Jai Prakash Garg, Muzaffarnagar vs Assessee

Assessee by : Sh. Ankit Gupta, Adv. Department by : Sh. Gaurav Dudeja, Sr. DR

Date of Hearing : 01-07-2015 Date of Order : 20-07-2015

ORDER

PER H.S. SIDHU : JM This appeal by the Assessee is directed against the Order of

the Ld. Commissioner of Income Tax (Appeals), Muzaffarnagar

dated 31.3.2014 pertaining to assessment year 2009-10 and

following grounds have been raised:-

1. That the notice issued and order passed u/s 154 are

illegal, bad in law and without jurisdiction.

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2. That, in view of the facts and circumstances, the order

passed under section 154 of the Act is illegal, bad in law

and cannot be justified by any material on record and the

CIT(A) has also erred in upholding the same.

3. That CIT(A)/ AO , in view of the facts and circumstances

of the case failed to appreciate that the assessment order

passed under section 143(3) of the Act after considering

the relevant material and after appropriate reasoning

hence there is no mistake apparent from record which

can be rectified under section 154 of the Act therefore

the notice U/s 154 and order passed are illegal, bad in

law and without jurisdiction.

4. The addition/ disallowances made by the assessing

officer are illegal, unjust, highly excessive and are not

based on any material on record by the assessing officer.

The total income of the appellant has been wrongly and

illegally computed by the assessing officer at Rs.

35,75,080/- as against declared income of Rs.1,47,920/-.

5. The Assessing Officer has, in view of the facts and

circumstances of the case, erred on facts and in law, in

making addition/disallowance of Rs. 33,70,800/- on

account of the violation of the section 40A(3) of the

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Income Tax Act,1961 and the CIT(A) had also erred in

upholding the same.

6. That the CIT(A)/AO failed to appreciate that the amount

paid in cash is to run the business in smoothly and it is

for business expediency and no disallowances is called

for. In any case the Assessing Officer has failed to

appreciate that the said payments were covered by rule

6DD and no disallowance should have been made.

7. That CIT(A)/ AO failed to appreciate that no disallowance

need to made U/s 40A(3) when the gross rate is applied

and recast the books of accounts/ trading account of the

appellant after rejecting the books of accounts U/s 145 of

the Act hence the addition/ disallowance made is illegal,

bad in law and without jurisdiction.

8. That the CIT(A)/ AO erred in ignoring/ not considering the

decision of the Jurisdictional High court, even after relying

by the assessee that it is squarely applicable to the facts

and circumstances of the case.

9. That the Assessing Officer, in view of the facts and

circumstances of the case erred on facts and in law in

making the ad-hoc addition/ disallowance on estimated

basis, which is unjust, arbitrary, unlawful, highly

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excessive, based on surmises and conjectures and

cannot be justified by any material on record.

10. The additions made and the observations made are

unjust, unlawful and based on mere surmises and

conjunctures. The additions made cannot be justified by

any material on record.

11. That the explanation given evidence produced, material

placed and available on record has not been properly

considered and judicially interpreted and the same do not

justify the additions/ allowances made.

12. That the impugned Assessment Order passed by the

Assessing Officer and order passed by CIT(A) are against

the principles of natural justice and the same has been

passed without affording reasonable and adequate

opportunity of being heard.

13. That the interest u/s 234B has been wrongly and illegally

charged as the appellant could not have foreseen the

disallowances/additions made and could not have

included the same in current income for payment of

Advance tax. The interest charged under various sections

is also wrongly worked out.

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14. The appellant craves leave to add, amend, alter and or

modify the grounds of appeal of the said appeal.

All of the above grounds of appeal are without prejudice

and are mutually exclusive to each other."

2. The brief facts of the case are that the assessment in this case was completed u/s. 143(3) of the Act dated 23.12.2011 determining total income at Rs. 2,04,280/-. Subsequently, it was gathered by the AO that as per cash book, ledger account of purchase of DAP and ledger account of purchase of MOP, cash purchases were made in excess of Rs. 20,000/-, details of which have been reproduced by the AO in the assessment order as under:-

(i) Cash Book Rs. 5,90,400/-

(ii) Purchase of DAP Rs. 22,35,570/-

(iii) Purchase of MOP Rs. 5,44,830/-

Total Rs. 33,70,800/-

2.1 Thus as per the amended provisions of section 40A(3) of the Act 100% of such cash purchases at Rs. 33,70,800/- was liable to be added to the income of the assessee. Thus the AO issued notice u/s. 154 of the Act dated 17.1.2013 requiring the assessee to explain as to why addition of Rs. 33,70,800/- being cash purchases be not made to the income in violation of provisions of section 40A(3) of the Act.

2.2 In response the assessee explained that there was no contravention of provisions of section 40A(3) of the Act in respect of purchase of AP/MOP. As per the assessee during the course of assessment proceedings all the purchase vouchers were produced

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before the AO which were verifiable from the books of account. Besides the above, the persons from whom the goods were purchased were produced for examination and their statements on oath were recorded. The assessee further placed reliance on the decision of Hon'ble Allahabad High Court in the case of CIT vs. Banswari Lal Bansidhar 229 ITR 229 (All.). Further, on the point of GP, it was contended by the assessee that the AO at the time of assessment proceedings rejected the account books of the assessee u/s. 145 and increased the GP rate more than what had been shown by the assessee. Thus it was argued that if the books were rejected by the AO, Section 40A(3) of the Act would not be applicable.

2.3 However, the AO rejected the contentions made by the assessee and held that the assessee had failed to explain the reason of the purchase made in cash exceeding Rs. 20,000/- aggregating to Rs. 33,70,800/- which was made in contravention of provisions of section 40A(3) of the Act. The AO also found distinguishable the case law relied upon by the assessee and rejected the same. Since there was apparent mistake on the face of record, the AO disallowed cash purchases made at Rs. 33,70,800/- u/s. 40A(3) of the Act which was added to the income of the assessee vide order dated 17.6.2014 passed u/s. 154 of the I.T. Act, 1961.

3. Aggrieved with the aforesaid Order dated 17.6.2013 passed by the AO u/s. 154 of the I.T. Act, assessee appealed before the Ld. CIT(A), who vide impugned order dated 31.3.2014 has dismissed the Appeal of the assessee.

4. Against the aforesaid order dated 31.3.2014 of the Ld. CIT(A), assessee appealed before the Tribunal.

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5. Ld. Counsel of the assessee has reiterated the contention raised by the Assessee. He submitted that the legal issue in respect of additions made u/s. 154 without any mistake apparent on record and on debatable issue, which itself amounts to review the assessment order passed u/s. 143(3) of the Act and also stated that issues on merit are also squarely covered by the decision of the Hon'ble Jurisdictional High court of Allahabad in the case of CIT vs. Banwari Lal Bansidhar 229 ITR 299 (All.). To support his contentions, he also filed the copies of the following judgments:-

- CIT vs. Smt. Santosh Jain 159 Taxman 392 (P&H)

- ITO vs. Nardev Kumar Gupta 142 ITD 303 (Jai.)

- CIT vs. Gayatri Glass Works 317 ITR 319 (All.)

- M/s Mepco Industries Ltd. vs. CIT 319 ITR 208 (SC)

- CIT vs. India Cements Ltd. 265 ITR 479 (Mad.)

- CIT vs. Sherwani Sugar Syndicate Ltd. 294 ITR 247 (All.)

- CIT vs. Lakahni Rubber Udyog Ltd. 312 ITR 14 (P&H)

- ITO vs. Volkart Brothers and others 82 ITR 50 (SC)

6. on the contrary, Ld. DR relied upon the orders of the revenue authorities and requested that the same may be upheld.

7. We have heard both the parties and perused the records especially the orders of the lower authorities and the submissions made by both the parties. We find that the assessment was completed u/s. 143(3) of the Act dated 23.12.2011 determining total income at Rs. 2,04,280/-. AO gathered that as per cash book, ledger account of purchase of DAP and ledger account of purchase of MOP, cash purchases were made in excess of Rs. 20,000/-,

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details of which have been reproduced by the AO in the assessment order as under:-

(i) Cash Book Rs. 5,90,400/-

(ii) Purchase of DAP Rs. 22,35,570/-

(iii) Purchase of MOP Rs. 5,44,830/-

Total Rs. 33,70,800/-

7.1 We further find that as per the AO the amended provisions of section 40A(3) of the Act 100% of such cash purchases at Rs. 33,70,800/- was liable to be added to the income of the assessee. Thus the AO issued notice u/s. 154 of the Act dated 17.1.2013 requiring the assessee to explain as to why addition of Rs. 33,70,800/- being cash purchases be not made to the income in violation of provisions of section 40A(3) of the Act. In response thereto the assessee explained that there was no contravention of provisions of section 40A(3) of the Act in respect of purchase of AP/MOP. As per the assessee during the course of assessment proceedings all the purchase vouchers were produced before the AO which were verifiable from the books of account. Besides the above, the persons from whom the goods were purchased were produced for examination and their statements on oath were recorded. The assessee further placed reliance on the decision of Hon'ble Allahabad High Court in the case of CIT vs. Banswari Lal Bansidhar 229 ITR 229 (All.). Further, on the point of GP, it was contended by the assessee that the AO at the time of assessment proceedings rejected the account books of the assessee u/s. 145 and increased the GP rate more than what had been shown by the assessee. Thus it was argued that if the books were rejected by the AO, Section 40A(3) of the Act would not be applicable. However, the AO rejected

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the contentions made by the assessee and held that the assessee had failed to explain the reason of the purchase made in cash exceeding Rs. 20,000/- aggregating to Rs. 33,70,800/- which was made in contravention of provisions of section 40A(3) of the Act. The AO also found distinguishable the case law relied upon by the assessee and rejected the same. AO observed that since there was apparent mistake on the face of record, he disallowed cash purchases made at Rs. 33,70,800/- u/s. 40A(3) of the Act which was added to the income of the assessee vide order dated 17.6.2013 passed u/s. 154 of the I.T. Act, 1961 and the same was upheld by the Ld. CIT(A) vide order dated 31.3.2014.

7.2 We find considerable cogency in the submissions of the assessee's counsel that assessment order passed under section 143(3) of the Act after considering the relevant material and after appropriate reasoning hence there is no mistake apparent from record which can be rectified under section 154 of the Act therefore the notice U/s 154 and order passed are illegal, bad in law and without jurisdiction. We have also gone through the judgments filed by the assessee's counsel and find that the issue in dispute is squarely covered by the said judgments. We are dealing some of the judgments in the forgoing paragraphs:-

7.3 In the case of CIT vs. Banwari Lal Banshidhar 229 ITR 229 (All), we find that the Hon'ble High Court of Allahabad has observed that "when the gross profit rate is applied, that would take care of everything and there was no need for the AO to make scrutiny of the amount incurred on the purchases by the assessee."

7.4 In the case of CIT vs. Gayatri Glass Works (2009) 317 ITR 319 (All), we find that the Hon'ble High Court of Allahabad has observed that order passed on the basis of relevant facts - where a decision

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has been arrived at after considering the relevant material and after appropriate reasoning, although the reasoning and consequently the conclusion may be mistaken on facts or on law; and where to demonstrate the mistake of fact or of law it requires a process of detailed reasoning, it would not be a case of an error apparent on record capable of rectification under section 154, but would virtually amount to review of the order. By dealing this case, the Hon'ble High Court while deciding this case, has referred the judgment delivered in the case of CIT vs. Hero Cycles (P) Ltd. etc. (1997) 228 ITR 463 (SC) of the Hon'ble Supreme Court of India, wherein the Hon'ble Supreme Court of India has held as under:-

"Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the Officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, a point which was not examined on facts or in law cannot be dealt with as a mistake apparent from the record."

7.5 And in the case of T.S. Balaram, ITO, Company Circle-IV, Bombay vs. Volkart Brothers and others, the Hon'ble Supreme Court of India vide its order dated 5.8.1971 has observed that "a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on debatable point of law is not a mistake apparent from the record."

8. Keeping in view of the aforesaid discussions and precedents relied upon by the Ld. Counsel of the assessee, it is amply clear that the issue in dispute is a legal issue in respect of additions made u/s.

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154 without any mistake apparent on record and on debatable issue and we are of the view that the order u/s. 154 passed by the AO and upheld by the Ld. CIT(A) are not sustainable in the eyes of law. Therefore, we are of the considered view that the issue in dispute is squarely covered by the judgments mentioned in paras 7.3 & 7.5 of this order. Therefore, respectfully, following the precedents as above, we quash the order dated 17.6.2013 passed u/s. 154 of the I.T. Act by the AO and the order dated 31.3.2014 passed by the Ld. CIT(A) u/s. 250 of the I.T. Act and delete the additions emanate therefrom and allow the appeal of the Assessee.

9. In the result, the Appeal filed by the Assessee stands allowed.

Order pronounced in the Open Court on 20/7/2015.

Sd/- Sd/-

[S.V. MEHROTRA] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 20/7/2015 "SRBHATNAGAR" Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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