Vildirect: IncomeTax-caselaws-2020-VIL-1031-ITAT-JAI

2020-VIL-1031-ITAT-JAI

Income Tax Appellate Tribunal JAIPUR

ITA No. 945/JP/2018

Date: 21.02.2020

SHRI PRAKASH CHAND OSTWAL

THE INCOME TAX OFFICER, WARD 3 (3) JAIPUR.

For the Assessee : Shri SC Jain (CA)
For the Revenue : Smt. Chanchal Meena (JCIT)

BENCH

Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM

JUDGMENT

PER VIJAY PAL RAO, J.M.

This appeal by the assessee is directed against the order dated 25th June, 2018 of ld. CIT (A)-1, Jaipur for the assessment year 2012-13. The assessee has raised the following grounds of appeal :-

“ 1. That the learned CIT (A)-1, Jaipur had erred at law as well as on facts under his powers in invoking provisions of section 145(3) for confirming the trading addition made by the AO of Rs. 1,00,000/- without pointing out any defects in the stock details, purchase, sales and/or any other defects except that quantitative figures of two items out of various items of goods traded and having mismatch.

2. That the learned A.O. had erred at law as well as on facts in making trading addition of Rs. 1,00,000/- and the CIT (A) further erred in confirming the trading addition of Rs. 1,00,000/- despite the trading results for the year were better over the preceding assessment year.

3. That the learned A.O. had erred at law as well as on facts in making disallowance of direct expenses of freight incurred on transportation of goods of Rs. 1,75,300/- and the CIT (A) had further erred in confirming and restricting the disallowance to Rs. 87,650/-.

4. That the learned A.O. had erred at law as well as on facts in making disallowance of Rs. 1,50,000/- out of Office Administrative Expenses and the learned CIT (A)-1, Jaipur had further erred in confirming and restricting the disallowance to Rs. 75,000/-.

5. That the learned A.O. had erred at law as well as on facts in making additions to the house-hold expenses of Rs. 1,04,500/- and learned CIT (A) had erred further in confirming the addition of Rs. 1,04,500/-.

6. That the appellant craves for the leave to add, alter or amend all or any of the grounds of appeal on or before the hearing.”

Ground nos. 1 to 3 are regarding rejection of books of account by the ld. CIT (A) by invoking the provisions of section 145(3) of the IT Act and confirming lump sum trading addition made by the AO as well as disallowance of direct expenses on account of freight charges.

2. The assessee is an individual and proprietor of M/s. Shah Champalal Jawaharlal engaged in the business of trading in various agricultural produce as well as commission agents. The assessee filed his return of income on 26th September, 2012 declaring total income of Rs. 6,23,390/-. During the scrutiny assessment, the AO asked the assessee to furnish the details of opening stock, purchases, sales and closing stock of goods both in terms of quantity and value. The AO also asked the assessee to produce the Stock Register as well as the basis of valuation of closing stock along with supporting evidence. On examination of the details furnished by the assessee, the AO noted that the assessee has claimed shortage of certain commodities without any reasonable explanation and further the assessee has also claimed storing charges without supporting evidence to prove the genuineness of the shortage claimed by the assessee. The AO accordingly made a lump sum addition of Rs. 1,00,000/- to the total business income of the assessee. The AO has also made a disallowance of direct expenses on account of freight charges @ 10% and thereby an addition of Rs. 1,75,300/- was made to the income of the assessee.

The assessee challenged the action of the AO before the ld. CIT (A) and contended that when the AO has not found any defect in the books of account of the assessee, then the adhoc disallowances made by the AO are not justified. The ld. CIT (A) while exercising his perennial power being coterminous of the power of the AO, rejected the books of account of the assessee by invoking the provisions of section 145(3) of the IT Act on the ground that books of account of the assessee are not reflecting the true state of affairs and consequently confirmed the lump sum addition of Rs. 1,00,000/- being trading addition as well as the disallowance of direct expenses restricted to 5% as against 10% disallowed by the AO.

3. Before us the ld. A/R of the assessee has submitted that the assessee’s books of account are duly audited in Form No. 3 CD which was filed before the AO. The AO has called for the details which were produced by the assessee and even the Audit Report clearly states the valuation of the stocks at cost or realization whichever is less. Therefore, there was no ambiguity about the method of valuation of the stocks/inventories, however, the AO has given a finding which is contrary to the record that the assessee has valued his stocks at market price. He has also referred to the details and documents produced before the AO and submitted that the assessee produced all the requisite details and stock register and quantitative as well as qualitative details of stocks. The ld. CIT (A) has misunderstood these details and observed that the assessee has submitted two sets of details which are not matching. Thus the ld. A/R has submitted that the AO as well as the ld. CIT (A) proceeded on assumption of incorrect facts which are contrary to the record.

Further he has contended that the result of the assessee’s business for the year under consideration are better than preceding years and, therefore, even after rejection of books of account, no addition is called for. Thus the ld. A/R has submitted that the additions sustained by the ld. CIT (A) on account of lump sum trading addition as well as direct expenses of freight charges are unjustified and liable to be deleted. The ld. A/R relied upon the following decisions :-

CIT vs. Gupta K.N. Construction Co. 371 ITR 325 (Raj. HC)

CIT vs. Inani Marbles P. Ltd. 316 ITR 135 (Raj. HC)

4. On the other hand, the ld. D/R has relied upon the orders of the authorities below and submitted that the AO as well as the ld. CIT (A) has pointed out various infirmities and defects in the books of account maintained by the assessee.

Therefore, the ld. CIT (A) has rightly rejected the books of account of the assessee by invoking the provisions of section 145(3) of the IT Act.

5. We have considered the rival submissions as well as the relevant material on record. At the outset, we note that the AO himself has noted the fact that the GP declared by the assessee for the year under consideration is 8.60% on total sales of Rs. 2.82 crores in comparison to the GP of the last year at 8.53% on total sales of Rs. 2.52 crores. The AO has also observed that during the year under consideration the assessee has declared better GP in comparison to the preceding years. We further note that even if the past history of the assessee is considered, the GP declared by the assessee for the year under consideration is better than the average of the past history. For ready reference, we reproduce the details of the turnover, GP for the assessment years 2011-12 to 12-13 as under :-

A.Y.	Turnover	Gr. Profit	G.P. Rate
2010-11	3,91,74,792	32,09,360	8.19%
2011-12	2,52,82,530	21,51,272	8.53%
2012-13	2,82,40,034	24,29,614	8.60%

These facts are not in dispute as the AO himself has accepted that the GP for the year under consideration at 8.60% is better than the preceding years. Therefore, even if the books of account of the assessee are rejected by invoking the provisions of section 145(3) of the Act, it would not lead to an automatic addition to the income of the assessee. The AO has to estimate the income of the assessee on the basis of best judgment and in exercising his power under section 145(3) read with section 144 of the IT Act the AO is bound to estimate the income on some proper and reasonable basis. It is settled proposition of law that the past history of the assessee is a proper guidance for estimation of the income after rejection of books of account as held by the Hon’ble Jurisdictional High Court in a number of judgments including the decisions relied upon by the assessee in cases of CIT vs. Gupta K.N. Construction Co (supra) as well as CIT vs. M/s. Inani Marbles Pvt. Ltd. (supra).

Undisputedly, the GP rate declared by the assessee for the year under consideration is better than the past history and, therefore, after rejection of books of account no trading addition is called for. Hence the trading addition made by the AO which is adhoc and the lump sum addition of Rs. 1,00,000/- as well as disallowance of direct expenses which is part of the trading account are not sustainable in law and liable to be deleted. Hence the lump sum addition of Rs. 1,00,000/- made by the AO as well as direct expenses on account of freight charges disallowed by the AO and confirmed by the ld. CIT (A) are deleted.

Ground No. 4 is regarding disallowance of Office administrative expenses.

6. The AO has made disallowance of Rs. 1,50,000/- out of the office administrative expenses which were restricted by the ld. CIT (A) to 50% at Rs. 75,000/-. The ld. A/R of the assessee has submitted that the AO has taken up the various expenses including selling expenses as well as office administrative expenses and then made the disallowance of Rs. 1,50,000/-. The ld. A/R has pointed out that though the AO has made the disallowance on account of office administrative expenses, however, while taking the amount of the expenses he has also included selling expenses without doubting or finding any defect in the claim of the selling expenses. Therefore, clubbing the office administrative expenses, selling expenses and other expenses including depreciation on assets and thereby making disallowances is highly arbitrary and unjustified. He has referred to the various expenses and submitted that when all these expenses are incurred wholly and exclusively for the purpose of business of the assessee and no defect was found by the AO, then making an adhoc disallowance of 1/5th of the said amount is not justified. The ld. CIT (A) has restricted the addition to Rs. 75,000/- is also without any basis. Thus the ld. A/R has contended that an adhoc disallowance made by the AO without having any basis which was confirmed by the ld. CIT (A) may be deleted.

7. On the other hand, the ld. D/R has relied upon the orders of the authorities below and submitted that the AO has pointed out the defects in the claim of the assessee and considered the details of these expenses incurred.

8. We have considered the rival submissions as well as the relevant material on record. The AO has referred to the various expenses claimed by the assessee on account of telephone expenses, depreciation on car, scooter, mobile and other expenses total amounting to Rs. 7,47,206/-. The AO observed that the assessee has not maintained any Call Register, Log Book of Vehicles etc. and, therefore, the personal element in respect of these expenses cannot be ruled out. Thus it appears that the AO has made the disallowance of about 20% of the expenses on the ground of personal element. We find that except the car maintenance and telephone expenses, no other items of expenses could be attributed to personal use or element. Therefore, these small expenses of Rs. 29,848/- and Rs. 13,542/- are only in respect of telephone and car/scooter/mobile expenses. The rest of the expenses are only in respect of the Office and Administrative expenses as well as selling expenses and hence there cannot be any element of personal use in respect of those expenses. Hence taking the entire claim of expenses which includes salary, wages and other office expenses on rent, printing, insurance, computer as well as selling and marketing expenses, the AO has not applied his mind on the issue and just made an adhoc disallowance. The ld. CIT (A) has also not examined the nature of expenses so that the disallowance can be made on account of personal use or element. Accordingly, in the facts and circumstances of the case, the adhoc disallowance made by the AO and sustained by the ld. CIT (A) is deleted.

Ground No. 5 is regarding the addition made on account of Low Household expenses.

9. We have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. The assessee has shown the household expenses of Rs. 16,250/- per month. The AO found that having regarding to the joint family of the assessee and status as well as standing of the family of the assessee, the household expenses of Rs. 16,250/- is very low and accordingly the AO has estimated the reasonable household expenses at Rs. 25,000/- per month which has resulted an addition of Rs. 1,04,500/-. We find that the estimation of the AO of reasonable household expenses of the family of the assessee at Rs. 25,000/- per month is very reasonable and proper and does not require any interference. Even otherwise, if the status and standing of the assessee and his family is taken into account, the household expense of Rs. 25,000/- per month is even at the lower side. Accordingly, we do not find any error or illegality in the orders of the authorities below qua this issue.

10. In the result, appeal of the assessee is partly allowed.

Order pronounced in the open court on 21/02/2020.

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