Friday 31 January 2014

Whether loss claimed is to be allowed even if assessee fails to produce documents on pretext that same were seized by Central Excise Department - NO: ITAT

THE issue before the Bench is - Whether loss claimed by the assessee can be allowed, when its documents were seized by the Central Excise department and could not be produced even though the assessee was provided a reasonable time period. And the answer goes against the assessee.
Facts of the case
ASSESSEE'S APPEAL IN ITA NO.717/AHD/2008 FOR AY 2003-04
The assessee was processed u/s 143(1) accepting the returned loss of Rs.38,75,670/- as claimed by the assessee. Subsequently, on the basis of the information from the Central Excise Department, the case of the assessee was reopened. In response to the notice u/s 148, the assessee submitted that the original filed return may be treated as having been filed in response to the issued notice. Thereafter, a notice u/s 143(2) was duly served on the assessee, however, the assessee failed to be present on several occasions and finally the assessment was completed on the best judgment method.
Addition on account of losses
The assessee had claimed losses, but the same was disallowed by the AO due to absence of records and evidence produced by the assessee. On appeal, the CIT(A) observed that the assessee had claimed expenditure on various counts, but no evidence to substantiate the same could be produced. Therefore, the CIT(A) upheld the addition.
The counsel of the assessee submitted that disallowing the loss and estimating the profit at the same time was excessive. He also submitted that due to non-availability of the details in the form of accounts which were taken away by the Central Excise Authorities, the same could not be produced. However, he submitted that the accounts were duly audited by the auditor of the assessee. The Departmental Representative replied that assessee could have taken very well a certified copy from the excise officials and proven the genuineness of the claim.
Addition on account of estimation of the profit as well as investments
The assessee has removed goods from the premises without making entries in Central Excise Records and without paying the duty involved. The assessee could not produce the evidences in support of the claim of sales and investment. Therefore, the AO has made addition on account of estimation of the profit as well as investments made by the assessee for purchasing the material. The AO made addition treating the removal of goods as sales and treating the same as unaccounted investment. The AO also made addition of Rs.1,77,45,067/- representing the unaccounted investment and taxing the same u/s.69C and on unaccounted sales, he estimated the net profit at 2% adding further an amount of Rs.3,54,901/-. On appeal, the CIT(A), modified the addition by following the decision in the case of associated concern; namely, M/s.Motorola Specialities Oil Ltd. for AY 2002-03 and directed the AO to tax the GP @ 40% of Rs.1,77,45,067/-.
The Counsel of the assessee submitted that first, the unrecorded sales also represented unrecorded investment as per Revenue but the authorities below failed to take note of the roll over investment. Secondly, he submitted that in the identical situation, the Coordinate Bench of this Tribunal for AY 2002-03 in the case of Motorola Technologies Ltd.v s. ITO has taken the margin @ 12.5% on such unaccounted sales. On the contrary, the DR supported the order of the AO and submitted that the addition was warranted since the assessee could not produce the books of accounts.
REVENUE'S APPEAL IN ITA NO.728/AHD/2009 FOR AY 2003-04
The assessee had taken unsecured loan from various creditors which were added by the AO u/s 68 on the ground that the source of investment, creditworthiness of the lenders and genuineness of the transaction were not produced. On appeal, the CIT(A) observed that the assessee has produced all evidence and due confirmation from the other parties related to the unsecured loan and creditworthiness of the lenders. Hence the CIT(A) was of the view that the assessee had discharged the onus u/s 68 and therefore, deleted the addition.
REVENUE'S APPEAL IN ITA NO.729/AHD/2009
The assessee had taken unsecured loan from various creditors which were added by the AO u/s 68 on the ground that the source of investment, creditworthiness of the lenders and genuineness of the transaction were not produced. On appeal, the CIT(A) On appeal, similar to the observations in Revenue's appeal for AY 2003-04, observed that the assessee has produced all evidence and due confirmation from the other parties related to the unsecured loan and creditworthiness of the lenders. The CIT(A) further observed that increase in share capital was on account of Rs.3 crore credited in the name of Motorola Lubricants P.Ltd. by debiting Motorola Brand account through journal entry. Further, the CIT(A) observed that it was confirmed by both the parties that there was no financial implication of this entry since source of capital was debit entry of Motorola Brand account and the same was reversed next year since the proposal was not accepted by the share holders of the said company. It was observed that since the increase in capital was not by way of receipt of fund but by way of journal entry reversed next year, there was no question of source of this credit or any addition u/s 68. On the similar grounds relating to more addition u/s 68 made by the AO, the CIT(A) made a detailed analysis of the facts and held that all the source of investments and unsecured loans were explained by the assessee and therefore, no addition was warranted.
Having heard the parties, the Tribunal held that,
ASSESSEE'S APPEAL IN ITA NO.717/AHD/2008 FOR AY 2003-04
Addition on accounts of losses
+ it is clear that no verification was made even by the auditor, therefore appellant cannot claim that accounts are audited. We have given our thoughtful consideration to the facts and circumstances of the case. It is settled principle of law that anything claimed by the assessee in his return of income, the onus on him to prove with the material evidence. In this case, loss has been claimed but in support of such claim, no evidence is furnished. The argument of the assessee has been that it was prevented by reasonable cause since all the records were seized by the Central Excise Department. We do not find force in these arguments as the assessee was given sufficient opportunity by the AO to produce the relevant details, but the assessee has failed to produce the same. The assessee has not taken any step to take the certified copies from the Central Excise Department of the records seized. No panchnama of the records seized is placed on record, therefore in the absence of the material evidence, the authorities below were justified in rejecting the claim of the assessee. In view of this discussion, this ground of the assessee's appeal is rejected;
Addition on account of estimation of the profit as well as investments
+ it is seen that Shri Rinki S.Gandhi, Director of the assessee-company has agreed that goods have been removed from the premises without making entries in Central Excise Records and without paying the duty involved. No material is placed on record by the Revenue that any independent enquiry was made by the AO to find out whether such details of sales were not recorded in the regular books of account by summoning the record from the central excise authorities. It is also not coming out from the record that whether the AO has verified basis on which the Commissioner of Central Excise Vadodara-II passed penalty order. Since the Central Excise and Income Tax Department operate in two different fields and different set of documents are maintained for recording the transactions for the purpose of Central Excise and Income Tax, therefore the AO ought to have made further enquiries and based his best judgement order on the basis of such enquiry. It cannot be lost sight of the fact that the onus was on the assessee to prove the claim of the expenses. Under these peculiar facts, we do not find any reason to take a different view than taken by the ITAT in ITA No.328/Ahd/2009 for AY 2002-03, wherein the Coordinate Bench has taken 12.5% margin on unaccounted sales. We, therefore, direct the AO to take 12.5% margin on unaccounted sales of Rs.1,77,45,067/- and recompute the addition accordingly. This ground of assessee's appeal is allowed as indicated above;
REVENUE'S APPEAL IN ITA NO.728/AHD/2009 FOR AY 2003-04
Addition on account of loans u/s 68
+ the Revenue could not controvert this finding on fact. Therefore, we do not find any infirmity in the order of the CIT(A), same is hereby upheld. This ground of Revenue's appeal is rejected;
REVENUE'S APPEAL IN ITA NO.729/AHD/2009
+ the Revenue could not controvert this finding on fact. Therefore, we do not find any infirmity in the order of the CIT(A), same is hereby upheld. This ground of Revenue's appeal is rejected.

No comments:

Salaried Person's Tax Deductions: A Complete Guide

  Introduction It's important for taxpayers to have a clear understanding of the available allowances and deductions, as they can grea...