Gujarat High Court
Commissioner Of Income Tax -Vi vs Inducto Ispat Alloys Ltd on 6 August, 2014
Author: M.R. Shah
Bench: M.R. Shah, K.J.Thaker
O/OJCA/387/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 387 of 2014
In
STAMP NUMBER NO. 1921 of 2014
With
TAX APPEAL (STAMP NUMBER) NO. 1921 of 2014
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COMMISSIONER OF INCOME TAX -VI....Applicant(s)
Versus
INDUCTO ISPAT ALLOYS LTD....Respondent(s)
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Appearance:
MR MR BHATT, SR. ADVOCATE, with MRS MAUNA M BHATT, ADVOCATE
for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 06/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. Present application, under Section 5 of the Limitation Act, has been preferred by the applicant-appellant, i.e. Commissioner of Income Tax-VI, Ahmedabad, to condone the delay of 58 days in preferring the appeal against the judgment and order passed by the learned ITAT, Dated : 05.09.2013, in ITA No. 2784/Ahd/2006, for the A.Y. 2003-04, by which the learned Tribunal has partly allowed the said appeal preferred by the applicant-appellant and has restricted the addition to 10 per cent of the unaccounted sales, i.e. Rs.30,53,238/-.
Page 1 of 6O/OJCA/387/2014 ORDER 2. Before considering to issue Notice /
Rule upon the Respondent-Assessee to condone the delay, we have though it fit to consider, as to whether, even prima facie, there is any merit in the appeal so that if ultimately it is found that there is no merit in the appeal, to issue Notice / Rule upon the Respondent-Assessee and to call upon it and to condone the delay, and thereafter, to dismiss the appeal, it will not only be exercise in futility, but, it will also unnecessary burden the Respondent-Assessee with the legal expenditure etc.. Therefore, we have heard Mr. M.R. Bhatt, learned Counsel appearing on behalf of the applicant-Revenue, on whether, prima facie, there is any merit in the appeal or not?
3. On considering the impugned judgment and order passed by the learned Tribunal, we are of the opinion that, as such, there is no merit in the appeal. It is required to be noted that the Respondent-Assessee is engaged in the business of manufacturing M.S. Ingots from melting scrap. It filed its return of income for the assessment year under consideration, declaring total income at Rs. 'Nil' on account of loss. The case of the Respondent-assessee was, therefore, selected for scrutiny. That, during the course of assessment Page 2 of 6 O/OJCA/387/2014 ORDER proceedings, the AO noted that the Central Excise Department had conducted survey on 17.07.2002 and had found shortage of stock valued at Rs.3,05,32,388/-. He also, further, noted that the Addl. Commissioner of Excise in its order dated 30.09.2004 has given a finding that the total unaccounted sales were to the tune of Rs.3,05,32,388/-. The learned AO, therefore, considered the Books of Accounts of the assessee to be incomplete and not reliable and accordingly rejected the Books of Accounts under Section 145 of the Act. The AO, further, noted that the Auditor had set out in the Audit Report that the management has not conducted any physical verification of the inventory during the year in respect of finished goods, spares, stores and raw-materials, and therefore, the Auditor stated that he was unable to comment on the reasonability and adequacy of such verification.
The AO, accordingly, rejected the Books of Accounts and made the additions of
Rs.3,05,32,388/- as unaccounted sale and framed assessment under Section 145(3) of the Act vide order dated 29.03.2006 and the total loss was determined at Rs.70,19,220/-. That, being aggrieved and dissatisfied by the order of the AO, the Respondent-Assessee preferred appeal before the learned CIT(A) and the learned CIT(A) partly allowed the appeal preferred by the Page 3 of 6 O/OJCA/387/2014 ORDER Respondent-assessee, directing the AO to adopt the average average GP rate of last three years for applying GP rate on said unaccounted sales and addition to that extent may be treated as confirmed, and thereby, deleted the addition amounting to Rs.2,99,37,006/- out of Rs.3,05,32,388/ in respect of unaccounted sales. Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), the Revenue preferred the appeal before the learned Tribunal and by the impugned order, the Tribunal has partly allowed the said appeal preferred by the Applicant-Revenue, however, with a direction that the addition be restricted to 10% of the unaccounted sales, i.e. Rs.30,53,238/-.
4. Feeling aggrieved and dissatisfied with the order passed by the learned Tribunal in restricting the addition to 10 per cent of the unaccounted sales, the applicant-Revenue has preferred the present appeal before this Court. There is a delay in preferring the appeal, and therefore, the applicant-Revenue has preferred the present application to condone the delay.
5. Heard, Shri. M.R. Bhatt, learned Counsel appearing on behalf of the Applicant-Revenue. Mr. Bhatt is not in a position to dispute that, as such, the AO was not justified in considering the Page 4 of 6 O/OJCA/387/2014 ORDER entire value of the unaccounted stock as sales of the Respondent-assessee and in considering the full value as income. In view of the above, now, the question which is required to be considered is whether the learned Tribunal is right in restricting the addition to 10% of the unaccounted sales, i.e. Rs.30,53,238/-. It is required to be noted that in totality of the peculiar facts and circumstances of the case, the learned Tribunal has thought it fit to exercise the discretion and to make the lump-sum addition. The learned Tribunal has also noted that even during the immediately preceding assessment year, there was no gross profit. Considering the aforesaid facts and circumstances, when the learned Tribunal has exercised discretion and has directed to restrict the addition to 10% of the unaccounted sales, i.e. Rs.30,53,238/-, it cannot be said that the learned Tribunal has committed any error or any substantial question of law arises in the present appeal.
6. Under the circumstances, when there is no merit in the appeal, to issue Notice / Rule in the present application upon the Respondent- assessee, and thereafter, to condone the delay and then dismiss the appeal, which has no merit, as observed herein above, same will be an exercise in futility and even it would burden the Page 5 of 6 O/OJCA/387/2014 ORDER Respondent-assessee with unnecessary legal expenditure etc..
7. Under the circumstances, present application for condonation of delay is DISMISSED and consequently, the Tax Appeal will not survive and it also stands DISMISSED.
(M.R.SHAH, J.) (K.J.THAKER, J) UMESH Page 6 of 6