Income Tax Appellate Tribunal - Lucknow
Ashok Kumar Gupta, Lucknow vs Astt. Commissioner Of Income Tax, ... on 15 March, 2018
I.T.A. No.447/Lkw/2016
I.T.A. No.527/Lkw/2016 1
Assessment Year:2013-14
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH 'B', LUCKNOW
BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND
SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER
I.T.A. No.447/Lkw/2016
Assessment Year:2013-14
Shri Ashok Kumar Gupta, Vs. A.C.I.T.,
8,Datiya House, Circle-1,
Khurshed Bagh, Lucknow.
Lucknow.
PAN:AHAPG 7492 F
(Appellant) (Respondent)
I.T.A. No.527/Lkw/2016
Assessment Year:2013-14
A.C.I.T., Vs. Shri Ashok Kumar Gupta,
Circle-1, 8,Datiya House,
Lucknow. Khurshed Bagh,
Lucknow.
PAN:AHAPG 7492 F
(Appellant) (Respondent)
Assessee by Shri Yogesh Agarwal, Advocate
Revenue by Shri J. S. Minhas, CIT, D.R.
Date of hearing 12/03/2018
Date of pronouncement 15/03/2018
ORDER
PER T. S. KAPOOR, A.M.
These are cross appeals filed by the assessee as well as by the Revenue against the order of learned CIT(A) dated 03/06/2016.
2. The grounds taken by the Revenue are reproduced below:
I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 2 Assessment Year:2013-14 "1. That on the facts and in the circumstances of the case, Ld. CIT (A) has erred in deleting the addition of Rs.36,31,910/- u/s 69A of the Income Tax Act, 1961, made by the Assessing Officer on account of difference in turnover, without appreciating the fact that the Assessing Officer has made addition after necessary examination of the issue as per facts available on record in accordance with law, which have been discussed elaborately in assessment order.
2. That on the facts and in the circumstances of the case, Ld. CIT (A) has erred in deleting the addition of Rs.5,00,000/- made by the Assessing Officer on account of undisclosed income from the commission, without appreciating the fact that the addition was made by the Assessing Officer on the basis of the amount surrendered by the assessee during the search operation.
3. That the order of Ld. CIT (A) deserves to be set aside and the assessment order passed by the Assessing Officer be restored."
3. The grounds taken by the assessee are reproduced below:
"1. The Ld. Commissioner of Income Tax (Appeals) -III, Lucknow (herein after referred to as the Ld. CIT(A)'s) erred on facts and in law in confirming the addition of Rs. 16010810.00 under the head undisclosed income by applying the G.P. rate of 3.68% of the previous year instead of 1.91% of the current year, on undisclosed turnover of Rs. 1088767854/-.
2. In confirming the addition the Ld. CIT(A)'s failed to appreciate or rather chosen to completely ignore the fact that the applicant has already disclosed and amount of Rs. 23500000.00 as income on undisclosed turnover of Rs.1088767854/- being 2.16% whereas the G.P. during the year on disclosed turnover has been accepted by the AO at 1.91% on the basis of regular books of accounts.
3. The Ld. CIT(A)'s further erred facts and in law in stating that the AO has based his addition on guess work whereas in fact the G.P. on disclosed turnover has been I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 3 Assessment Year:2013-14 accepted @1.91% and therefore there is no scope for making or confirming any additions over and above, the disclosed income of Rs. 23500000.00 which is already in excess of the accepted GP rate of 1.91%, being 2.16% of undisclosed turnover and hence the addition so confirmed may kindly be ordered to be deleted.
4. The addition of Rs.16010810.00 has wrongly been confirmed as while making the addition the AO has wrongly assumed that current year G.P. rate is 3.7% whereas in fact he has himself accepted the current year G.P. rate at 1.91% and thus the addition is wholly based on notions conjecture surmises without and concrete evidence and is liable to be deleted.
5. The Ld. CIT(A)'s further erred on facts and in law in confirming the additions to the extent of Rs. 4500000/- being claimed on account of expenses deemed to have been incurred in earning the commission income of Rs.59500000.00 during the year under consideration.
6. In confirming the addition of Rs. 4500000.00 the Ld. CIT(A) chosen to ignore the fact that this was the gross receipt from the commission and thus expenses under this head for earning this income have to be allowed which is approximately only 8% of the gross receipts.
7. The addition confirmed is contrary to facts, laws and principles of natural justice and fair play and thus be allowed to be deleted."
4. The brief facts, as noted in the assessment order, are that a search & seizure action u/s 132 of the Act was carried out on the assessee and its group companies and during search & seizure operation the unaccounted turnover was detected. The unaccounted turnover detected amounted to Rs.118.69 crore. The Assessing Officer applied gross profit margin of 3.7% as per audited accounts of the assessee during the earlier year and calculated the gross margin on unaccounted turnover at Rs.4,39,16,321/-. Out of this gross margin on unaccounted turnover, the Assessing Officer I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 4 Assessment Year:2013-14 allowed an amount of Rs,.7,73,600/- as expenses and treated the net profit of Rs.4,31,42,721/- as income from trading business. Out of the above net income calculated by the Assessing Officer, the Assessing Officer allowed Rs.2.35 crore which the assessee had declared as unaccounted income in the income tax return and therefore, the difference of Rs.1,96,42,721/- was added to the income of the assessee u/s 69 of the Act.
4.1 The Assessing Officer further observed that the assessee had made a surrender of Rs.6,00,00,000/- as the undisclosed income from commission earned on the sale and purchase and which was admitted in the course of statement during search proceedings u/s 132(4) of the Act. The Assessing Officer observed that in the return of income the assessee had declared only Rs.5.5 crore as commission income and remaining amount has been claimed as expenses to earn the undisclosed commission of Rs.6,00,00,000/-. The Assessing Officer made the addition of balance amount of Rs.50,00,000/- in view of no evidence for the expenses.
4.2 Aggrieved with the order the assessee filed appeal before learned CIT(A) and filed detailed submissions. Learned CIT(A) though upheld the gross profit rate of 3.7% applied by the Assessing Officer however, the Assessing Officer reduced the amount of undisclosed turnover by finding difference in the figures. The learned CIT(A) on the reduced undisclosed turnover applied gross profit rate of 3.7% and allowed relief to the assessee to the extent of Rs.36,31,910/- and confirmed the balance addition of Rs.1,60,10,810/-. Regarding another addition of Rs.50,00,000/-, learned CIT(A) allowed relief to the extent of Rs.5,00,000/- and confirmed the addition of Rs.45,00,000/-. Aggrieved with the part relief and part confirmation of additions, both the parties are in appeal before us.
I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 5 Assessment Year:2013-14
5. At the outset, Learned A. R. took up his appeal first and submitted that assessee during search proceedings had surrendered an amount of Rs.2.35 crores on account of profit on undisclosed turnover. It was submitted that the Assessing Officer applied gross profit rate of 3.7% which is based upon earlier years audited accounts whereas during the year under consideration the gross profit earned by the assessee only 1.91% and which gross profit rate was accepted by the Assessing Officer during the assessment proceedings as no addition on account of lower gross profit rate on recorded turnover was made by him. To support his contention that no additions were made on recorded turnover, the assessee invited our attention to assessment order wherein no such addition was made. Learned A. R. also invited our attention to page Nos. 22 to 25 of the paper book wherein a copy of written submissions made to Assessing Officer were placed. Learned A. R. explained that Assessing Officer had asked for the reason for decline in gross profit rate and which was explained to be due to increase in purchase price of items sold and which the Assessing Officer had accepted. It was submitted that if the current year's gross profit rate of 1.91% is applied to the unaccounted turnover, no addition would have been made. It was submitted that the authorities below should have considered the arguments of the assessee in not applying gross profit rate of earlier year when the gross profit rate of present year was available and which was accepted.
5.1 As regards the expenses of Rs.50,00,000/- which the assessee had claimed to have incurred to earn income of Rs.6,00,00,000/-, Learned A. R. stated that no income can be earned unless some expenditure is incurred to earn that income and against the income of Rs.6,00,00,000/-, Rs.50,00,000/- claimed to have been incurred on such commission was quite reasonable and should have been allowed.
I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 6 Assessment Year:2013-14
6. Learned D. R., on the other hand, submitted that the arguments of Learned A. R. that the current year's gross profit rate should have been applied to the unaccounted turnover should not be accepted as if the same gross profit rate is applied to disclosed turnover and undisclosed turnover there will not be any deterrent to any assessee who is indulging in unaccounted transaction. Learned D. R. stated that in unaccounted turnover the assessee also saves heavy amount on account of non payment of taxes and therefore, the application of higher gross profit rate was necessary.
6.1 As regards the claim of expenses of Rs.50,00,000/-, Learned D. R. stated that the assessee could not produce any evidence to substantiate his claim and moreover during search proceedings he had surrendered Rs.6,00,00,000/- as commission income and therefore, the claim of Rs.50,00,000/- as expenses is an afterthought and authorities below have rightly not allowed the claim.
6.2 Arguing on the Departmental appeal, Learned D. R. submitted that learned CIT(A) has wrongly deleted the addition of Rs.36,31,910/- by reducing the amount of undisclosed turnover. Learned D. R. heavily placed his reliance on the order of the Assessing Officer. As regards the other relief of Rs.5,00,000/- out of commission income, Learned D. R. placed his reliance on the order of the Assessing Officer.
6.3 Learned A. R., on the other hand, submitted that the turnover of Ghee from 01/04/2002 to 23/01/2003 was Rs.1,46,03,09,941/- out of which the turnover as per audited books of account upto 23/01/2013 was Rs.37,15,41,587/- which should have been reduced to arrive at the unaccounted turnover. However, the Assessing Officer had reduced only an I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 7 Assessment Year:2013-14 amount of Rs.27,33,82,332/- as recorded turnover which was not correct and learned CIT(A) has rightly taken up the correct figure to arrive at the figure of unaccounted turnover. Learned A. R. further submitted that figure in the audited account for recorded turnover was supported by VAT returns also and therefore, there is nothing wrong in the order of learned CIT(A).
6.4 As regards the other relief of Rs.5,00,000/- Learned A. R. stated that the assessee is arguing for full relief of Rs.50,00,000/- and learned CIT(A) has allowed only a small amount of Rs.5,00,000/-.
7. We have heard the rival parties and have gone through the material placed on record. We find that the assessee during the search & seizure operations had surrendered an amount of Rs.2.35 crore as business income from trading of Pan Masala. The Assessing Officer had applied a gross profit rate of 3.7% on the unaccounted turnover which he calculated at Rs.1,18,69,27,609/- The said gross profit is as per the audited books of account of the assessee for the preceding assessment year. We further find that during the present assessment year the assessee had declared gross profit rate of 1.91% and which was accepted by the Assessing Officer as he has not made any addition in this regard due to lower gross profit rate. During assessment proceedings the assessee had filed detailed submissions for decrease in gross profit rate and which the Assessing Officer had accepted and therefore, Learned A. R. has argued that gross profit rate of 1.91% should have been applied to the unaccounted turnover also. However the application of gross profit rate of accounted turnover cannot be applied to unaccounted turnover as the assessee generally earns more profit on the unaccounted turnover and moreover to create a deterrent for assessee not to make unaccounted transactions in future and in view of justice to both parties, we deem it appropriate that average of gross profit I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 8 Assessment Year:2013-14 rate of 3.7% and 1.91% should have been applied to the unaccounted turnover. The average gross profit rate of these two years comes out at 2.8%. Therefore, the Assessing Officer is directed to apply gross profit rate of 2.8% on the unaccounted turnover as calculated by learned CIT(A) which after relief given by learned CIT(A) comes out at Rs.1,08,87,67,854/-. Out of the gross profit thus arrived the assessee will be allowed deduction on account of expenses to the extent of Rs.7,73,600/- which learned CIT(A) has also given and out of such net profit the profit declared by the assessee to the tune of Rs.2.35 crore will be reduced and remaining amount is liable to be taxed in the hands of the assessee. In view of the above ground No.1,2,3 & 4 of the appeal of the assessee are partly allowed.
7.1 As regards ground No. 5 and 6, we find that assessee had declared a commission income of Rs.6,00,00,000/- and now in the return of income it claimed Rs.50,00,000/- as expenses to earn that income which has not been substantiated. Learned CIT(A) has already allowed relief to the extent of Rs.5,00,000/- and we do not find any infirmity in that order and in view of the inability of the assessee to explain and support the claim of expenses, we dismiss ground No. 5 & 6.
7.2 In view of the above, the appeal of the assessee is partly allowed.
8. Now coming to the Revenue's appeal, we find that Revenue is aggrieved with the relief given by CIT(A) on account of calculation of unaccounted turnover. The Assessing Officer had calculated the unaccounted turnover at Rs.1,18,69,27,609/- out of total turnover of Rs.1,1,46,03,09,941/- While calculating the undisclosed turnover the Assessing Officer has reduced an amount of Rs.27,33,82,332/- which is not correct as learned CIT(A) has held that the turnover of the assessee as per I.T.A. No.447/Lkw/2016 I.T.A. No.527/Lkw/2016 9 Assessment Year:2013-14 audited account and as per VAT returns worked out to be Rs.37,15,41,587/- Learned CIT(A) has rightly allowed relief to the assessee by replacing the incorrect accounted figure of sales with the correct figure of accounted sales and therefore, there is no infirmity in the order of CIT(A). Therefore, ground No. 1 is dismissed.
8.1 As regards the relief given by learned CIT(A) amounting to Rs.5,00,000/-, we find that learned CIT(A) has allowed the relief on the basis of calculation of undisclosed income from commission which as per seized documents came out to be Rs.5.95 crore instead of Rs.6,00,00,000/-. He has made a finding of fact that the commission income as per seized documents was Rs.5.95 crore and therefore, has allowed relief of Rs.5,00,000/- only and in fact he has not allowed any relief on account of expenses therefore, there is no infirmity in the order of CIT(A). Accordingly, ground No. 2 is also dismissed.
9. In the result, the appeal of the assessee is partly allowed whereas the appeal of the Revenue is dismissed.
(Order pronounced in the open court on 15/03/2018) Sd/. Sd/.
(PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR )
Judicial Member Accountant Member
Dated:15/03/2018
*Singh
Copy of the order forwarded to :
1. The Appellant
2. The Respondent.
3. Concerned CIT
4. The CIT(A)
5. D.R., I.T.A.T., Lucknow