1998-VIL-116-ITAT-AHM

Equivalent Citation: ITD 067, 411, TTJ 062, 685,

Income Tax Appellate Tribunal AHMEDABAD

Date: 10.02.1998

ASSISTANT COMMISSIONER OF INCOME-TAX.

Vs

KHAMBHATA FAMILY TRUST.

BENCH

Member(s)  : B. L. CHHIBBER., H. L. KARWA.

JUDGMENT

Per Shri B.L. Chhibber (A.M.) - This appeal by the revenue is directed against the order of CIT(A) I, Ahmedabad. As many as five grounds have been raised. The same are discussed and disposed of as follows:

2. Ground No. 1 reads as under:

"The learned CIT(A) I erred in law and on facts in deleting the addition of Rs. 36,42,030 for suppressed production."

The assessee, Khambhata Family Trust, is the proprietor of an industry known as 'M/s. Pioma Industries' situated at Kalol Dist., Mehsana, Gujarat. It is a discretionary trust which was created in the year 1982 for the benefit of Shri Areez P. Khambhata, Smt. Persis A. Khambhata (Wife), and their minor son and two daughters. The trust started the business of M/s. Pioma Industries in the year 1984 in the backward area by setting up a new industry with new machines etc. to manufacture soft drink concentrate marketed under the brand name of "Rasna". The soft drink concentrate along with the flavour and literature is packed inside the printed Ceka Cartons which is also patented and distinctly known by the customers. Two sets of books of account are maintained i.e. one by the proprietor i.e. Khambhata Family Trust for its income from M/s. Pioma Industries and interest etc. and another for the business in the name of M/s. Pioma Industries. M/s. Pioma Industries are maintaining cash book, sales journal, purchase journal, ledger, Bank pass books, vouchers of purchases, bills of purchases, copies of the bills of sales, vouchers of expenses, various registers for the receipt of packing materials, registers for issue of packing material, production register and supply register. However, no register is maintained to record day to day consumption of raw materials or issue of raw materials or production. Closing stock is valued as per physical verification at the end of the year. The books of account are audited by Chartered Accountants for general accounting purposes and they are also audited by the Tax Auditors under section 44AB of the I.T. Act, 1961.

3. During the year under appeal, which is the second year of business, the assessce had declared sales to the tune of Rs. 5,07,48,470 and the GP earned was of Rs. 1,86,98,721 resulting in GP rate of 37% which was more or less the same as in the earlier year.

4. It is an admitted fact that the soft drink concentrate called 'Rasna' was developed by a special formula by Shri Areez P. Khambhata, main trustee of the assssee-trust. There was a search at the business premises of M/ ¦,. Pioma Industries under section 132 of the Act on 20-11-1987 and in the course of the search it was discovered that there was deficiency in the stock of raw materials to the extent of nearly Rs. 49.78 lakhs. This deficiency was accepted by the assessee in his disclosure petition addressed to the CIT and tax was paid accordingly for the assessment year 1988-89. In the course of the search proceedings, Shri Areez P. Khambhata admitted that day to day register for issue of consumption of raw materials was not maintained and the stocks was valued as per physical verification at the end of the years. It was further stated that right since the year 1978 when the manufacture of 'Rasna' soft drink concentrate started, no day to day stock register was maintained and the reason for this was that the formula for the concentrate was required to be kept secret. It was also admitted by Shri Khambhatta that the secret of mixing the various ingredients for preparing the concentrate with required flavours was only kept to himself. In view of these admissions, the learned Assessing Officer was of the opinion that the figure of consumption of raw materials and production of finished goods as reflected in the books of account were not reliable. He, therefore, proceeded to determine the correct quantity of production of finished goods on the basis of certain parameters having direct bearing with the production process. The parameters chosen by him were:

1. Consumption of electricity;

2. Consumption of packing materials;

3. Rated capacity of packing materials and Rasna Packs per hour of working.

These parameters have been discussed by the learned CIT(A) in great detail in his order. In short, it can be said that the production was not in consonance with the consumption of electricity, consumption of packing materials, and rated capacity of packing machineries of Rasna packs per hour of working/Applying the above parameters the learned Assessing Officer worked out the production figure at 88,558 cases (each case contains 200 Ceka Cartons) as against the production shown at 82,214 cases resulting in the alleged suppression of production of 6345 cases valued at Rs. 36,42,030 at the rate of Rs. 574 per case calculated at average selling price exclusive of excise duty and sale tax. Accordingly he made an addition of Rs. 36,42,030 to the income of the assessee.

5. The assessee appealed to the CIT(A). Detailed submissions were made before the CIT(A) who has discussed the same thread bear in his detailed order and gave a finding in favour of the assssee as follows:

"A. The Assessing Officer has wrongly taken into consideration the so called variations in electricity consumption and that consumption of electricity, by itself, cannot form a reliable test to determine the production. The good conduct of the Assessee in showing better production in succeeding year cannot be allowed to land the assessee in difficulty in his own case for prior assessment year.

B. Wastage of 11.27% of consumption of glass vials cannot be treated as high or excessive as they are purchased from scrap dealers who in turn had purchased the same from the rejected stocks of pharmaceutical Co. Even otherwise if an over all picture is kept in mind the percentage is reasonable. So far as the consumption of Ceka Cartons used for packing its wastage at 1.38% is quite reasonable considering manufacturing defects in the Cartons supplied by three manufacturers. Even otherwise the basis of calculation of the Assessing Officer was not sustainable.

C. The calculation of alleged suppressed production with reference to the rated capacity of the packing machine and consequential addition made was unsustainable. It was found that the Assessing Officer had adopted average at 42 packets per hour throughout the year in all the three shifts; whereas according to the statement of the supervisor recorded at the time of search the production would vary from 40 to 48 packets per hour and that average rate of packing would be 40 packets per hour. Further the Assessing Officer had not taken into consideration actual working hours of the machine during a day of three shifts by taking into consideration various factors affecting the working of the machine. In fact the actual working hours would be only 21 hours and 10 minutes and not 22 hours as worked out by the Assessing Officer Similarly the time lost due to stoppage of working because of lunch, meals, normal tea break, power failure, change of labours etc. was not taken into consideration. If all these factors are taken into consideration the possible production during the year would be more or less the same as has been disclosed in the books of account.

D. The only ground for estimating the production was that the assessee was not maintaining record for day to day consumption of raw materials. However, this issue has been held in favour of appellant in the Assessment Year 1985-86 by CIT(A) (this order of CIT(A) has been accepted by the department and has not been a subject matter of second appeal). The assessee had given good pareasons to show as to why quantity record are not maintained. In view of these learned CIT(A) deleted the addition made of the ground of suppressed production in 1986-87. As addition for Assessment Year 1987-88 was made on identical grounds learned CIT(A) in his order for Assessment Year 1987-88 deleted the addition for following his order for 1986-87."

The CIT(A) accordingly deleted the impugned addition.

5A. Shri Surendra Pal, the learned D.R. strongly supported the order of the learned Assessing Officer. He submitted that the parameters like the consumption of electricity, consumption of packing materials, and the rated capacity of packing machineries of Rasna packs per hour of working had rightly been applied by the learned Assessing Officer to reject the trading version of the assessee. He submitted that it created doubt that though the consumption of electricity was more and the consumption of packing material was more the production was less which clearly showed that the assessee was suppressing production. He further submitted that during the course of the search, though the search period pertains to the subsequent assessment year Shri Khambhata had accepted some defects in his books of account and had made a disclosure. According to him the statement of Shri Khambhata has very much relevance and in support of his contention he relied upon the judgment of Kerala High Court in the case of V. Kunhambu & Sons v. CIT [1996] 219 ITR 235/86 Taxman 477. The learned DR further submitted that it was admitted by the trustee Shri Khambhata that no day to day record of production and consumption was maintained and accordingly it is a fit case for rejection of the books of account. According to the learned D.R. the learned Assessing Officer has rightly worked out the suppression of production to the extent of 6345 cases and accordingly the addition of Rs. 36,42,030 was fully justified.

6. Shri S.N. Soparkar, the learned counsel for the assessee strongly supported the order of the learned CIT(A). He submitted that the mere fact that there was wide disparity in the consumption of electricity would not justify the rejection of accounts without any supporting material. In support of this contention he relied upon the judgment of Kerala High Court in the case of St. Teresa's Oil Mills v. State of Kerala [1970] 76 ITR 365, the judgment of Andhra Pradesh High Court in the case of N. Raja Pullaiah v. Dy. CIT [1969] 73 ITR 224. He further relied upon the case of Shyam Rice Mills v. CST [1988] UPTC 375 (All.) wherein it was held thus:

"Consumption of electricity disproportionate to production - By itself no ground for rejecting account books."

He further submitted that a similar view has been taken in the case of CST v. V.B.M. Malviya Industries [1988] UPTC 372 (AIL). As regards the consumption of packing materials he reiterated the submissions made before the CIT(A). He submitted that the glass vials rejected by the pharmaceutical agencies were purchased from scrap dealers which were utilised for packing Rasna liquid. It was pointed out by the Assessing Officer that the glass vials were purchased in bulk and there were breakages in course of transportation and handling of consumption. Similarly since these glass vials are washed and cleaned, during this process breakage at this point is also involved. No record of wastages of glass vials were maintained. It was further pointed out that the learned Assessing Officer frog-leaped to the sudden conclusion that the shortage shown in the books was not correct because of the fact that the shortage could not be established. As regards Ceka Cartons, the learned counsel submitted that the learned Assessing Officer has clearly ignored the evidence that because of considerable wastage of Ceka Cartons due to defective mechanical operations and delay in time setting considerable wastage had occurred. According to the learned counsel the Assessing Officer erred in assuming without any basis that the rejected Ceka Cartons could be used. As a corollary the learned Assessing Officer was not justified in rejecting the assessee's claim for wastage of Ceka Cartons. The learned counsel submitted that a similar wastage was shown in the subsequent Assessment Year i.e. Assessment Year 1987-88 and it was accepted by the Assessing Officer. As regards the comments of the learned Assessing Officer on pouch paper, the learned counsel submitted that the assessee explained that from one kilogram pouch paper 1290 pouches could be made. The Assessing Officer after working out the consumption of pouch paper during the year under appeal viz., 11353 Kgs. observed that the total pouch which could be made worked out to 1,46,45,370 as against which actual pouch paper of 11353 Kgs. The assessee has shown 1,63,41,800 pouches. According to the learned counsel the discrepancy pointed out by the learned Assessing Officer can be reconciled by relying on the fact that the assessee had not only made the pouches from pouch paper but had purchased ready made pouches from market, totalling to 29 lakhs while the discrepancy worked out by the learned Assessing Officer to about 17 lakhs only. On the rated capacity of the packing material the learned counsel submitted that the entire basis adopted by the learned Assessing Officer was purely hypothetical and is far divorced from reality because in the first place the book results disclosed by the assessee have been accepted. Secondly, not an iota of evidence of assessee having sold any goods outside the books of account are brought on record. The learned counsel concluded that the whole addition having been made on a hypothetical basis deserves to be deleted.

7. We have considered the rival submissions and perused the facts on record. This is the second year of production of the assessee. It has maintained regular books of account. The books were found to be duly audited. The GP rate shown at 37% this year favours well with that shown in the earlier year which was accepted by the Assessing Officer in that year. During the year under appeal both the turnover and the GP rate declared are progressive. The assessee has maintained quantitative details of major items and simply because day to day record of production and consumption of some of the raw material has not been kept is no ground for rejection of the results shown by the assessee. Merely because the consumption of electricity was more and the production was less is no ground for rejection of the trading version in view of the ratio laid down in the cases relied upon by the learned counsel and referred to supra. Further reference is invited to the judgment of Hon'ble Punjab High Court in the case of Pandit Bros. v. CIT [1954] 26 ITR 159 wherein it has been held as under: -

"Held, that there was no definite finding by the ITO that the case falls within the proviso to section 13. Even if such finding were to be implied from his order it could not be said that there was material before him which would enable him to come to such a finding. The fact that the profits appeared to him to be insufficient and the fact that no stock register was maintained by the assessee were not materials upon which such a finding could be given, but there were circumstances which might provoke an enquiry. The ITO must discover evidence or material alunde before he could give such a finding. Increasing the taxable income the ITO did not adopt any method or basis and he was not acting according to the provisions of the statute."

Further, in the case of Jhandu Mal Tara Chand Rice Mills v. CIT [1969] 73 ITR 192, the Hon'ble Punjab & Haryana High Court has held as under:

"The accounts of the assessee were accepted in all years upto and inclusive of 1957-58 but in 1958-59 the ITO rejected the accounts and applied the proviso to section 13 on the grounds that no day to day dryage register had been maintained and that in another case the yield proposed to be adopted by him was held to be reasonable by Tribunal, and added Rs. 32,053 to the income disclosed by the assessee. The Appellate Assistant Commissioner on appeal, confirmed the applicability of the proviso to section 13 but reduced the addition to Rs. 15,000. The appeal to the Tribunal was dismissed. On a reference-

Held (1) that the method of accounting adopted by the assessee having been accepted by the department in the previous years and the income computed on that basis, there were not sufficient grounds for applying the proviso to section 13 to the facts of the case.

(2) that even assuming that the proviso was attracted, the income-tax authorities not having determined in any basis of manner of computation of the true income, profits and gains of the assessee firm, were not justified in arbitrarily additing Rs. 15,000 in round figure to the income of the assessee firm."

A similar ratio has been laid down in the case of International Forest Co. v.

CIT [1975] 101 ITR 721 (J & K).

8. We have gone through the detailed order of the learned CIT(A) who has elaborately discussed and rebutted all the issues raised by the learned Assessing Officer. We agree with the learned CIT(A) for the detailed reasons given by him on the three parameters taken note of by the learned Assessing Officer and discussed supra that these three parameters cannot be the basis for rejecting the books of account regularly maintained by the assessee; when there is no evidence with the revenue that purchases were made outside the books of account or the sales were effected outside the books of account. We further note that the Assessing Officer visited the factory premises of the assessee and noted the things by himself. In our view in the type of process in which the assessee is involved and that too on a large scale it is not practicable to maintain day to day record of so many ingredients used by the assessee before putting the same into the mixing machine. The factum of shortage in the production can also not be ignored and there cannot be an ideal situation as envisaged by the Assessing Officer by spending a few hours at the factory premises. After hearing both the sides we are of the considered opinion that there cannot be a tailor made formula when so many factors are involved in the production of the final product. The view that income cannot be estimated by applying a tailor made formula stands supported by the decision of the Ahmedabad Bench Tribunal "B" (V.P. as a Third Member) in the case of Rakesh Kumar G. Gupta v. IAC [IT Appeal No. 1136 (Ahd.) of 1993 dated 28-4-1995 to which one of us (A.M.) was a party. The same view was again confirmed by the Ahmedabad Bench 'B' (V.P. as Third Member) in the case of Babul Products v. Asstt. CIT [1997] 62 ITD 179 (Ahd.) (TM) to which one of us (the A.M.) was a party.

9. In the light of above discussion we do not see any justification for the impugned addition on account of alleged suppression of production. We accordingly confirm the finding of the CIT(A) and decline to interfere.

10. Ground No.2 reads as under:

"The learned CIT(A) erred in law and on facts in directing to treat interest income as business income for the purposes of deduction under section 80HH and 80-1 of the Act."

The assessee trust earned by way of interest Rs. 1,82,284 and the same was taken into business profit on which deduction was claimed under section 80HH and 80-I. The assessee submitted before the Assessing Officer that the interest was earned in the ordinary course of business and was a direct result of the business activities carried on by the assessee and, therefore, it was rightly treated as business income for the purpose of relief under section. 80HH and 80-I of the Act. The Assessing Officer was of the opinion that this income did not form part of the profits and gains of the industrial undertaking so as to be entitled for the aforesaid deductions and, therefore, he did not allow the said deductions.

11. The assessee appealed to the CIT(A). It was submitted before him that since the assessee was running an industrial undertaking in the backward area, it was obliged to keep substantial part of its circulating capital by short term fixed deposit for one year only because there was a dispute about the liability of excise duty with the Central Excise Department for which a provision had been made in the accounts to the extent of Rs. 60 lakhs which had been disallowed in the assessment. Though the assessee was of the view that the product manufactured by it was not excisable, the Excise Authorities had taken a different stand, and, therefore, in order to avoid substantial depletion of its resources in case the decision goes in favour of the Excise Department, the assessee had placed with bank surplus funds as a prudent businessman. There was also another important reason for which the surplus funds were kept in short term deposits. The assessee was required to purchase for the working of the industry raw materials in large bulk quantity and for this purpose Letter of Credit had been opened with the bank. The assessee was required to furnish margin money to the extent of 5096 of the limit under the L/C which was reduced to 25% in April, 1986. The margin was adjusted against the FDRs and, therefore, the assessee was required to pay cash every time towards the margin. Absence of such fixed deposits would have depeted the liquidity of the business in the process of providing margin money in cash. Therefore it was submitted that keeping the surplus funds in the bank for the twin object of providing for a future liability towards excise duty and also for obtaining letter of credit limit was a prudent business decision and, therefore, the interest earned should be treated as business income earned by the industrial undertaking. The CIT(A) agreed to the above submissions, and directed the Assessing Officer to allow relief under section 80HH and 80-I observing as under: -

"On careful consideration, I am of the view that the appellant was never an investor of money and it had no motive to earn interest from such investment as short term fixed deposits. The surplus working funds were utilised by way of short term fixed deposits for the purpose of providing for a contingency which was looming large by way of Central Excise claim and also for providing margin towards limit under the Letter of Credit as sanctioned by the Bank. Therefore, the surplus money of the business was utilised only for the purpose of business in the normal course of carrying on of the business and hence the interest income earned is to be treated as being part of the business profit of the industrial undertaking. Therefore, the relief under section 80HH and 80-1 has to be allowed in respect of the same income".

Shri Surendra Pal, the learned D.R. strongly supported the order of the learned Assessing Officer. He submitted that the assessee had invested surplus funds in fixed deposits and the interest accrued thereon should be treated as income from other sources. He drew our attention to the provisions of section 80HH and 80-I and submitted that the benefits under these sections were available only in respect of profits and gains derived from an industrial undertaking. According to him income earned on fixed deposits by way of interest could not partake the character of profits and gains derived from business. He therefore submitted that the CIT(A) was not justified in directing the learned Assessing Officer to allow relief under section 80HH and 80-I.

12. In support of his contention the learned D.R. relied upon 12 ITR 95 (Bom.) (sic), Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd v. CIT [1983] 143 ITR 590/14 Taxman 43 (MP), Sterling Foods v. CIT [1984] 150 ITR 292/20 Taxman 55 (Kar.) and Cochin Co. v. CIT [1978] 114 ITR 822 (Ker.).

13. Shri S.N. Soparkar, the learned counsel for the assessee strongly supported the order of the learned CIT(A). He submitted that the assessee used to import raw materials and also used raw materials from domestic-market in bulk for which it was required to issue Letters of Credit (L/C). The assessee's bankers were insisting that the assessee shall place sufficient amount with it so as to enable it to issue L/C against the security of the said deposit. Further the assessee was facing on going disputes with the Central Excise Department and accordingly as explained before the CIT(A) the assessee like a prudent businessman kept some money in the form of fixed deposits with its bankers.

According to the learned counsel it was a commercial transaction and was part and parcel of the assessee's business. He relied upon the judgment of Gujarat High Court in the case of CIT v. Gujarat Mineral Development Corpn. [1981] 132 ITR 377. He further submitted that in the following cases it has been held that such income is profit derived from industrial undertaking:

1. CIT v. West Coast Paper Mills Ltd. [1992] 193 ITR 349 (Bom.)

2. CIT v. Dunlop India Ltd. [1992] 197 ITR 34 (Cal.)

3. CIT v. Balmer Lawrie & Co. Ltd. [1995] 215 ITR 249/83 Taxman 520 (Cal.).

4. CIT v. Tamil Nadu Dairy Development Corpn. Ltd. [1995] 216 ITR 535 (Mad.)

5. CIT v. South India Shipping Corpn. Ltd [1995] 216 ITR 651 (Mad.)

14. We have considered the rival submissions. Whether interest income will be income from business or income from other sources will mainly depend upon the facts of each case. It is evident that in this case the assessee used to import raw materials and, also used raw materials from domestic market in bulk for which it was required to issue Letters of Credit (L/C). The assessee's bankers were insisting that the assessee shall place sufficient amounts with it so as to enable it to issue L/C against the security of the said deposits. Thus it was out of business compulsion that the assessee had to deposit money in fixed deposits and consequently earned interest thereon. It is also a fact that the assessee had an on going dispute with the Central Excise Deptt. According to the assessee its produces were not liablte to excise duty but the Central Excise Deptt. had held a contrary view. Under these circumstances the assessee rightly apprehended that it may be required to make the payment of huge amount of excise duty at any point of time. As a matter of fact in later years, the assessee was called upon to pay huge excise duty amounting to Rs. 5.75 crores out of the liability of Rs. 11 crores. In our view, the assessee as a prudent businessman made a provision to keep apart certain funds so as to be able to make payment of excise duty if required at any time without any liquidity crunch. Therefore, in our opinion, the purpose of placing money in deposit was not to earn interest on investment of surplus funds, but the investment was necessitated by compelling business requirements. In our view the issue stands covered in favour of the assessee by the decision of Gujarat High Court in the case of Gujarat Mineral Development Corpn. In the said case it was observed as under-

"Now, in our opinion, the main question that has to be considered is whether this amount which was deposited in short-term deposits represented any money not required for the purpose of the business, and secondly, whether this amount could be said to be capital employed in the business and r. 19(4) is part of the rules for the computations of the capital employed in the industrial undertaking. If the amounts were lying idle or in the coffers of the assessee-company they would undoubtedly be considered to be part of the assets of the company being cash in hand. Similarly, if the amounts were allowed to lye in the current account of the assessee with any bank, that would have represented assets both under r. 19(1)(c) or (1)(d) so far as assessment year 1967-68 is concerned and under r. 19A(2)(v) so far as assessment years 1968-69 and 1969-80 are concerned."

Accordingly we concur with the finding of the CIT(A) and dismiss this ground.

15. Ground No. 3 reads as under:

"The Ld. CIT(A) erred in law and on facts in holding that additions/ disallowance under section 43B could not be regarded as assessee's real income for the purposes of calculating interest chargeable under section 215 of the Act."

During the year under appeal the assessee trust had provided sales tax for the last quarter in its profit and loss account which was paid during the stipulated time in the next year. By invoking the provisions of section 43B of the I.T. Act, 1961, the Assessing Officer added the said amount, consequently the assessee was found liable to pay interest under section 215 of the Act.

16.On appeal the CIT(A) took the view that no interest should be leviable under section 215 of the Act as the assessee could not have anticipated such addition and that in any case this addition did not represent real income of the assessee.

17. Shri Surendra Pal, the learned D.R. strongly supported the order of the Assessing Officer. He submitted that the income finally assessed attracted interest under section 215 of the Act and accordingly the Assessing Officer was justified in levying interest under section 215. In support of his contention he relied upon the decision of the Tribunal Kanhaiya Lal v. Asstt. CIT[1995] 53 TTJ (Jp.) 192 and the judgment of Punjab & Haryana High Court in the case of ITO

v. Kesho Ram [1993] 199 ITR 164.

18. Shri S.N. Soparker, the learned counsel for the assessee strongly supported the order of the learned CIT(A).

19. We have considered the rival submissions and perused the facts on record. It is not in dispute that the assessee trust had made the payment of tax within the stipulated period. The Hon'ble Gujarat High Court has held in the case of CIT v. Chandulal Venichand [1994] 209 ITR 7/73 Taxman 349 that such amount would be allowable as deduction in the year of claim itself and not in the year of payment. The above judgment of the jurisdictional High Court has been upheld by the Hon'ble Supreme Court in East India Pharmaceutical Works Ltd. v. CIT[1997] 224 ITR 627/ 91 Taxman 185. Hence it would be axiomatic and incongruous to hold that though the principal amount itself has been allowed as deduction, the interest would be still payable. In any case the assessee could not have visualized that such amount could not be allowed as deduction and therefore also the assessee trust is covered by the decision of Gujarat High Court in the case of CIT v. Bharat Machinery & Hardware Mart [1982] 136 ITR 875. We accordingly concur with the findings of the learned CIT(A) and decline to interfere.

20. Grounds No.4 & 5 read as under: -

"4. The ld. CIT(A) ought to have upheld the order of the Assessing Officer to the above extent in view of the circumstances and facts of the case.

5. It is, therefore, prayed that the order of the CIT(A) may be set aside and that of the Assessing Officer may be restored to the above extent."

Obviously these grounds are general in nature and call for no comments. The same are accordingly dismissed.

21. In the result, the appeal is dismissed.

 

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