Income Tax Appellate Tribunal - Jaipur
Vaibhav Global Ltd., Jaipur vs Department Of Income Tax on 2 August, 2016
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM
vk;dj vihy la-@ITA No. 805/JP/2014
fu/kZkj.k o"kZ@Assessment Year : 2007-08
A.C.I.T. cuke M/s Vaibhav Global Ltd.,
Circle-5, Jaipur. Vs. K-6B, Fatehtiba, Adarsh Nagar,
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACV 4679 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri Rajendra Singh (Addl.CIT)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.G. Mundra (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 14/07/2016.
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 02/08/2016.
vkns'k@ ORDER
PER: LALIET KUMAR, J.M. This is an appeal filed by the revenue against the order dated 12/09/2014 of the learned C.I.T.(A)-II, Jaipur for A.Y. 2009-10. The effective ground of the appeal is as under:-
"On the facts and in the circumstances of the case and in law the ld CIT(A) has erred in:-2 ITA No. 805/JP/2014
ACIT Vs M/s Vaibhav Global Ltd.
"(i) Whether on the facts and in circumstances of the case and in law the Ld. CIT (Appeals) has erred in deleting the addition of Rs.41,63,703/- in spite of fact that the addition was made in view of CBDT instruction No. 02/2008 dated 22/02/2008."
2. Brief facts of the case are that the assessee company derived income from manufacturing and export of gems stones, diamonds and studded jewellery. The assessee filed its return of income on 25/10/2007 declaring total income of Rs. 3,07,95,460/-. The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The ld Assessing Officer observed that there are 100% Export Oriented Unit (EOU) and DTA units of the assessee company. The assessee claimed deduction U/s 10A for its units situated in SEZ Mumbai and U/s 10B for 100% EOU situated at Jaipur. Apart from it one DTA unit situated at Jaipur and is engaged in business of color gems stones. The other DTA unit is stated in Mumbai and is engaged in the business of trading of diamonds. 2.1 For the assessment year 2007-08, the ld Assessing Officer passed an assessment order and have made a trading addition of Rs. 1,65,89,139/- on the basis of CBDT circular No. 02/2008 dated 22/2/2008. However, the ld CIT(A) on appeal had granted relief of Rs. 1,62,02,059/- to the assessee. Against that the revenue has filed the 3 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
appeal and the Tribunal vide order dated 25/2/2011 has confirmed the order passed by the ld CIT(A) with the following direction:-
"These findings of ld. CIT (A) are finding of fact. Therefore, we are of the considered view that the finding of ld. CIT (A) deserves to be upheld. The ld. CIT (A) has ascertained that Board instructions are not applicable for the year under consideration. It was further noted that even in Board Instructions, no such instruction has been given that profit @ 6% has to be taken on the total turnover shown by assessee as it has been stated that where assessee voluntarily shown 6% or more profit on diamond that would be accepted. It does not mean that Board has instruction to apply 6% N.P. rate blindly. Books of account are audited. Each and every aspect has been clarified by the Auditor. Quantitative details are also maintained. All the purchases and sales are vouched. There is no material on record that assessee has suppressed its sales or has received money back from its customers on account of purchases. Therefore, we are of the view that ld. CIT (A) was justified in applying g.p. rate of 2.6% against 2.46% as there were certain defects on which g.p. rate of 0.14% was enhanced. We further noted that similar additions were made for earlier year also and they have been deleted by the Tribunal. Copies of orders of the Tribunal are placed on record. In view of these facts and circumstances and in view of the reasoning given by ld. CIT (A), we confirm his order in this respect."4 ITA No. 805/JP/2014
ACIT Vs M/s Vaibhav Global Ltd.
2.2 The ld Assessing Officer after recording the reasons for reopening, issued earlier notice U/s 148 of the Act on 26/3/2012, which was duly served upon the assessee. After the reasoning given by the ld Assessing Officer, as mentioned in the assessment order, which is as under:-
"The assessee claimed deduction u/s 10A for its units situated in SEZ Mumbai and u/s 10B for 100% EOU situated at Jaipur. Apart from it one DTA unit situated at Jaipur and is engaged in business of color Gem Stones. The other DTA unit is situated in Mumbai and is engaged in the business of trading of Diamonds. After verification it was found that in respect of DTA, Mumbai turnover of this unit was Rs.39,89,47,504/-(Rs.27,64,85,644+ inter unit sale of Rs.12,24,61,860/-) but the assessee has shown the turnover of Rs.27,64,85,644/- and the assessee has proposed for application of NP rate of 6% on turnover of Rs.27,64,85,644/- only, while making the assessment 6% of NP was applied on declared turnover of Rs.27,64,85,644/-. This rate of NP is also applicable on the inter unit sale turnover of Rs.12,24,61,860/- which works out to Rs.73,47,711/-. Thus income was under assessed by Rs.73,47,711/-.
I have therefore, reason to believe that on account of failure on the part of the assessee to disclose fully and truly all material facts income amounting of Rs.73,47,711/- has escaped assessment within the meaning of section 147."5 ITA No. 805/JP/2014
ACIT Vs M/s Vaibhav Global Ltd.
The assessee was called upon to given reply and thereafter the ld Assessing Officer have determined the market value of the goods or service (diamond) for the purposes of Section 80IA(8) of the Act after calculating the profit on the NP rate of 6% in view of the instruction in CBDT circular. The relevant paragraph is as under:-
"I have considered the facts and circumstances of the case and the submissions of the assessee. The assessee has not maintained any quantitative or qualitative details of opening stock and closing stock etc. and has not maintained any day-to- day stock register or manufacturing register etc. as discussed in preceding paras of this order. The valuation of closing stock shown by the assessee is also not reliable as the assessee had valued the opening and closing stock at different rates. Looking to all these defects the assessee's books of account can't be accepted as complete and correct and therefore, the true profits of the firm can't be deduced and hence provisions of section 145(3) are clearly applicable in the case of assessee. The assessee has shown GP rate of 2.46% on turnover of Rs.27,64,85,644/- in respect of Mumbai DTA Unit engaged in trading of Diamonds.
Considering the submission of the assessee and as the assessee is engaged in trading of diamonds, therefore, in view of CBDT Instruction No 02/2008 dated 22.2.2008, an NP rate of 6% is applied on its turnover.6 ITA No. 805/JP/2014
ACIT Vs M/s Vaibhav Global Ltd.
The assessee has shown turnover of Rs.12,24,61,860/- and application of 6% NP result would give Net profit of Rs.73,47,711/- which is added to the total income of the assessee.
3. Being aggrieved by the order of the ld Assessing Officer, the assessee carried the matter before the ld CIT(A), who had opined the reopening of the assessment proceedings U/s 147 and 148. However, in respect of ground No. 3 of the appeal, which is as under:-
"3. That the Ld. Assessing Officer is also wrong and has erred in law in holding that inter unit transfers in DTA Mumbai aggregating to Rs. 12,24,61,860/- is turnover of appellant company and applying 6% N.P. thereon by wrongly applying CBDT instruction No. 2/2008 dated 22/2/2008 and thereby making an addition of Rs. 73,47,711/- in the total income of assessee."
The ld CIT(A) has determined the profit and gains of EOU unit at Jaipur U/s 10B by calculating the market value of the goods i.e. at 1.026% of Rs. 12,24,61,860/-. The relevant paragraph of the ld CIT(A)'s order is as under:-
"5.3.2 In this case too, goods (diamonds) held for the purposes of business, have been transferred by the DTA, Mumbai 7 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
(conducting domestic business) to the EOU unit which is eligible for exemption u/s 10B. In this case, the consideration for the inter unit transfer as recorded in the books of the EOU unit is the purchase price of the DTA unit. This purchase price of the DTA Mumbai does not correspond to the market value of goods (diamonds) for the EOU unit, on the date of transfer. The market value of such goods would be the consideration at which the DTA unit sells the goods to other customers, which would include the Gross Profit element of DTA Mumbai, as well. The gross profit rate for the DTA unit has already been upheld by the ITAT to be 2.6%. Therefore, for the purposes of deduction u/s 10B, the profits and gains of the EOU unit at Jaipur shall be computed as if the transfer has been made at the market value of goods i.e. at 1.026% of Rs. 12,24,61,860/-. (= Rs. 12,24,61,860/- + 2.6% of Rs. 12,24,61,860/-). Consequently, the (exempted) profit of the EOU unit would decrease and the profit of the DTA unit in Mumbai would increase by 2.6% of Rs. 12,24,61,860/- = Rs. 31,84,008/- . This increase in profit of Rs. 31,84,008/- of DTA Mumbai is taxable in the hands of the appellant. Therefore, addition to the extent of Rs. 31,84,008/- is sustained and the balance amount is deleted. This ground is partly allowed."
4. Now the revenue is in appeal before us. The ld Sr.DR has submitted that the assessee has proposed NP rate on turnover of Rs. 27,64,85,664/- and the ld Assessing Officer has applied the same NP rate to the inter unit 8 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
sale of Rs. 12,24,61,860/-. It was further contended that the market value U/s 10B is required to be arrived in terms of the principle laid down U/s 10B of the Act. Section 10B of the Act provides as under:
"SPECIAL PROVISIONS IN RESPECT OF NEWLY ESTABLISHED HUNDRED PERCENT- EXPORT-ORIENTED UNDERTAKINGS.
10B (1) Subject to the provisions of this section, a deduction of such profits and gains as are derived by a hundred percent export-oriented undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or things or computer software, as the case may be, shall be allowed from the total income of the assessee:
Provided that where in computing the total income of the undertaking for any assessment year, its profits and gains had not been included by application of the provisions of this section as it stood immediately before its substitution by the Finance Act, 2000, the undertaking shall be entitled to the deduction referred to in this sub-section only for the unexpired period of aforesaid ten consecutive assessment years:
Provided further that for the assessment year beginning on the 1st day of April, 2003, the deduction under this sub- section shall be ninety per cent. of the profits and gains derived by an undertaking from the export of such articles or things or computer software:
Provided also that no deduction under this section shall be allowed to any undertaking for the assessment year 9 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
beginning on the 1st day of April, 2012 and subsequent years.
Provided also that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sub-section (1) of section 139."
It was submitted that the applicability of 2.6% G.P. in respect of DTA unit of Mumbai on the basis of the earlier order of the Tribunal was not correct and the Tribunal in its order has mentioned "all purchases and sales are vouched, there is no material on record that the assessee has suppressed its sale or has received money back from its customer on account of purchasers." In view of the above findings recorded by the Tribunal, the benefit of the earlier order of applicability of GP @ 2.6%, in our view cannot be extended.
5. On the other hand, the ld AR of the assessee has submitted that the case of the assessee is covered by the order passed by the Hon'ble Tribunal dated 25/2/2011 and therefore, the ld CIT(A) was correct in partly allowing the appeal of the assessee.
6. We have heard the rival contentions of both the parties and perused the material available on the record. As per Section 10B(8) of the Act, if any goods or services are transferred as recorded in the accounts 10 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
of the eligible business, does not correspond to the market value of the goods or services then the profit and gain of such eligible business shall be computed at the market value of such goods or services as on that date. In our view, the ld CIT(A) should have endeavoured to find out the market value of the goods (diamond) transferred from DTA Mumbai to DTA Jaipur and thereafter he should have computed profit and gains of EOU unit to Jaipur. The same has not been done and the GP rate of 2.6% has been applied by the ld CIT(A) on the basis of the earlier order passed by the Tribunal dated 25/2/2011. In our view, the earlier order will not come for rescue to the assessee as the assessee was found to have suppressed the sale/transfer of the diamond to the DTA at Jaipur. Further the assessee itself had proposed the application of NP rate of 6% on the turnover of Rs. 27,64,85,644/- (sale made to the other units) and has not shown any NP/GP in respect of the inter unit sale of Rs. 12,24,61,860/- (compared to the earlier ITAT order). In our view, the same NP rate as proposed by the assessee for other units is required to be applied to the inter unit sale also in terms of Section 10B(8) of the Act, however, at this stage, since the market value of the goods/services required to be determined, we deem it appropriate to remand the matter back to the file of ld CIT(A) with direction to calculate the market value of the goods for 11 ITA No. 805/JP/2014 ACIT Vs M/s Vaibhav Global Ltd.
the purposes of computing the profit and sale of the assessee in respect of enter sale unit of goods/services. In view thereof, the appeal of the revenue is allowed for statistical purposes only.
7. In the result, revenue's appeal is allowed for statistical purposes only.
Order pronounced in the open court on 02/08/2016.
Sd/- Sd/-
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(BHAGCHAND) (Laliet Kumar)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 02nd August, 2016
Ranjan*
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1 vihykFkhZ@The Appellant- The A.C.I.T., Circle-5, Jaipur..
2. izR;FkhZ@ The Respondent- M/s Vaibhav Global Ltd., Jaipur.
3. vk;dj vk;qDr@ CIT
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. 805/JP/2014) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar