Kamal Gupta, New Delhi vs Department Of Income Tax

ITA NO. 380/Del/2012

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "D", NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. No. 380/DEL/2012 A.Y. : 2008-09 ACIT, CIRCLE 39(1), SHRI KAMAL GUPTA, NEW DELHI VS. 5652, BASTI HARPHOOL SINGH, SADAR THANA ROAD, SADAR BAZAR, DELHI - 6 (PAN: AATPG5786A) (APPELLANT) (RESPONDENT)

Department by : Sh. B.R.R. KUMAR, Sr. DR Assessee by : NONE

Date of Hearing : 16-03-2015 Date of Order : 18-03-2015

ORDER PER H.S. SIDHU, JM

Revenue has filed this appeal against the Order dated 1.11.2011 passed by the Ld. Commissioner of Income Tax (Appeals)-XXVIII), New Delhi pertaining to assessment year 2008-09.

2. The grounds raised by the Department read as under:-

"1. The Ld. CIT(A) has erred in reducing the Net Profit rate from 5% to 1% without any basis or evidence and without discussing the reasons given by the AO.

2. The Ld. CIT(A) has erred in deleting the addition of Rs. 81,00,000/- made by the AO on account of

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undisclosed stock on the ground that it amounts to double addition whereas the above addition was made as income from other sources and not as business income. Further the CIT(A) also erred in not adjudicating on the disallowances on account section 40A(3) of the Income Tax Act, 1961 while deleting the addition of Rs. 81,00,000/-.

3. That the ground of appeal are without prejudice to each other.

4. The appellant craves to add, amend or modify the grounds of appeal at any time.

3. The brief facts of the case are that in this case return of income was filed by the assessee for the asstt. year 2008-09 on 30.9.2009 declaring a total income of Rs. 7,26,878/-. This case was picked up for scrutiny. Accordingly, a notice u/s. 143(2) of the I.T. Act, 1961 was issued on 25.9.2009. Detailed questionnaire along with notice u/s. 142(1) was issued on 10.5.2010. In response thereto, assessee's counsel attended the hearing before the AO from time to time and filed necessary details / documents, as required. In this case the assessee is an individual and dealing in Manufacturing and Trading of Hosiery Items, Readymade garments and Fabric etc. under the name M/s Happy Hours Overseas. Total gross receipts for the year under consideration are Rs. 8,39,91,597/- with a Net Profit Rate of 0.67% in A.Y., 2008-09 in comparison to 1.16% in the A.Y. 2007-08.

3.1 The AO rejected the books of account and observed that the income of the assessee has to be derived. In comparable trade, other assessee are showing net profit in the range of 5% to 8%. Therefore, net profit rate at the lower margin of 5% is being adopted

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for calculating profits from the business. Total gross receipts during the year under consideration are Rs. 8,39,91,597/-. 5% of total gross receipts is Rs. 41,99,579/-. Therefore, total profits from the business is being estimated at Rs. 41,99,579. Assessee has shown net profit of Rs. 4,12,907/-. So difference amount (Rs. 41,99,579 - Rs. 4,12,907) of Rs. 37,86,672/- was added to the total income and penalty proceedings on this account has been initiated separately for concealing particulars of income.

3.2 The assessee has undisclosed stock to the tune of Rs. 81.01 lacs. Assessee has failed to explain the discrepancy in the stock. AO observed that it is very clear from the records that this is the undisclosed stock which is out of the books. He also observed that the assessee could not explain the discrepancy in the stock. Therefore, this amount of undisclosed stock is of Rs. 81,01,000/- is assessee's undisclosed income and therefore added to the total income of the assessee. In view of above, AO completed the assessment u/s. 143(3) r.w.s. 145(3) of the I.T. Act, vide assessment order dated 29.12.2010 and made the aforementioned additions.

4. Against the aforementioned assessment order dated 29.12.2010, Assessee appealed before the Ld. First Appellate Authority, who vide impugned order 1.11.2011 has partly allowed the appeal of the assesee.

5. Aggrieved by the aforesaid impugned order dated 1.11.2011, Revenue is in appeal before the Tribunal.

6. At the time of hearing Ld. Departmental Representative has relied upon the order of the Assessing Officer and reiterated on the contentions raised in the grounds of appeal filed by the Revenue.

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ITA NO. 380/Del/2012

7. At the threshold, we note that this case came up for hearing before the Bench on various dates and has been adjourning since 27.3.2012 on one pretext or the other. For today again this case was fixed for 16.3.2015 and notice was sent at the available address, but again none appeared on behalf of the assessee nor any request for adjournment is filed. In view of the above, we are of the considered opinion that no useful purpose would be served to adjourn the case again and again. Therefore, we are deciding the Appeal, exparte qua assessee.

8. We have heard the Ld. DR and perused the relevant records,

especially the impugned order dated 1.11.2011, we find that

Assessing Officer has rejecting books of account by invoking section

145(3) and applying net profit rate of 5% to the tune of Rs.3786672/

-. The main contention of the Assessing Officer is that stock has

been grossly undervalued and does not represent the true, correct

and fair picture of business affair. The findings are based on the

statement of stock filed with the bank. We find that besides this AO

has not been able to bring out any evidence or find fault with the

stock book maintained by the assessee. The assessee has relied on

various cases, wherein it has been stated that mere inflation of

stock statement filed with the bank for hypothecation purposes,

cannot be a reason to reject the books of account and invoke section

145(3). We find that the AO on a close perusal of GP and NP in the

Asstt. Year concerned i.e. 2008-09 and preceding two years it is

seen that the turnover has increased from 48307984 to 83991597.

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ITA NO. 380/Del/2012

However, the gross profit ratio has decreased from 9.03% to 8.07%.

The net profit ratio has also decreased from 1.16% to 0.94%. The

assessee has stated that there is not much change in G.P. rate

compared to previous year. The main reason for low NP rate is due

to increase in expenses related to bank interest and exchange

fluctuation. We find that the Assessing Officer after rejecting the

books of account of the appellant had estimated net profit ratio at

5% which seems to be not based on the previous history of the

appellant. Last year for Asstt. Year 2007-08 the N.P. rate was shown

at 1.16% and in the year before that it was only 0.90%. Keeping in

view of the above, we find considerable cogency in the CIT(A)'s

finding that the AO has made an addition of Rs. 37,86,672/- by

raising the N.P. rate to 5%. 1 % NP rate would be Rs. 839915/ -. We

are also of the view that the Ld. CIT(A) has rightly held that as the

assessee has already shown NP Rate @0.49%, Ld. CIT(A) enhanced

that to 1% by adding 0.51 % in the N.P. ratio and accordingly, in

the net result, the net profit is increased by an amount of

Rs.428357/- to round off Ld. CIT(A) sustained the addition of

Rs.4,30,000/- and rightly allowed the relief to the tune of

Rs.37,86,672 - Rs.4,30,000/- = Rs.33,56,672/ - and partly allowed

this ground. In view of the above, we do not see any reason to

interfere with the well reasoned order of the Ld. CIT(A), accordingly,

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we uphold the same and decide the issue in dispute against the

Revenue by rejecting this ground of appeal.

9. With regard to addition of Rs. 81,01,000/ - on account of

undisclosed stock is concerned, we find that the assessee has stated

that the A.O. has rejected the books of account by inflating the N .P.

Rate and has estimated the income and in addition to that, AO has

made additions in the stock Additions have been made twice on the

same count, which is against the Income Tax provisions and is

wrong. Where the income is estimated after rejecting books of

account, it is not permissible to the assessing officer to rely on the

rejected books of accounts for making an addition of an exact item

(of expenditure) depicted in the profit and loss account. We find

that the assessee has relied on the judgement of Indwell

Constructions v. CIT, (1998)232 ITR 776, 778-79(AP). We find that

the Assessing Officer has rejected the books of account by applying

section 145(3) and estimating the net profit on one hand and again

made addition to the stock treating it as undervalued due to the

fact that the figure shown in the stock book did not tally with the

stock statement filed with the bank for hypothecation. We find force

in the finding of the Ld. CIT(A) that the additions to the stock to the

tune of Rs. 81,01,000/- if sustained, would lead to double addition

and tantamount to taxing the same income twice. Therefore, in view

of these facts addition made to the tune of Rs. 81,01,000/- was

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rightly deleted by the Ld. CIT(A), which does not need any

interference on our part, hence, we uphold the well reasoned order

passed by the Ld. CIT(A) on the issue in dispute and decide the issue

against the Revenue by rejecting the grounds of appeal.

10. In the result, the Appeal filed by the Revenue stands

dismissed.

Order pronounced in the Open Court on 18/03/2015.

Sd/- Sd/-

[T.S. KAPOOR] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 18/3/2015 "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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