M. Ram Mohan Rao,, Hyderabad vs Assessee

This appeal filed by assessee is directed against the Order of Ld. CIT(A)-VI, Hyderabad dated 07.02.2014 whereby he enhanced the income of the assessee by applying higher rate of profit at 12% and also confirmed the addition made by A.O. on account of unexplained cash credits.

2. Assessee in the present case is an individual who is carrying on the business of civil contractor. The return of income for the year under consideration was filed by him on 30.09.2009 declaring total income of Rs.87,56,980. In the assessment completed under section 143(3) vide order dated 31.12.2011, total income of the assessee was computed by A.O. at Rs.1,95,91,220 after making the following additions aggregating to Rs.1,08,34,240.

2 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

Additions

(i) Unexplained cash credits u/s.68 (as Rs.83,36,000 discussed above)

(ii) Excess claim of depreciation (as Rs.7,61,561 discussed above)

(iii) Difference in turnover (as discussed Rs.8,68,101 above).

(iv) Difference in interest (as discussed Rs.2,01,150 above).

(v) Disallowance of agricultural income (as Rs.6,67,428 discussed above)

3. Against the Order passed by A.O. under section 143(3), an appeal was preferred by assessee before the Ld. CIT(A) challenging the additions made therein to his total income. After considering the submissions made by assessee as well as material available on record including the remand reports submitted by A.O., the Ld. CIT(A) sought to exercise his powers to enhance the income of assessee as computed by A.O. Accordingly, he issued a notice to the assessee which read as under :

"In this regard, you are required to explain how the sundry creditors shown in the books of account and reflected in balance sheet could be presumed that they are not reflected in books of account. further, it has been held by the catena of judicial decisions, that cash credits can be assessed even when business income is estimated and there is nothing in law to prevent the A.O. in taxing both, after rejection of books being unreliable and it is for the assessee to prove that credits represent the income which has already been taxed. Hence, it is proposed to treat the creditors of Rs.83,36,000/-, as unexplained apart from estimating the profits of business at 12% of the turnover, which may result in enhancement. Hence, you are requested to submit the objections, if any, in this regard by 30.01.2014."

3.1. According to the Ld. CIT(A), there was however, no compliance on the part of assessee to the enhancement notice 3 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

issued by him and consequently, he proceeded to enhance the income of assessee by observing as under :

"6.9. However, the appellant neither filed any written submissions nor made personal attendance on the date of hearing i.e., on 30.01.2014, giving rise to the presumption that the appellant does not have any objections for such proposals. Perused the observations of the assessing officer in the assessment order, subsequent reports along with the submissions of the appellant. Briefly stated, the facts of the case are that the appellant introduced Rs.1,06,36,000/- into the books as cash credits, which were originally not identified with names of creditors, but was subsequently tried to be explained through the confirmations furnished from few of the creditors. Ultimately, the genuineness of transactions or creditworthiness of the creditors was accepted to be established in case of Mr. Praveen Rao for Rs.13,00,000 and a further sum of Rs.10,00,000 was treated as the credit explained through the part of agricultural income earned by the assessee. Thus after giving credit to the said amounts of Rs.23,00,000 (Rs.13,00,000 + Rs. 10,00,000), the AO treated the balance amounts of Rs. 83,36,000 (1,06,36,000-23,00,000) as unexplained credit as unexplained income of appellant, for the year under reference.

The fact revealed during the assessment and the remand proceedings, indicate that the balance of credits were not explained by tile appellant with the help of relevant information or evidence so as to prove that the amounts of Rs. 83,36,000 represent the explainable credits. In fact, the appellant could furnish the confirmations from few of the parties/creditors, and out of such confirmations/ information, the assessee could not prove the credits to the satisfaction of the assessing officer. Where the Identity of the creditors not established, and the genuineness of the transaction not established, the amounts attributable to such parties deserve to be treated as unexplained credits, even without going into the third and important aspect of the cash credits, i.e. the creditworthiness of the creditor. In this case, the appellant could not explain the credits with reference to the identity of the creditors, their creditworthiness apart from the genuineness of transactions which were nothing but cash credits/deposits in the books of appellant, except in the case of Mr. Praveen Rao, for an amount of Rs. 13,00,000/- Further, a credit of Rs. 10,00,000/- was treated to have 4 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

been explained through agricultural income of the appellant and accepted by the assessing officer, thereby leaving a balance of Rs. 83,36,000/- which deserved to be treated as unexplained credits, as per the provisions of Sec. 68 of the Income-tax Act. In fact, the appellant given up in explaining the cash credits. and felon estimation of profits of the business, on the ground that books of account are not reliable and correct profits cannot be ascertained on the basis of such books. On these lines, it can be held that the amount of Rs. 83,36,000/- which were brought into the books of account of assessee, are required to be treated as unexplained credits. Accordingly, the addition of Rs. 83,36,000/- being the amount representing the unexplained credits, brought into the books, for the year under reference, stand confirmed. This ground of appeal is treated as dismissed.

6.10. As indicated, the appellant during the appellate proceedings have submitted and pointed out that the books of account were not reliable and profits of the business may be estimated. The appellant cited the reasons for non reliability of books, which are both favourable to the revenue as well as the appellant himself through certain illustrations and while citing the observations of the assessing officer during the assessment proceedings. The appellant also relied on certain judicial decisions in this regard. In this context, it may be relevant to mention that there is no second opinion that the books of account of assessee are not reliable and estimation of business profits is required to be made. The appellant was requested to explain as to why such profit should not be estimated ©12% on the turnover, for which there was no response from the assessee/appellant, within the stipulated time. It has been held that where the books of account are not reliable, profit is required to be estimated. The submissions of the appellant and the case law relied upon by the assessee (Namasivayam Chettiar Vs. CIT 38 ITR 579,588 (SC) support such view. However, such estimation need to be reasonable and can be relatable to the facts of case with reference to the business in similar lines, in the vicinity, where the other factors are comparable. It is also a fact that the catena of judicial decisions by ITAT, Hyderabad, Including the decision in the case of C. Eswar Reddy and Others (ITA No. 668 & 670/HYD/2009 dt. 31.01.2011), held that the profits of business of civil contracts/construction may vary from 8 to 120/0, which may depend on facts relatable to each case.

5 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

In this case, it may be reasonable to hold that the assessee's profit in business receipts is not less than 12% and the failure on part of the appellant to reply on the notice of enhancement may indicate these facts. Accordingly, the profits of the business are required to be estimated at 12% of the gross business receipts of the assessee for the year under reference. In fact, the appellant has made a request vide letter dt. 09.01.2014, to estimate the profits of business at 8% on a total business receipts of Rs. 11,90,32,243/-. However, the appellant has not explained or indicated the reasons or basis for adopting the estimated rate of profit at 8%. No details in this regard are forthcoming. Hence, on the proposed lines of show cause notice dated 09.0l.2014, the net profits on business receipts need to be adopted at 12%. Accordingly, the assessing office)" is directed to compute the profits @ 12% on business receipts, while quantifying the correct business receipts. The depreciation as requested by the appellant in his submissions is not allowable, as per the decision of ITAT in the case of C. Eswara Reddy and Others, where the profit was deemed to have been calculated at the net of depreciation, and as such no separate deduction on account of depreciation is allowable in this case.

6.11. As indicated, the appellant requested for estimation of the business profits, holding the books of account to be unreliable, without any reference to the additions, to the extent of Rs. 83,36,000/-, on account of treating the ca.sh credits, as unexplained. Further, the appellant failed to respond to the letter dt.09.01.2014, wherein it was proposed to estimate the business profits @12% on the gross business receipts apart from treating the cash credits as unexplained. This leads to the conclusion that the appellant does not have any objection for such treatment/addition. The catena of judicial decisions on the subject matter confirm such view. Decision of Hon'ble Supreme Court in the case of CIT Vs. Devi Prasad Viswanath Prasad ( 72 ITR 194), which was in turn relied upon it's own decision in the case of Kale Khan Mohammed Hanif Vs. CIT ( 50 ITR 1), confirm the view, wherein it was broadly held that "the amounts of cash credits could be assessed to tax as income from undisclosed sources in addition to the business income computed by estimate. The taxing authorities were not precluded from treating the amounts of credit entries as income from undisclosed sources, simply because the entries appeared in books of 6 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

business whose income they had previously computed on a percentage basis." Thus, based on the ratio laid down by Hon'ble Supreme Court, the assessing officer is not precluded from adding any 'unexplained cash credit' as 'undisclosed income' of business and it is for the assessee to prove that the cash credits represented the Income which has already been taxed. In this case, the unexplained cash credits of Rs. 83,36,000/- was not proved to be representing the estimated business profits. Accordingly, the addition on account of estimation of profits on business Income at the rate of 12%, do survive, in addition to the addition of Rs.83,36,000/- made on account of treating the cash credits as unexplained credits. To this extent the estimated income of Rs. 1,42,83,869/-, @ 12% on the business receipts of Rs. 11,90,32,243/- stand enhanced by this order, as compared to the addition of Rs. 83,36,000/ - made by the assessing officer on account of treating the cash credits as unexplained as per provisions of Sec. 68, and confirmed in this order. Penalty proceedings u/s. 271(1)(c) are directed to be initiated separately, on the addition of Rs. 1,42,83,869/-, which is treated as the unexplained income, resulting in concealment of income which was also, indicated by the appellant.

4. Aggrieved by the order of Ld. CIT(A), assessee has preferred this appeal before the Tribunal.

5. We have heard the arguments of both sides and also perused relevant material on record. The preliminary issue raised by Ld. Counsel for the assessee is that the impugned order has been passed by Ld. CIT(A) enhancing the income of assessee without giving proper and sufficient opportunity of being heard to the assessee. In support of this stand, an affidavit of assessee is filed by Ld. Counsel for the assessee affirming on oath as under :

"1. I am the appellant in Appeal No.0397/2011- 12/CIT(A)-VI and I am fully conversant with the facts of the appeal as well as the progress of the appeal proceedings, as I have been accompanying my Advocates during such proceedings.

7 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

2. My Counsel Dr. C.P. Ramaswami informed me in the second week of January 2014 that he had received a notice for enhancement from the office of the CIT (Appeals)-VI, Hyderabad, posting the case for the next date of hearing on 30 January 2014.

3. When I enquired whether my counsel would be filing any written submission on the enhancement notice, he said that he would make oral submissions thereon on the date of hearing and that he was going to rely on a Supreme Court decision reported in Volume 72 at page 1.94 on the issue raised in the notice for enhancement.

4. On 30 January 2014 I reached IT Towers around 11.00 am and got an entry pass from the office of the PRO in IT Towers and waited on the 6th Floor 'A' wing along with my Advocate Mr. E.Ravi since Dr.C.P.Ramaswami told us that he would come directly from ITAT after attending to cases before the Tribunal that day. Accordingly, Dr.C.P.Ramaswami came to IT Towers around 12.00 noon and t us on the 6th Floor 'A' wing. He was carrying ITR Volume 72 with him.

5. When my counsel wanted to send in the slip, we were told by the staff members of CIT (Appeals)-VI, Hyderabad that the learned CIT(Appeals)-VI, Hyderabad was away from the headquarters on official training. When Mr. E. Ravi, Advocate wanted to mark the attendance in any register for counsel, he was told that the register had been discontinued after August 2013. However, the lady staff member in that office said that she would inform the CIT (Appeals)-VI after his return from training programme. Consequently, we understood that we would get another notice of hearing.

6. To our shock, we were informed by our counsel Dr. C.P. Ramaswami that he' received the appellate order (dated 07.02.2014) on 5th May 2014 and in that order in paragraph 6.9 the teamed CIT(Appeals)- VI had written, "However, the appellant neither filed any written submissions nor made personal attendance on the date of hearing i.e., 30.01.2014, giving rise to the presumption that the appellant does not have any objections for such proposals."

8 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

7. The above observation of the "non-attendance on 30.01.2014" is totally contrary to the facts. It is shocking to find-out that on a day when the learned CIT(Appeals)-VI was away on official training (and did not take steps to re-post the case before leaving on such training), he arbitrarily concluded a month later that none attended on 30 January 2014 without verification."

6. As is clearly evident from the averments made by assessee in his affidavit, Ld. CIT(A) has passed the impugned order enhancing the income of the assessee without giving proper and sufficient opportunity of being heard to the assessee and this position is not disputed even by learned D.R. In our opinion, the impugned order passed by Ld. CIT(A) enhancing the income of the assessee, thus, is in violation of the principles of natural justice. Accordingly, we set aside the same and remit the matter back to him to dispose of the appeal of the assessee afresh, after giving the assessee a proper and sufficient opportunity of being heard.

7. In the result, appeal of the assessee is treated as allowed for statistical purposes.

Order pronounced in the open Court on 09.01.2015.

Sd/- Sd/- (ASHA VIJAYARAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER

Hyderabad, Dated 09th January, 2015

VBP/- 9 ITA.No.1240/Hyd/2014 Mr. M. Rama Mohan Rao, Secunderabad.

Copy to

1. Mr. M. Ram Mohan Rao, East Marredpally, Secunderabad.

C/o. Dr. C.P. Ramaswami, Advocate, Flat Nos. 102 & 303, Gitanjali Apartments, Plot No.108, Srinagar Colony, Hyderabad - 500 073.

2. Addl. CIT, Range-10, Hyderabad

3. CIT(A)-VI, 6A, I.T. Towrs, A.C. Guards, Hyderabad-004.

4. CIT-V, Hyderabad.

5. D.R. I.T.A.T. "B" Bench, Hyderabad.