but the estimate and that too at a particular percentage or fraction of percentage which ld CIT(A) has adopted has to be based on sound reasoning in comparison with the past results as well as comparable cases. Without this the estimation so made cannot be said to be valid estimation. We note that in the assessee`s case under consideration, the ld CIT(A) has not demonstrated comparable cases except to make a general statement and ld CIT(A) has also failed to take into account the average past profits/results of the assessee for the purpose of making profit estimation. It is well settled that in a best judgment assessment there is always a certain degree of guesswork. No doubt the authorities concerned should try to make an honest and fair estimate of the income even in a best judgment assessment and should not act totally arbitrarily. Department must act judiciously, while estimating net profit and must be guided by judicial consideration and by rule of justice, equity and good conscience. And also that there must be honest and fair estimate of the proper figure of assessment, for which consideration of local knowledge and repute, besides the previous returns an assessment of the assessee concerned, and all other Page | 5 MA.62 & 63/SRT/2023 M/s Mega Aims matters must be taken into account for fair and proper estimate which of course, would fall in the category of guesswork, but a honest guesswork. 18. Now, we shall take the arguments advanced by the Ld. Counsel for the assessee. The Ld. Counsel submitted that net profit estimation by the Ld. CIT(A) is arbitrary and it is neither based on accounting principles nor based on taxation principles. While estimating the net profit, the Ld. CIT(A) has considered the receipts/booking advance received from the customers. The advance/booking advance received from customers should not be the Turnover of the assessee and it should not be considered in the estimation. We note that the Co-ordinate Bench of ITAT, Surat in the case of Shah Virchand Govanji Jewellers Pvt. Ltd., in ITA Nos. 175 & 176/SRT/2020, order dated 12.09.2022, observed in para 12 of its order that once the Assessing Officer has accepted the sale against the advance of previous year, the assessee has offered due tax thereon, no addition against the advance was liable to be added. The finding of the Coordinate Bench, is reproduced below: “12. We have considered the rival contentions of both the parties and have gone through the orders of the lower authorities carefully. We have also deliberated on various case laws relied by the ld. AR of the assessee. We find that during the assessment, the Assessing Officer noted that assessee has shown to have received advances from customers of Rs. 5308928/-. The assessee was issued show cause notice to furnish the complete details including name, address and PAN number of such customers. The assessee furnished list of such customers, however, the complete address and PAN number was not furnished. The Assessing Officer noted that the assessee has furnished confirmation of Patel Prakash Bhai Maganbhai of Daman for Rs. 115975/- and no confirmation or PAN number with regard to other customers were furnished, the Assessing Officer treated the advances of Rs. 4890672/- as unexplained cash credit and added under Section 68 of the Act. Before the ld. CIT(A), the assessee made similar submission as made before us, which we have recorded above. The ld. CIT(A) after considering the submission of assessee noted that the customers’ advances received in the current assessment year were duly adjusted against sales in subsequent assessment years. It was also noted that majority of the advances in the current year i.e. to the extent of 89% were adjusted against the sales in succeeding assessment year i.e. in A.Y. 2011-12. On the basis of such observation, the ld. CIT(A) held that the fact do not warrant the treatment of customers advance as unexplained cash credit, merely for nonsubmission of full address and PAN, when facts clearly indicates that such advances are duly recorded in the books of account as sales turnover in subsequent year. The Assessing officer accepted in the assessment order that none of the advances were outstanding up to the date of assessment order. Before us, the ld. AR vehemently submitted that in the business of jewellery, the customers made advances and details of such advances in the form of chart from assessment year 2009-10 to 2014-15, indicating 3.6 to 5.5% of the total turnover was shown in the balance sheet as customers’ advance. We find that similar facts were brought in the notice of ld. Page | 6 MA.62 & 63/SRT/2023 M/s Mega Aims CIT(A), which is not converted before us. We further find that the Assessing Officer has not made any investigation on the address furnished by assessee. There is no allegation of Assessing Officer that such person is not available at the given addresses. The Hon’ble Supreme Court in PCIT Vs Montage Enterprises P Limited (supra) held that where the High Court upheld the order of Tribunal in deleting the addition made under Section 68 in respect of trade advances on the ground of that the said advances were adjusted against sales made in the subsequent assessment years, the special leave filed against the said decision was to be dismissed. The Hon’ble Kolkata High Court in PCIT Vs Dutta Automobiles P Limited (supra) also held that where a Tribunal recorded finding of find that money in question was advance deposit received from customers on account of sale of motor cycle, the assessee being a dealer in automobiles, and whenever sale took place, within one or two months, the said deposits were adjusted against sale price of motorcycle, Section 68 would not apply. We find that Hon’ble Jurisdictional High Court in CIT Vs. Ayachi Chandrashekhar Narsangji (supra), though, on the context of repayment of loan in subsequent year, also held that when the department had accepted repayment of loan in subsequent years, no addition was to be made in the current year on account of cash credit. At the cost of repetition, we may mention that once the Assessing Officer has accepted the sale against the advances of previous year and the assessee has offered due tax thereon, no addition against the trade advance was liable to be added. With the aforesaid additional observation, we affirm the order of ld. CIT(A). In the result, ground No. 2 of appeal raised by revenue is also dismissed.” 19. We note that the Co-ordinate Bench of ITAT, Ahmedabad in the case of Greenfield Reality P. Ltd, in IT(SS)A Nos. 289, 290, 291 and 292/AHD/2018, order dated 21.02.2020, held as follows: “19. It is pertinent to note that that section 144 would suggest that in order to estimate income, learned Assessing Officer has to exercise his discretion which should be in consonance with best of his judgment. We are conscious of the fact that in various authoritative pronouncements, it has been propounded that in making a best judgment assessment, the Assessing Officer must not act dishonestly or vindictively or capriciously. He must make, what he honestly believe to be a fair estimate of the proper figure of assessment and for this purpose he must be able to take into consideration, local knowledge, reputation of the assessee about his business, the previous history of the assessee or the similarly situated assessee. It is also pertinent to mention that judgment is a faculty to decide matter with wisdom, truly and legally. Judgment does not depend upon the arbitrary, caprice of an adjudicator, but on settled and invariably principles of justice. Thus, in a best judgment, even if, there is an element of guess work, it should not be a wild one, but shall have reasonable nexus to the available material and circumstances of each assessee. 20. During the course of hearing, we have confronted the ld.counsel for the assessee to show the basis for estimating income at 8%. Similarly, we have confronted the ld.CIT-DR as to how the figure of 20% should be taken up. The ld.counsel for the assessee drew our Page | 7 MA.62 & 63/SRT/2023 M/s Mega Aims attention towards page nos.50-51 of the paper book wherein the assessee has kept the details of receipts received through account payee cheque as well as received cash in the booking of flats as well as shops. In the case of Koshor Mohanlal Telwala (supra) the Tribunal has observed that 8% profit offered by the assessee on the alleged gross receipts of on-money received in cash is fair and reasonable. This figure was construed as fair and reasonable by taking guidance from section 44AD of the Act, wherein it was provided by the Legislature that in case an assessee is engaged in civil construction, and if gross receipts remains under a particular slab, then such assessee needs not to maintain books of accounts, and its profit can be assumed at 8%. Though this special provision is not applicable in the present case, because gross receipts exceeded the turnover provided under section 44AD, but again we are required to find out a reasonable percentage of income which could have been alleged as earned by the assessee out of such gross receipts. This formation of opinion at the end of the Tribunal met the approval of Hon’ble Gujarat High Court in the case of Koshor Mohanlal Telwala (supra). As against this, the AO has not collected any data either from other assessees who are engaged in this line of business, and who have developed identical projects. We have perused the finding of the ld.CIT(A) also, but the ld.CIT(A) has also not mentioned any attending circumstances for harbouring a belief that 20% could have been earned from this activity. Thus after taking guidance from the judgment of Hon’ble Gujarat High Court in the case of Koshor Mohanlal Telwala (supra), we deem it proper that the assessee has rightly disclosed the profit element embedded in the gross profit at 8%. Accordingly, we allow the ground of appeal raised by the assessee, and hold that profit which has been directed to be adopted by the ld.CIT(A) at 20% of the alleged turnover should be taken at 8%. The income of the assessee is to be computed thereafter. Consequently, ground no.2 and 3 raised by the Revenue in the Asstt.Years 2012-13, 2013-14 and 2014-15, and ground nos.1 to 3 in the asstt.Year 2015-16riased by the Revenue are rejected.” 20. We note that ld CIT(A) has discussed the comparable cases in his order as follows: “5.5 As per the decisions of different Courts / Tribunals, the rate of profit in the line of business in which the assessee is operating, varies in the range of 8% to 15%. Few of such decisions are listed below: Sr. No. Citation Rate of N.P. Determined Nature of business i) Jay Builder -33 taxmann.com 62 (Gujarat) : 15% of On-Money Builders ii) H.S. Builders - 86 Taxmann 214 (Jaipur) (Mag) : 6% Builders and Developers Page | 8 MA.62 & 63/SRT/2023 M/s Mega Aims iii) CIT Vs. Chandrika Towers -275 ITR 173 (MP) : 8% Builders iv) Nandi Housing Pvt. Ltd. Vs. DCIT- 80TTJ750(Bang.) : 8% Builders v) Kishor Telwala V. ACIT - 64 TTJ 543 (Ahd.) : 8% of gross receipt including on- money Builders and Developers 5.6 ITAT Ahmedabad in the case of Kishor Mohanlal Telwala Vs ACIT [1999] 107 TAXMAN 86 (Ahd.) (Mag.) have held that what was assessable was a reasonable amount of profit which assessee could have made and such profit at 8 per cent offered by assessee on total receipts was fair and reasonable. It was held by the Tribunal as under:- "Thus, what can be added as the undisclosed income of the assessee under section 158BC, is a reasonable amount of profit which the assessee could have earned by charging "on money" in respect of flats and the Mumbai Bench of the Tribunal in the case of Mrs. Mehroo N. Irani in ITA No. 1140/Bom/89 has taken the view that when a person is found to have been engaged in building construc-tion activity and has received unaccounted money, what is re-quired to be taxed is not the receipt but only 5 per cent of the receipt which is to be taken as a net profit. As against the above decision the assessee has himself offered 8 per cent profit on the total receipts which should be considered fair and reason-able." 5.7 Hon'ble High Court of Madhya Pradesh in the case of CIT Vs Chandrika Towers[2005] 275 ITR 173 (MP) have also upheld Net Profit rate of 8% in case of builders. I am also in agreement with the Authorized Representative that ITAT, Jaipur in the case of H.S. Builders Vs ITO (1996) 86 Taxmann 214 (Jaipur-Mag) accepted the Net Profit rate of 6% considering the past history of the case. The head note of the case reads as under:- Section 145(1) of the Income-tax Act, 1961 - Method of accounting - Estimation of profits - Assessment year 1991-92 - Assessee, carrying on construction business, declared net profit of 5 per cent on gross receipts - Assessing Officer applied rate of 7 per cent - Commissioner (Appeals) applied 10 per cent rate relying on a case purported to be comparable and by generalizing that normal rate of profit in construction business was 10 per cent - In the preceding years rate of 6 per cent was applied in assessee's own case - Whether history of assessee's case itself was a guide in applying rate of profit and, therefore, Commissioner (Appeals) was not justified in enhancing rate - Held, yes” 21. We note that comparable cases and instances discussed by ld CIT(A) in his order state that net profit ratio ranges between 6% to 15% in similar business. However, we note that ld CIT(A) took highest net profit Page | 9 MA.62 & 63/SRT/2023 M/s Mega Aims ratio at 15% which is unreasonable. Based on the factual position narrated above, we are of the view that estimation made by ld CIT(A) is not based on sound reasoning in comparison with the past results as well as comparable cases, discussed above. Hence, we are of the view that for assessment years 2013-14 and 2014-15, the net profit ratio on turnover should be at 11% and 14% before remuneration and interest to partners, respectively, on turnover, would be fair and reasonable. Therefore, we direct the assessing officer to estimate the net profit on turnover for assessment years 2013-14 and 2014-15, at the rate of 11% and 14%, respectively, before remuneration and interest to partners. 22. In the result, appeals filed by the Revenue (ITA Nos. 722/SRT/2018 & 723/SRT/2018) are dismissed, whereas appeals filed by the Assessee (ITA Nos. 750/SRT/2018 & 751/SRT/2018) are partly allowed.” 7. From the above findings of the Tribunal, it is vivid that Tribunal has given finding on merit, and Tribunal has considered all the grounds raised by the Revenue in respect of sundry creditors with respect to turnover, as compared to last year, which was the very base of the assessment, hence order passed by the Tribunal does not contain mistake apparent from record. The Para Number 10 of the Tribunal Order deals with sundry creditors and advances received by the assessee, thus issue in respect of sundry creditors have been adjudicated by this Tribunal. In the assessee`s case, the books of accounts were rejected by the assessing officer and profits were estimated. The lower authorities have estimated the profit at higher side, therefore Tribunal has estimated the profit at a reasonable rate, hence, we note that Tribunal has considered all the grounds raised by the Revenue and adjudicated the Revenue`s appeal on merit, considering all the grounds raised by the Revenue. 8. Let us consult the provisions of section 254(2) of the Act, (which deals with rectification of mistake), which reads as follows: “Orders of Appellate Tribunal. “254. (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to Page | 10 MA.62 & 63/SRT/2023 M/s Mega Aims rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer. Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard : [Provided further that any application filed by the assessee in this sub- section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]” 9. Having gone through sub-section 2 of section 254 of the Act, as noted above, we observed that “any mistake apparent from the record” can be rectified. The plain meaning of the word ‘apparent’ is that it must be something which appears to be ex facie and incapable of argument and debate. Thus, section 254(2) of the Act does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. Therefore, amendment of an order under section 254(2) of the Act, does not mean entire obliteration of order originally passed by the Tribunal and its substitution by a new order of Tribunal, this is not permissible under section 254(2) of the Act. The Power to rectify an order, under section 254(2) of the Act, is extremely limited and it does not extend to correcting errors of law, or re-appreciating factual findings. In these circumstances, we note that there is no mistake apparent on record, in the order of the Tribunal; hence we dismiss the miscellaneous application filed by the Revenue. 10. Since we have adjudicated the issue by taking the Revenue`s lead Miscellaneous Application No. 62/SRT/23, the contention raised by the Revenue and facts in Miscellaneous Application No. 63/SRT/23, are similar and identical. Accordingly, our observations, Page | 11 MA.62 & 63/SRT/2023 M/s Mega Aims made in Miscellaneous Application No. 62/SRT/23, shall apply mutatis mutandis to the aforesaid other Miscellaneous Application No. 63/SRT/23 also. 11. In the result, both the Miscellaneous Applications filed by the Revenue, are dismissed. Order is pronounced on 05/02/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 05/02/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat