Income Tax Appellate Tribunal - Jaipur
Siraigo Pharma Pvt. Ltd. , Jaipur vs Assessee on 23 April, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM
vk;dj vihy la-@ITA No. 910/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2007-08
M/s Siraigo Pharma Pvt. Ltd. cuke Dy. Commissioner of
B-18, Sardar Patel Marg, Chomu Vs. Income Tax, Central
House, Jaipur. Circle-3, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAICS 2958 J
vihykFkhZ@Appellant izR;FkhZ@Respondent
vk;dj vihy la-@ITA No. 943/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2007-08
Asstt. Commissioner of cuke M/s Siraigo Pharma Pvt. Ltd.
Income Tax, Central Vs. B-18, Sardar Patel Marg,
Circle-3, Jaipur. Chomu House, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAICS 2958 J
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Vijay Goyal (C.A.)
jktLo dh vksj ls@ Revenue by : Mrs. Rolee Agarwal (CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 09/04/2015
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 23/04/2015
2 ITA 910 & 943/JP/2012_
Siraigo Pharma P Ltd. Vs. DCIT
vkns'k@ ORDER
PER: T.R. MEENA, A.M. These are cross appeals, one by the assessee and another by the Revenue arise against the order dated 29/10/2012 passed by the learned C.I.T.(A) (Central), Jaipur for the A.Y. 2007-08. The grounds of assessee's appeal as well as the Revenue are as under:-
Grounds of assessee's appeal ITA No. 910/JP/2012 "1. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in confirming rejection of books of accounts of the assessee by applying the provision of section 145(3) of Income Tax Act, 1961.
2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in calculating the amount in his order against addition confirmed.
3. On the facts and in the circumstances of the case and in law, the ld CIT(A) erred in the confirming the trading addition of Rs. 18,71,094/- out of Rs.
61,05,371/- made by the A.O. by confirming the GP rate of 48% on declared sales of Rs. 1,55,92,447/- as against 60% applied by the ld. A.O. and 44.79% declared by the assessee."
Ground of revenue's appeal ITA No. 943/JP/2012 "(1) On the facts and in the circumstances of the case, the ld. CIT(A), Central, Jaipur has erred in reducing 3 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT the g.p. rate of 60% applied by the A.O. to 48% and thereby allowing relief of Rs. 18,71,094/- (12% x 15592447), without substantiating the reasons for allowing such relief despite the fact that he has already confirmed the rejection of book profit and books of account."
2. All the grounds of assessee's appeal as well as ground of revenue's appeal are revolving around rejection of books of account of the assessee by applying provisions of Section 145(3) of the Income Tax Act, 1961 (in short the Act) and confirming and deleting the trading addition of Rs. 18,71,094 out of Rs. 61,05,371/- made by the Assessing Officer. The ld Assessing Officer observed that the assessee is a manufacturer and trader of medicines. There was search seizure operation on 27/08/2008 in the case of Mittal Group to which the assessee belongs was carried on. The group is engaged in wholesale trading/C&F agent of medicines/pharmaceuticals. The assessee had filed return of income for A.Y. 2007-08 on 30/03/2009 declaring loss of Rs. 21,88,740/-. The case was scrutinized U/s 143(3) of the Act. Various notices were issued to the assessee from time to time. The Assessing Officer observed that the company was incorporated on 26/5/2004. Its authorized capital was 10 lacs and paid up capital was 7,76,700/- comprising of 77,670/- equity shares of Rs. 10 each. Shri 4 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT Radhey Shyam Mittal and Shri Atul Burman are Directors of company. The assessee was asked to produce the books of account consisting of cash book, ledger, general bank book, sale and purchase vouchers, expenses vouchers, stock register, during the course of assessment proceedings, which were not produced before the Assessing Officer on the pretext that there was a difference between Directors and books of account are in the possession of Shri Atul Burman and books were maintained on computer at Mumbai but assessee's attitude was non- cooperative, therefore, he made the assessment U/s 144 of the Act. The assessee had declared G.P. rate @ 62.85% in A.Y. 2005-06 on turnover of Rs. 69.54 lacs against which G.P. rate of 60% had applied in A.Y. 2006-07, under the circumstances discussed in the order of the same G.P. i.e. 60% rate was applied during the current year on account of similar facts and circumstances of the case. Thus, he estimated G.P. at Rs. 32,50,097/-, the difference worked out at Rs. 61,05,371/-. After reducing the net loss declared in the return, net addition of Rs. 39,16,631/- was made in the income of assessee by relying on the decision in the case of Awadesh Pratap Singh Abdul Rahman & Brothers Vs. CIT (1994) 76 Taxman 106 (All).
5 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT
3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the learned CIT(A), who had allowed the appeal partly by observing as under:-
"I have carefully considered the facts and circumstances of this case. First of all the issue of acceptance of additional evidence is to be decided. It may be noted that the A.O. has asked for producing of books of account during the assessment proceedings and as the books of account were not produced the A.O. applied provisions of Sec. 145(3) of IT Act and determined the income by applying GP rate of 60%. The appellant's case is that the books of accounts were with another director with whom due to some dispute the books of accounts could not be produced at the assessment stage. The appellant has also contended that the non-production of books of accounts was due to the bonafide reason as the another director based at Mumbai was having books of accounts at the assessment stage and due to the dispute the director based at Mumbai did not deliver the books of accounts. It is also stated that in other connected cases of the appellant, all requisite books of accounts have been produced and there was no reason for the appellant for not producing the books of accounts in the appellant company. On the other hand the A.O's case is that the books of accounts have not been produced in spite of so many opportunities given at the time of assessment 6 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT stage and therefore additional evidence by way of regular books of account may not be accepted at the appellant stage. Having considered the above facts, it is noticed that there was definitely some dispute between the directors on the issue of books of account. However, circumstantial corroborated facts indicate that the appellant was prevented by sufficient cause for production of books of accounts and the case of appellant is covered under clause- b of rule 46A(1) of IT Rules. Keeping in view above facts as also case laws relied upon by the appellant, the additional evidence furnished by the appellant are accepted."
4. Now the assessee as well as the revenue are in appeals before us. The Ld. A.R. for the assessee has submitted that no incriminating documents were found during the course of search. The scope of assessment U/s 153A of the Act is limited to some incriminating documents/evidence found as a result of search. The assessee filed its regular return U/s 139(1) of the Act on 31/10/2007 and notice of selection for scrutiny U/s 143(2) of the Act could be issued latest by 30/09/2008, which was not issued in the case of assessee. Therefore, the assessment of assessee is deemed as completed U/s 143(1) of the Act. After the assessment deemed completed U/s 143(1) of the Act for the year, the department carried out search and seizure operations on 7 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT 27/08/2008. In search, no any incriminating documents was found to visualize understatement of profit. Consequent to this search and seizure account, notice U/s 153A of the Act was issued for all the years on 19/02/2009. The Hon'ble Jurisdictional High court has analysed the provisions of Section 153A of the Act in detail in the case of Jai Steel (India) vs. ACIT (2013) 88 DTR (Raj.) 1. Thus the law as envisaged by the Hon'ble Jurisdictional High Court is that if no incriminating material has been found, then no addition can be made in the assessment completed U/s 153A, which has been awaited. He further relied on the following case laws:-
(i) ITAT Jodhpur 308/Jd/2013, 22nd July, 2013 93 DTR (Jd)(Trib) 1.
(ii) Marigold Merchandise (P) Ltd. Vs. DCIT, ITAT Delhi ITA Nos. 2666 & 2667/Del/2013, 27th December, 2013 (2013) 38 CCH 050 Del Trib.
(iii) Gurinder Singh Bawa Vs. DCIT (2012) 28 Taxman.com 328.
(iv) Kusum Gupta Vs. DCIT, ITA No. 4873/Del/2009, (2005-06).
(v) MFG Automobiles Ltd. Vs. ACIT ITA Nos. 4212 & 4213/Del/2011 (ITAT Delhi).
(vi) Tarannum Zafar Khan Vs. ACIT, ITA Nos. 5888 to 5890/Mum/2009.
8 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT
(vii) Vee Gee Industrial Enterprises Vs. ACIT ITA No. 1/Del/2011 & ITA No. 2/Del/2011 (ITAT Delhi).
(viii) ITA Nos. 1153 to 1159/Hyd/2012 Mir Mazharuddin, 24/01/2013 (ITAT Hyderabad).
(ix) Asha Kataria ITA Nos. 3105, 3106 and 3107/Del/2011 20/05/2013 (ITAT Delhi).
(x) Natvar Parikh & Co Pvt. Ltd. Vs. DCIT (ITAT Mumbai) ITA No. 2143/Mum/2009.
He further argued that the ld CIT(A) has admitted the additional evidence filed during the course of assessment proceedings. No defects in the books of account had been pointed out by the Assessing Officer except not maintaining the stock register. The books of account were audited by the C.A. under the Income tax Act as well as the Companies Act. The Auditors have not made any qualification in their audit report and have reported that the P&L account first give a true and fair view of the profit of the company. The purchase and sales are verifiable and payments were made through account payee cheques in mostly. The Hon'ble Rajasthan High Court in the case of Malani Ramjivan Jagannath Vs. ACIT (2009) 316 ITR 120 has held that where opening stock, purchase, sales and closing stock figures are sufficient to judge the correct income of the assessee and when there is no dispute about the sale and purchase, non-maintenance of stock register lost its 9 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT significance so far as arriving at GP is concerned. When all the data and entries made in the trading account were not found to be incorrect in any manner, there could not have been any other result except what has been shown by the assessee in the books of account. The ld AR further drawn our attention on business results from A.Y. 2005-06 to 2007-08 and argued that during the year, not only sale but GP has increased from 40.35% to 44.79%. The sales have increased more than double from A.Y. 2005-06. The assessee has been dealing in medicine and G.P. margin in each kind of medicines remains different. There is throat cut competition in the medicine business, therefore, he prayed to delete the addition confirmed by the ld CIT(A). He further argued that on non maintenance of stock register, the book result cannot be rejected U/s 145(3) of the Act for which he relied upon the decision in the case of CIT Vs. Jas Jack Elegance Exports 324 ITR 95 (Delhi), therefore, rejection of book result U/s 145(3) of the Act is not justified. He further relied upon the following case laws on this issue:-
(i) Haridash Parikh Vs. ITO 113 TTJ 274 (ITAT Jodhpur).
(ii) Avdesh Pratap Singh Abdul Rehman & Bros Vs. CIT (supra)
(iii) Ashok Refractories Pvt. Ltd. Vs. CIT (2005) 279 ITR 475 (Cal).
10 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT
(iv) ST Teresa's Oil Mills Vs. State of Kerala 76 ITR 365 (Ker.). He further clarified that there was mistake in the order of the ld CIT(A), which has been rectified by the ld CIT(A), therefore, he filed the revised form No. 36.
5. At the outset, the ld. D.R. has vehemently supported the order of Assessing Officer.
6. We have heard the rival contentions of both the parties and perused the material available on record. During the course of search, no incriminating documents were found and seized. The ld Assessing Officer rejected the book result for non-producing of the stock register but various courts has held that non-maintaining of stock register or not producing the stock register before the Assessing Officer is not sufficient ground to reject the book result U/s 145(3) of the Act. Further, the assessee company is in manufacturing of medicine where Drug Control Act also applicable. According to that Act also, he has to maintain various records in compliance of that Act. It is a fact that no adverse comment had been given by the Assessing Officer on account of any discrepancy in manufacturing of medicines on the basis of search material or any other inquiry made by him. Therefore, the lower authority is not justifying in receiving books U/s 145(3) of the Act.
11 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT 6.1 The ld Assessing Officer estimated the G.P. by applying 60% rate of total turnover whereas the assessee has shown G.P. during the year 44.79%, which has increased reasonably from the preceding year on increase sale. The ld CIT(A) has applied G.P. rate @ 48% and reduced the total addition to the tune of Rs. 4,99,081/- by rectifying the order U/s 154 read with Section 250 of the Act. The finding based on past history and not submitting the stock register before the Assessing Officer but no solid reasons have been assigned by the ld CIT(A). Both the lower authorities have not pointed out any defect in the books of account. The books of account has been audited under the Income Tax as well as Companies Law. The case law relied by the ld AR in the case of Malani Ramjivan Jagannath Vs. ACIT (supra) of the Hon'ble Jurisdictional High Court is squarely applicable. As per Income Tax law, in Section 2 (12A) books of account includes ledgers, day-books, cash books, account-books and other books, whether kept in the written form or as print-outs of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device. The Hon'ble Delhi High court in the case of CIT Vs. Jack Elegance Exports (supra) has held that no provision either in the Act or in the Rules requiring an assessee carrying business of nature, to maintain the stock register as a part of 12 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT its account has been brought to notice. The other case laws referred by the assessee on rejection of book and maintenance of stock register are also squarely applicable. Thus, we hold that the addition confirmed by the ld. CIT(A) is not justified.
6.2 The ld AR has challenged the proceeding U/s 153A of the Act in his argument and submission but no technical ground has been raised by him before he ld CIT(A) as well as before us even in additional ground of appeal. Therefore, this Bench is not required to express its opinion on this issue. Accordingly, we allow the assessee's appeal and dismiss the revenue's appeal.
7. In the result, the assessee's appeal is allowed and appeal of the revenue is dismissed.
Order pronounced in the open court on .............................
Sd/- Sd/-
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(R.P.Tolani) (T.R. Meena)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 23rd April, 2015
*Ranjan
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- M/s Siraigo Pharma Pvt. Ltd., Jaipur.
2. izR;FkhZ@ The Respondent- The DCIT/ACIT, Central Circle-3, Jaipur.
3. vk;dj vk;qDr@ CIT 13 ITA 910 & 943/JP/2012_ Siraigo Pharma P Ltd. Vs. DCIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 910 & 943/JP/2012) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar