Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (6) TMI 766 - ITAT AMRITSAR

2015 (6) TMI 766 - ITAT AMRITSAR - TMI - Undisclosed closing stock - difference in the value of stock shown to the bank by the assesses in their stock statements issued to the bank and as declared to the income tax department in their returns of income - Held that:- AO relied on the statement of the bank manager in which he stated that physical verification of the stock was carried out, in support of his finding that the appellant possessed larger quantity of stock than the stock as per books of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

register, I find tat the drawing power register is not authentic on account of non recording of vital information by the bank officers with regard to date of filing of stock statement and date of physical verification of stock. The AO has also not been able to rebut the contention of the A/R of the appellant that the stock was inflated in the stock statement to avail credit from the bank. Thus, the action of the AO of relying on the statement of the bank manager, the stock statement and the dra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ence in stock as on 31.03.2010 could be made by relying on the stock statement dated 20.03.2010. In view of the above, all the grounds of the Revenue are dismissed - Decided against revenue

Addition on non charging of interest from debtors - CIT(A) deleted the addition - Held that:- no infirmity in the order of the ld. CIT(A), since no advance has been made during the year and as such no addition can be made. - Decided against revenue - ITA No.198(Asr)/2013, ITA No.536(Asr)/2013, IT .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

T(A) Asstt. Yr. 1. 198(Asr)/2013 Ishar Infrastructure Developers (P) Ltd. Bathinda 31.01.2013 2009-10 2. 536(Asr)/2013 -do-do- 30.05.2013 2010-11 3. 199(Asr)/2013 Royaldeep Construction Co. -do- 31.01.2013 2009-10 4. 200(Asr)/2013 Bhalaria Constructions -do-do-do- 5. 571(Asr)/2013 Euro Infrastructure & Power L:td. -do- 27.06.2013 2010-11 6. 457(Asr)/2013 Ram Kumar Bansal -do- 22.03.2013 2009-10 7. CO.No.16(Asr)/14 Ram Kumar Bansal -do-do-do- 2. The assessee Sh. Ram Kumar Bansal has also file .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

onus of proving to the department that the closing stock as disclosed in its I.T. return at ₹ 4,66,13,761/- was the correct figures, had squarely shifted on it, which it has failed to discharge. 2. That in the facts and circumstances of the case the ld. CIT(A) has erred both in law and on facts in opinioned that the AO has failed to bring any evidence on record to justify the addition because it was not possible by the bank staff to count or weigh the stock worth crores of rupees lying in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

circumstances of the case the ld. CIT(A) has erred both in law and on facts in not appreciating that on the face of the fact that the assessee had himself supplied a figure of ₹ 10,82,22,030/- as its closing stock as at 20.03.2010 to its bank, the onus of proving to the department that the closing stock as disclosed in its I.T. return at ₹ 7,52,50,550/- was the correct figures, had squarely shifted on it, which it has failed to discharge. 2. That in the facts and circumstances of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Power Register was not sufficient evidence." 5. The Revenue in the case of M/s. Royaldeep Cnstruction Co., in ITA No.199(Asr)/2013 for the assessment year 2009-10 has raised the following grounds of appeal: "1. That in the facts and circumstances of the case the ld. CIT(A) has erred both in law and on facts in not appreciating that on the face of the fact that the assessee had himself supplied a figure of ₹ 1,67,04,000/- as its closing stock as at 31.03.2009 to its bank, the onu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n at various places. He has held that the AO has failed to bring material on record to show that the appellant in fact possessed larger quantity of stock than the stock recorded in the books of account and that a mere reference to the Drawing Power Register was not sufficient evidence." 6. The Revenue in the case of M/s. Bhalaria Constructions, Bathinda, in ITA No.200(Asr)/2013 for the assessment year 2009-10 has raised the following grounds of appeal: "1. That in the facts and circums .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ld. CIT(A) has erred both in law and on facts in opinioned that the AO has failed to bring any evidence on record to justify the addition because it was not possible by the bank staff to count or weigh the stock worth crores of rupees lying in open at various places. He has held that the AO has failed to bring material on record to show that the appellant in fact possessed larger quantity of stock than the stock recorded in the books of account and that a mere reference to the Drawing Power Regi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ment that the closing stock as disclosed in its I.T. return at ₹ 12,13,814/- was the correct figures, had squarely shifted on it, which it has failed to discharge. 2. That in the facts and circumstances of the case the ld. CIT(A) has erred both in law and on facts in opinioned that the AO has failed to bring any evidence on record to justify the addition because it was not possible by the bank staff to count or weigh the stock worth crores of rupees lying in open at various places. He has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

agrave;-vis value of book debts as per Balance sheet filed before the department." 8. The Revenue in the case of Euro Infrastructure & Power Ltd. in ITA No.571(Asr)/2013 for the assessment year 2010-11. has raised the following grounds of appeal: "1. That on the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition of : i) ₹ 2,69,86,910/- on account of excessive stock being difference in stock statements submitted to the bank and balanc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r of the assessee. The 5th and 11th grounds of appeal are as under: Ground No.5: Without prejudice to the above, the ld. AO has erred in law and on facts in recasting the trading account by only taking the inflated figure of closing stock as per bank statement and taking the opening stock as per books of account. If both the figures are taken as per bank account instead of books of accounts, there remain no difference. As such, addition made of ₹ 39155957/- on this account is uncalled for. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issue in all the appeals is identical and was accepted by the ld. counsel for the assesses appearing in all the appeals, Sh. P.N.Arora, Advocate that the issue is identical in all the appeals raised by the Revenue. The minor differences are there in few of appeals which will be discussed in the course of arguments by both the parties. 11. Since the issue in all the appeals is similar, as argued by both the parties, accordingly, with the consent of both the parties, the arguments were made by bo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

09-10 - DCIT vs. Ishar Infrastructure Developers Pvt. Ltd; Bathinda. The brief facts of the case as arising out of AO's order are reproduced hereinbelow: "The assessee continued to pursue his business of contractorship during the year. The case was selected under scrutiny through CASS. Notice u/s 143(2) dated 01.09.2010 was issued and served upon the assessee by ACIT, Circle-1, Bathinda. Therefore, notice u/s 142(1) alongwith detailed questionnaire was issued on 29.11.2010 was issued by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

unts, bills and vouchers were produced which were test checked. The case discussed with him. During the course of scrutiny it was noticed that as per books of account (duly audited by Sh. Sunil Bansal, CA, the closing stock of the firm as on 31.03.2009 stands at ₹ 6,19,75,800/- while as per physical inventory prepared by the assessee and submitted before the bank authorities i.e., Punjab National Bank, Arya Samaj Branch, Bathinda to obtain loan/limit facility from Bank in A/c No.870002192 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ement Amount of Stock (Rs.) 31.03.2008 61,569,440 30.06. 2008 68,507,860 30.09. 2008 72,915,600 31.12.2008 74,605,500 31.03.2009 125,906,092 It reveals the difference of ₹ 6,39,30,292/- (Rs.12,59,06,092/- minus ₹ 6,19,75,800/-) on account of stock as shown in balance sheet submitted to I.T. Department. An opportunity of being heard was afforded to the assessee vide this office letter dated 04.11.2010 to state as to why an addition of ₹ 6,39,30,292/- be not made on account of di .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

been cofronted with the stock statement furnished to the bank for availing the overdraft facility. As per the stock statement as on 31.03.2009, submitted to the bank, the assessee had a stock of ₹ 12,59,06,092/- while as per balance-sheet, the same stood at ₹ 6,19,75,800/-. 2. For this difference in stock, it is respectfully submitted that the statement filed with the bank was in the nature of stock hypothecated and not pledged. The stock remained in the possession and under the con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

P., the works were being executed over a radius of more than 50 km. In view of the nature of business of assessee, it is also difficult to take exact measurements of material/stock actually available and consumed on day to day basis. Thus the value of the stock is shown to the bank on simply estimated basis. 3. Further, it is pertinent to bring it to your kind notice that the assessee had submitted 'performance bank guarantees' to various departments and the works were to be completed wi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

bank does not affect the income of the assessee in any manner. However, it is a fact that whatever amount was received from the bank, the same was put to use wholly, exclusively and necessarily for business purposes and by virtue of it, the assessee in a way, made an effort to increase its income/gains. The assessee has been maintaining books of account on regular basis and keeping complete records of receipts and expenses under different heads. It is also submitted that the object of assessmen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Commissioner of Income tax, Ludhiana v. M/s Santosh Box Factory (P) Ltd. reported at (2011) 44 Reps 473 (P&H) has held as under. : "Income Tax Act, 1961-Section 143(1)-Assessment-The Assessing Officer made addition to the declared income of the assessee on the ground that in the statement with regard to value of hypothecated stock furnished to the bank, the assessee had given higher figure of value of stock than the value reflected in the books of account. The finding was set-aside .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat the statement was given only on estimate basis and value reflected in the books of account are correct, there is no absolute bar to such explanation being accepted. In the present case, the CIT(A) and the Tribunal have recorded a concurrent finding of fact which is not shown to be perverse. No substantial question of law arises. A copy of the aforesaid judgment is also enclosed for favour of your kind perusal and consideration. It does not require any mention that the orders of the jurisdict .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ition shown to the bank was on estimate basis and inflated value was shown to avail more credit from bank." Copy of the aforesaid judgment is enclosed for favour of kind perusal and consideration. iii) In the case of Commissioner of Income-tax vs. Khan & Sirohi Steel Rolling Mills reported at (2006) 200 CTR (All.) 595, the Hon'ble Court has concluded as under: "Tribunal was justified in accepting the explanation of the assessee that in view of the prevailing practice, the value .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which is required to be considered for the purpose of assessment and ordinarily not on the basis of the statement which the assessee may have given to a third party unless there is material to corroborate that statement of the assessee give to a third party, even if it be a bank. The mere fact that the assessee had made such a statement by itself cannot be treated as having resulted in an irrefutable presumption against the assessee. The burden of showing that the assessee had undisclosed incom .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

led. The rejection of the explanation was a matter for the Tribunal. The Tribunal has exercised its jurisdiction and the question decided by it is a question of fact. Therefore, there is no scope for interference with the order of the Tribunal - coimbatore Spinning & Weaving Co. Ltd. vs. CIT (1974) 95 ITR 375(Mad.): TC 1R, 607 and Parimisetti Seetharamma vs. CIT(1965) ITR 532(SC): TC 58R.371 applied" v) Similarly, in the case of CIT v. Relaxo Footwear (2002)123 Taxman 322 (Raj.), it has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

egard may kindly be drawn." The reply of the assessee has duly been considered, the cases referred by the counsel of the assessee in his written submissions are distinguishable on the ground of facts and circumstances of the case as they are entirely different. It was noticed that as per books of account as reported by the Chartered Accountant in the balance sheet which is part of the audit report form No.3CB audited by Sh. Sunil Bansal, CA the closing stock of the firm as on 31.03.2009 is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

stock of the assessee as provided by them which has been verified by the Bank Manager and again signed by Incharge Incumbent Manger of the branch of the bank. Certified copy of the page No.36 of the register showing periodical position of stock of the assessee as available with the bank for this period is submitted to the department. The value of quantified stock mentioned in drawing power register as obtained from the bank is reproduced as under:- Sr. No. Date Value of stock as submitted by th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ble, the assessee continued to have higher stock in his possession till the end of financial year 2008-09 whereas he declared lesser amount of stock in his return of income which reveals a difference of ₹ 6,39,30,297/- (Rs.12,59,06,092/-) minus ₹ 6,19,75,800/-) on account of stock. It may also be noted here that the figures are exact to the last digit as is prima facie visible. Can these be estimates only? In this context, I am inclined to rely on the judgment of Punjab and Haryana H .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the value appearing in the return of income i.e. Regular books of account. The Observations: 1. "From a perusal of the bank statement not only contention of the assessee with regard to the over-valuation of stocks has been found to be misleading, even there is a large variation in the quantity of stocks hypothecated with the bank vis-à-vis those disclosed to the Department". 2. "Not to speak of the over valuation of stock hypothecated with the bank as claimed by the assess .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

see as on March 31st 1977 would work out to ₹ 9,06,000/-." 3. "From the information now collected by the Department, it is evident that during the course of regular assessment proceedings, the assessee had suppressed the particulars of the closing stock both in terms of its quantity and valuation as on March 31st, 1977 and, therefore, income chargeable to tax amounting to ₹ 3,18,108/- had escaped assessment at the time of original assessment." 4. "In my opinion, t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

losure of the material facts and its income had escaped assessment." This being the judgment of Jurisdictional High Court, the contents are all the more valuable, directional and binding. The basic intent of Courts behind their adjudication is that where the figures of quantitative valuations arrived at by applying rates, may these be inflated rates, to secure higher overdraft, are available, the need to be relied upon for the simple reason that the assessee is having complete knowledge of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iple sets of information can be supplied of the same commodity and if it happens, it will be defined in one word i.e., illegal. The please of the assessee has no weightage and is standing on weak footing. The assessee was juggling with account books at will and had scant respect for accounting practices. He supplied information as per his suitability and convenience to two very important revenue earning departments viz. Bank and Income Tax Department, both of which fall under the same Ministry. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Auditing Chartered Accountant before whom valuation statements are not produced or if produced, not taken care of. The general plea of assessees in such cases (where the department detects the difference) is that the stock statements were inflated so that he could get higher overdraft facility. This has occurred a number of times in the past and many courts had the opportunity to deal with the such situations. The jurisdictional High Court has categorically pronounced that where the quantitati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Officer of Bank who physically verified the stock and C) Bank Manager being Incharge Simultaneously, speak of authentication of figures. Is it a mandatory circumstances that only figures or valuations of stock are to be accepted which are in possession of bank and no cognizance should be taken of such valuation where the physical possession is not with bank? Millions of assessee all over the country file statements of stock in their returns and their valuations are accepted by Income Tax Departm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ut such an estimate cannot be imaginary or erroneous so as to create a difference of mammoth ₹ 6,39,30,292/- in valuation of stock. The estimation has to be logical, rational and not blatantly unimaginable. In the instant case the figures reported in stock statements are thoroughly quantified after giving valuation of articles like cement, steels, bricks etc. and that too several times in a year duly certified and accepted by assessee and bank. If the assessee and bank are playing with fig .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

trust by the customer where it is found that the actual value of stock in his possession was far less than actual. There is no compulsion on the Banks to go for verification of every item. That is why, Books of A/c and documents, duly certified to be true by a Chartered Accountant, are prepared and relied upon. Everything can not be verified physically in this world and to be practical, the black and white version is strongly relied upon imposing a sense of trust on the supplier or the documents .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ean that all mobile assets like space crafts, satellites, aeroplanes, ships, multiwheel tankers, trucks, buses etc. are loosely under control of the Bank which finance them so hugely, sometimes into trillion of dollars/rupees. In other words does only "ledge" has the strength of recovery of loan dues and not the "Hypothecatedd" asset? This argument has no force. It is for the Bank to decide how to secure its loan and what terms to impose. I am quite sure that different Banks .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was prepared, verified, signed and submitted before the Income Tax Dett, was not existing. It is worth to mention here that the statement of Sh. Tejinder Sharda, Sr. Bank Manager, Punjab National Bank, Arya Samaj Chowk Branch, Bathinda was recorded on oath on 22.11.2011 in connection with assessment proceedings of one M/s Munis Kumar Bansal Contractor for assessment year 2009-10 where a similar issue was discussed to know the modus operandi of maintaining of record by the banks with regard to ba .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he stock lying at the site is finally signed by the Chief Manager/ Incharge incumbent Officer of the branch. The extract of statement recorded in the case of Munish Kumar Bansal, Contractor is also reproduced as under:- "Question:- Please state you have produced copy of drawing power register page No.76 which is attested by your officer, the value of closing stock as on 30.03.2009/31.03.2009 has been shown at ₹ 1,69,17,000/-. What are the basis of this valuation. Answer:- The party su .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arty has been calculated and allowed at ₹ 100 lacs as on 30.03.2009 on the basis of inventory." Thus, it is loud and clear that Drawing Power Register figures of the bank has a formidable basis and is fully authenticated. The information was well concealed by assessee in terms of valuation of stock and I am convinced t hat unaccounted purchases (Purchase of Building Material) have been made from the sources not known to Department i.e. undisclosed source and therefore, the same needs .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nts were received on account of actual work in progress and not on account of completion of work. Actually, the assessee had submitted stock statements to the bank on last working day of the financial year i.e. on 31.03.2009. At the time, work in progress was also treated as value of closing stock but after receipt of payment or confirmation of work, it was converted into work done instead of work in progress or closing stock. This amount was duly reflected in contract receipts for FY 2008-09. T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ble Courts on this issue. The present reply explains the factual position in this regard which is as under:- In order to maintain DP the stock statement was submitted to the bank as on 31.3.2009. Before giving any further details, clarifications and justification regarding difference in stock position submitted to the bank on 31/3/2009 & the figure available in books of account, it would be appropriate to narrate here the various stage that take place before the finalization of the bill so t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e cross verification by the department official & further submitted to Accounts section for vetting. Once it gets vetted by the Accounts Section, it is further submitted to the concerned Executive Engineer for final approval. Once it gets approved by the Executive Engineer, the bill gets finalized & pass order is executed & various deductions e.g. Income Tax, Sales Tax etc. are made from the Gross Bill. However, the payment to the contractor is made on availability of LOC from the Go .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lls of already completed works to the tune of ₹ 5,42,81,001/- had been included as stock submitted to the bank by the assessee on 31/3/2009 being unaware of the facts regarding finalization of bills and deduction of tax at source. This fact came to the notice of the assessee after submission of stock statement to the bank, at the time of reconciliation of accounts, contract receipts and the tax deductions at source at later stage. On passing of these entries in books of account regarding f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

orking day of every month. In this case the stock statement was submitted to the bank on 31/3/09 and also deducted tax at source as on 31/3/2009 and consequently issued Form-16A afterwards. As the aforesaid developments of deducting tax at source by various departments on total amount bill of ₹ 5,42,81,001/- took place on the last day of the accounting year i.e.30-3-2009 and 31-3-2009, and that too without the knowledge of the assessee, the same could not be taken into account in the stock .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

B&R FATEHABAD 31/03/2009 7,607,240 172,380 11/05/2009 B&R FATEHABAD 31/03/2009 8,600,963 194,898 11/05/2009 B&R FATEHABAD 31/03/2009 9,323,581 211,272 11/05/2009 TOTAL AMOUNT 25,531,784 578,550 4 EMAAR MGF 31/03/2009 3,396,150 77,093 29/05/2009 4A EMAAR MGF 31/03/2009 6,893,129 156,474 29/05/2009 TOTAL AMOUNT(4+4A) 10,289,279 233,567 G.TOTAL 54,281,001 1,042,836 The above mentioned entries have already been got verified by your good office from the records & books produced by the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

taking actual physical stocks verifications etc. This difference is with in margin of tolerance and even various Hon'ble Courts have held that no adverse view in this regard/difference may be taken. Copies of such judgments has already submitted for your kind perusal." The reply of the assessee has been considered. On a careful scrutiny of the reply of the assessee in which he has submitted the details of receipts on 30th /31st March,2009, it has been observed that contention of the as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he closing stock amounts as shown by the bank as on 31.03.09. However, a benefit of ₹ 1,79,24,544/- (Rs.86,00,963/- +Rs.93,23,581/-) as claimed by the assessee and discussed above is allowed in respect of contract receipts received from P B&R Fatehabad out of the sum total of ₹ 2,55,31,784/- as claimed and shown in the statement above. Therefore, a total amount of stock which stands explained as per the reply of the assessee is ₹ 4,66,13,761/- (Rs.5,42,81,001/- minus ₹ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee shown to me is unreliable and misleading and can in no way influence my mind to deduce the profitability of the assessee in the justified way, though the other account heads are apparently reliable. In such a situation I am not inclined to reject all the account heads except Purchase Account which does not lead me to proper assessment of assessee's profits. I, therefore, reject assessee's Purchase Account and rely on the figures as calculated above to arrive at the closing stock so th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

0,88,41,059/- 2 Works Expenses M Rs.14,74,18,714/- 3 Administration Expenses N Rs.47,12,197/- 4 Financial Expenses O Rs.1,86,73,072/- Loss on Sale Assets 0 Total Rs.27,96,45,043/- 1 Profit Before Depreciation Rs.4,00,39,585/- (Rs.2,27,23,053/- +Rs.1,73,16,532/-) 2 Depreciation F Rs.1,12,46,852/- Profit Before Tax Rs.2,87,92,733/- (Rs.1,14,76,201/- +Rs.1,73,16,532/-) 1 Less -Provision For Income Tax Rs.29,39,925/- 2 Less-Provision For Fringe Benefit Tax Rs.29,140/- 3 Less-Provision For Deferred T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rgued the case at length and thereafter submitted the written submissions dated 02.02.2015 as to what has been argued by him and the said written submissions have been placed on record. In the written submissions submitted by the Ld. DR at pages 1 & 2, he has stated about the findings of the AO and thereafter has stated that the ld. CIT(A) has allowed the relief by making perverse appreciation of facts of the case, which were discussed in the said written submissions. 15. The parawise findin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ties feel that their interests are secured by collateral securities then why they should in the first place ask for hypothecation of the stock and enter into hypothecation agreements. Further, Drawing Power is determined on the basis of the stock and not on the basis of collateral securities and the limit sanctioned is subject to variation depending upon the availability of stock with the assessee. Therefore, this finding is patently perverse and needs not to be given any cognizance. Para 5(ii) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d. CIT(A) without giving some cogent reasons. His statement had substantial evidentiary value. Without prejudice to the above, it may be submitted that given the categorical statement of Sh.Tejinder Sharda that the party submits stock inventory statement at the end of month and thereafter officials of bank physically verify this stock in possession of the party and after physical verification of stock, the Drawing Power is allowed to the party. One officer physically checks the stock and incumbe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and authenticated the Drawing Power Register, he could do so himself by invoking his co-terminus powers with the AO or else remanded the case to the AO to record the statement of the bank manager who had authenticate the DP Register. But this choosing to ignore the statement of Senior authority of the bank who exercises administrative control over the officer who had physically inspected the stock, is really ill-merited and thus perverse. Para 59iii) The finding in this para constitute hasty co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

indings are patently perverse and deserve to be dislodged. His findings that the stock was scattered at different places and it was not possible to count/weigh the stock is of little significance given the fact that the Sr. Branch Manager has deposed that signature on the DP Register is an assertion of the fact that the stock has been physically verified. The ld. CIT(A)'s findings have got no footing whereas the AO's findings have the support of the authenticated DP Register and further .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lly authenticated the DP register in token of his having physically verified the stock, he ought to have invoked his co-terminus power to record his statement or else remanded the case back to the AO for this purpose. It is, therefore, prayed that the matter be restored to the file of the AO with the direction to record to the statement of the bank manager who had authenticated the DP Register in token of his having physically verified the stock and decide the issue on the basis of the facts as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e ground of difference in quantity and valuation, had clear relevance to the making of assessment as well and not only to initiation of proceedings u/s 148. Para (II) This is judgment of the Hon'ble High Court is not relevant to the cases as the AO had brought on record the authenticated DP register and also the statement of the Sr. Branch Manager who had exercised control over the manager who authenticated the DP register in token of his having physically verified the stock. Para (iii), (iv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

High Court with its approval. It is further submitted that the ld. CIT(A)'s order is perverse on multiple counts which are discussed herewith. (a) Firstly, the concerned bank manager has given a statement that the stock has been physically verified when OD facility is allowed to such assessee's in these circumstance, the statement of the manager who is incharge of the branch represents the true affairs and business practice of the concerned bank and therefore, it carries high evidentiary .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the ld. CIT(A) has merely applied the case law in favour of the assessee without appreciating the difference of facts in the present case. It is further submitted that the issue is wholly covered by a recent judgment of the Hon'ble P & H High Court in the case of Smt. Shakuntala Thukral vs. CIT reported in 366 ITR 644. The factual matrix of both the case is almost identical. In the case before the Hon'ble P & H High Court, the assessee had claimed that she had shown inflated the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sel for the assessee, Mr. P.N.Arora, Advocate, on the other hand, relied upon the submissions made before the AO and the order of the ld. CIT(A). The ld. counsel Mr, P.N. Arora, Advocate further argued that as to the written submissions and arguments made by the Ld. DR the department while filing the appeal before the Hon'bel Bench has stated in the statement of facts that an addition of ₹ 1,73,16,531/- was made on account of difference in the closing figures, as shown in the re-casted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itted by all the parties who availed cash credit limit on the basis of hypothecation of stock which was physically verified. Thus, it is a presumption of the DR that the statement recorded in one case is applicable to all the cases. 16.1. The Ld. counsel, Mr. P.N.Arora, Advocate, further argued that the findings of the Ld. CIT(A) in para 5(iii) on page 12 of the appellate order are that it is not possible for the bank staff to count/weigh the stock worth crores of rupees lying in open in differe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee has not been rebutted by the department at any stage. He further submitted that the ld. CIT(A) has never recorded a finding in A.Y. 2009-10 that the AO should have examined the bank officer who had actually verified the stock, the finding is limited to extent as recorded in para 5(ii) that AO has tried to prove in the present case that the stock was physically verified by bank manager by relying on the statement of bank manager in the case of Manish Kumar Bansal Contractor but in the opin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

-10 filed on 02.02.2015). As regards the Drawing Power Register on which heavy reliance has been placed by the Ld. DR, the copy of the same has been enclosed alongwith the paper book (filed on 2.2.2015 for AY 2009-10 in which the photocopy is on page 12 and typed copy is on page 15 & 16 for period from Jan, 2007 to 31.12.2009.). 16.3. He further stated that there are following deficiencies in the register and vital information relating to physical verification of the stock has not been recor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is also blank except starting from entries for the month of March, 2009 to Dec. 2009 but no name of the person who did the initials can be made out. Thus, applying the ratio of order of ITAT, Amritsar in the case of 'Jai Sharda Rice Mills, the Senior Bank Manager Sh. Tejinder Sharda guessed that his predecessor must have gone through the modus operandi of maintaining the records by the bank as he was not in the branch of the bank during the relevant period i.e. the alleged physical verifica .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he prescribed procedure for physical verification of stock was adhered to by the bank. Thus, the argument of the ld. DR that the statement of the manager who is incharge of the branch represents the true affairs and business practice of the concerned bank and therefore, it carries high evidentiary value and should have been accepted by the CIT(A) is a gospel truth and drawing power register as a sacrosanct document to the extent that the drawing power is calculated on the basis of entries of ent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

escapement of income was valid or not. The Hon'ble Court held that the reassessment proceedings initiated were valid. The CIT(A) has given a clear cut finding in para 3.1 on page 16 of the appellate order that the judgments relied upon by the AO are distinguishable on facts. 16.5. He further submitted that the judgments of Hon'ble Punjab & Haryana High Court, relied upon by the ld. CIT(A) in the cases of 'Santosh Box Factory, Sidhu Rice mills and in the case of Devi Dayal Rice Mi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion to the distinguishable facts of the case, as facts of the case have been discussed in detail by the ld. CIT(A) in the case of Smt. Shakuntla Thukral vs CIT (2014) 366 ITR 644 (P&H) vide order dated 24.02.2010, as under: i) The contention of the assessee in the case of Shakuntal Thukral is that the stock as on 31.03.2005 was inflated to make payment of import of machinery by giving higher stock has been rejected because according to the CIT(A) the payment of machinery was released in the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as not disputed that stock of the value which was submitted to the bank was actually in the business premises (opening line para 2.12.2 page 25). But in the case of the assessee it has always been the contention of the assessee that the stock was inflated and the assessee was never in possession of such stock. iii) The ld. CIT(A) has recorded a categorical finding that the stock was verified by the bank through physical inspection and by examination of relevant records. According to ld. CIT(A) t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

manager (para 5(ii), 5(iii) page 12 & 13 of the appellate order). iv) The AO concluded in this case that the assessee's books were not accurate (para 2.3.1 page 4). But in the case of the assessee, the AO has accepted the fact that the books of account were produced alongwith bills and vouchers and these were test checked (para 2 page 1 of the assessment order but no finding regarding any defect whatsoever). v) The valuation of closing stock was found defective by the AO (para 2.8 page 6 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gh Court in the said case has held that the addition could be made only if quantity of stock submitted to the bank was higher than the quantity as per books, which were pledged, counted or verified by the bank official and since the stock statement was not verified by any bank official, the stock statement given to the bank could not be relied upon. Further, the details comments of the assessee on the judgment of the Hon'ble Punjab & Haryana High Court in the case of Smt. Shakuntla Thukr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d given categorical findings in the assessment order that : i) as given in para 2.3.1 page 4 of Ld. CIT(A)'s order which is reproduced in the relevant column that the assessee's books were not quite accurate because of specific defect of non recording of sales to the books of account. ii) In para 2.8 page 6 of CIT(A)'s order that stock statement filed on 04.07.2007 has been replaced by other stock statement which establishes that no stock inventory was prepared at the close of the fi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed that there are reports of physical inspection carried out by the bank authorities in respect of assessee's stock at quarterly intervals is available and such findings has not been rebutted by the assessee before the Hon'ble ITAT or the Hon'ble High Court. But in the present case we have established that no physical inspection of the stock has been carried out, as stated by the bank manager. iii) In para 2.12.2 page 25 of ld. CIT(A)'s order, it has been stated that the assessee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e assessment order that the books of account were not accurate meaning thereby that the books of account were rejected. But in the present case there are no such finding by the AO and the books of account has not been rejected by the AO rather no defect has been pointed out in the books of account. 16.11. The ld. counsel further stated that the ld. CIT(A) in the case of Shakuntla Thukral has relied on the reports of physical inspection carried out by the bank authorities in respect of the stock .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

statement on 31.03.2005 was lying in the premises of the assessee. But in the present case of the assessee, it has all along stated before the AO and before the ld. CIT(A) that the stock was inflated to get the cash credit limit from bank and the onus is on the department to prove that the assessee owned the stock more than the stock as reflected in the balance sheet as on 31.03.2005. 16.13. The ld. counsel for the assessee further argued that the AO has not rejected the books of account and has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arsem Lal, in the rejoinder made the arguments and thereafter submitted the counter written submissions as to what has been argued in the rejoinder, which for the sake of convenience are reproduced hereunder: "BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL: AMRITAR BENCH: AMRITSAR A. M/S.ISHAR INFRASTUCTURE DEVELOPER (P)Ltd, Bathinda ITA No.198/ASR/2013 AY 2009-10 M/s.ISHAR INFRASTRUCTURE DEVELOPER (P) Ltd. Bathinda ITA NO.536/ASR/2013 A.Y. 2010-11 B. M/s.Euro Infrasture & Powers .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

so many times, it is difficult to keep a track of what documents have been filed and in which case. There may be some papers which the assessee has filed during the course of hearing or otherwise and which may have not been provided by the assessee to the undersigned. Therefore, I am giving below a detail of the various documents filed by the assessee on different dates: 1. List of compilation of judgements on 9.4.2014 in the case of C above. 2. List of compilation of judgements on 9.4.2014 in t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tten submission in the case of B above on 25.08.2014 12. Written submission in the case of E above on 25.08.2014 13. Written submission in the case of A above on 25.08.2014 14. List of compilation of judgements on 10.9.2014 in D above 15. List of compilation of judgements on 10.9.2014 in C above. 16. List of compilation of judgements on 9.9.2014 in E above. 17. Paper Book in the case of D above on 10.9.2014 18. Compilation of judgements in the case of A above on 10.9.2014 19. Compilation of judg .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pilation in B above far hearing on 30.12.2014 29. List of compilation for hearing on 30.12.2014 in A above. 30. Paper book on 2.2.2015 in the case of C, D& A above. 31. Counter written submissions in A&B above on 2 2 2015 32. Ccmpilation of judgements for hearing on 2.2 2015 in A & B above 33. Counter Comments on written submissions filed on 6 2 2015 in the case of A, C & D above 34. Paper Book in the case of A, C & D above on 16 02.2015 35. Written submissions for date of he .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

total disregard of the of section 18(5)of the Income tax Appellate Tribunal Rules, 1963 which envisage filing of paper book only once and not raining documents in the manner as has been delineated above. This puts the departmental representative to great hardship and disadvantage. Nonetheless, the counter-written submissions as directed by the Hon'ble Bench to be filed on 9.3.2015 are submitted hereunder:- Here each case is discussed separately hereunder: M/s.Ishar Infrastructure (P)Ltd. Ass .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee had submitted no inflated stock statement when it had sought higher credit on 31.10.2008 when it had been sanctioned higher limit of ₹ 4.5 crore against stock statement of ₹ 6,08,57,320/-as against limit of ₹ 4.2 crore the value of stock submitted was ₹ 7,29,15,600/- on 30.09.2008 and ₹ 9,05,18,375/- on 31.01.2009 when higher limit of just ₹ 4.5 cr had already been sanctioned to it on 31.10.2008. Now when the assesee submitted stock statement of ₹ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

crore with increase in stock of mere ₹ 5.6 lacs. It needs to be appreciated that the stock statements furnished by the assessee each month during the accounting period relevant to the assessment year 2009-10 and 2010-11, was much higher than the threshold limit after including 25% margin. Thus, it is proved that the stock reflected in the monthly stock statement was real and not inflated. It also needs to be appreciated that the stock was being inspected by the bank and signature of the b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by the bank. It is further pertinent to mention here that whereas in the assessment year 2009-10 the assessee calimed that it had furnished inflated stock statement for availing hifher credit facility but when it came to AY 2010-11 when no higher credit limit was availed, it did not claim that inflated stock statement was submitted on 20.03.2010 but claimed that loan was covered by collateral security of ₹ 16 corre. If the loan was sanctioned against collateral security, the assessee had .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

egister and the only logical conclusion of the this critical study is that the stock statements submitted by the assessee to the bank were real. The issue of physical verification is a separate issue which though also emphatically goes against the assessee in view of the examination and cross-examination of Shri Kamlesh Gupta. Shri Gupta has categorically affirmed in his reply question No.4 of the statement that:- Thus, it is clear that Sh. Kamlesh Gupta had emphatically confirmed the physical v .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e stock audit was done in respect of the stock statement submitted by the assessee to the bank as on 31.01.2010 which was declared at ₹ 10,75,10,500/- whereas the stock declared to the bank on 20.3.2010 was ₹ 10,82,22,030/-. Thus, It is clear that when the assessee was clearly caught on a wrong foot viz a viz stock audit taken by the auditorst on 4.2.2010 of the quantum ₹ 10,75,10,500/-, it chose to not to raise any question on the auditors' stock audit on 4.2.2010 and had .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was ₹ 10,82,22,030/- i.e. just more by a meagre sum of ₹ 7,11,530/- and that too when no increase in the credit limit had been sought by the assessee. All these facts clearly prove that the stock was physically checked by the bank manager on 15.3.2010 in respect of the stock statement submitted to the bank on 28.02.2010 and earlier also by the auditors' on 4.2.2010. It is further highly pertinent to mention here that in this year, it was never the case of the assessee that it ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d been sanctioned against collateral security and not against inflated stock. It needs to be appreciated that when in this year, the assessee had not contended that it had submitted inflated stock statement, there was relevance for his asking for cross-examination of the banking authorities. It is pertinent to mention here that when the assessee's claim for the AY 2010-11 was not that it had submitted inflated stock to secure higher limit, how could it ask for cross-examination of the bank m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the statement was unsigned. It has not disputed that the stock statement submitted on 31.3.2009 was not of the value of ₹ 12,59,06,092/-. It is highly pertinent to take note of the fact that perusal of Annexure-1 (DP Register) clearly shows that the bank manager had made inspection of the stock on 03.04.2009 i.e. just after three days of the submission of the statement as his dated signature are appearing on DP Register. The dated signature takes whole of the wind from the sails of t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hich is distinguishable decision as would be shown hereinafter but the statement of the Sr.Branch Manager touching the procedure adopted in the bank and also his statement that in all such cases where signatures are put by the Inspecting Manager, the said signature are in token of having inspected the stock. So such a statement cannot be trivialized as is being attempted by the assessee. Nonetheless, the only point which the assessee is contesting so studiously has been found to be false that it .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f Sh. Kamlesh Gupta, both Chief Manager of the same very bank branch wherefrom the limit had been got sanctioned, converge on facts as regards inspection of the stock by the bank manager and his signing the DP register in token of having physically verified the stock and further countersigned by the Chief Manager at that time. The whole case of the assessee, therefore, stands demolished. Fourth Issue: The issue of assessee's relying upon the decision of the Bench in the case of M/s.Munish Ku .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t was in appreciation of this fact that the Tribunal had deleted the addition. In the case of the assessee, the AO has already considered this issue and taken the difference in the stock as reconciled to the extent of ₹ 4,66,13,761/- and made addition of ₹ 1,73,16,531/-only. The assesee did not contest this issue before the first appellate authority that the AO had erred in not taking the whole of difference as reconciled. Thus, clearly there is admission on the part of the assessee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

epartment as per audited accounts. = Rs.6,19,75,800 Stock claimed by the assessee as having been consumed on 30.3.3009 and 31.3.2009 Rs.5,42,81,001 Rs.11,62,56,801/- This figure of ₹ 11,62,56,801/- is the figure which the assessee himself admits as against the actual stock statement furnished to the bank at ₹ 12,59,06,092/- and thus according to the assessee it had inflated the stock by only a sum of ₹ 86,49,191/- (12,59,06,092/- minus ₹ 11,62,56,801/- to avail higher cre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ock as on 30.03.2009 and 31.3.2009. The falsity in the assessee's contention is too obvious to be missed out. Nonetheless, in this regard, it may be mentioned that a perusal of the DP register clearly reveals that the branch manager had put his signature on the date of inspection i.e. 3.4.2009. A perusal further reveals that the branch manager had put his signatures on many other occasions also when he had inspected the stock. Thus, the DP register is completely reliable and the assessee can .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

wing actual stock in the statement to the bank. As regards, the assesee's contention that the bank has not proved that the bank manager had actually inspected the stock lying at different places in MP and other places, such an argument is emerging out of assessee's frustration. It is pertinent to mention here that the bank manager has put his signature in the column "inspected by" in the DP register, the assessee has not brought anything on record that it had asked the bank man .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

L account and balance sheet from the bank which is of no consequence as the same had been obtained during the assessment proceedings and which the assessee had submitted after getting its accounts audited. It may further be mentioned that the bank authorities after having inspected the stock physically had little interest as to what amount of stock the assessee discloses to the department. The bank authorities would have immediately launched prosecution proceedings against the assessee on its su .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ned under its control. This claim is of no consequence as the stock under hypothecation though remains in the possession of the assessee but the bank carries the right to inspect the same. If on an inspection, it is discovered by the bank that the stock is not in the possession of the assessee or stock is short then the bank can immediately withdraw the limit and serve a notice for the recovery of the amount already withdrawn from the CC limit account. All that the assessee seems to suggest by p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eated as unexplained. In this regard, it may be submitted that the AO had considered this fact and after taking into consideration the consumption of stock between 21.3.2010 to 31.3.2011, worked the difference unexplained at ₹ 3,29,71,480/-. The consumption of stock had been taken at ₹ 7,52,50,550/- . The assessee had been making a blanket claim that it had shown inflated stock for availing higher credit. It is pertinent to mention when stock statement of ₹ 10,82,22,030/- was s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

In the cross examination made by Shri Ashwani Juneja, ITP, counsel for the assesse, Shri Kamlesh Gupta had confirmed that stock was was physically checked by the bank officers and on being asked whether any record of movement of bank officer has been maintained by the bank, Shri Kamlesh Gupta had stated that "No records have been brought. If any record is available, the same will be made available to the department." Further when asked whether any record for physical verification of st .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

annot submit inflated stock statements which are monthly checked by the bank manager and annually by the external agencies. (Refer last question of cross examination in Euro Infrastructure which is enclosed as Appexure).. In view of these facts, the factum of physical inspection of the stock gets well established. M/s.Euro Infrastructure and Powers Limited. Assessment year 2010- 11 In this case also, the factual matrix is almost the same as in the above case. Here also, the assessee had contende .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s that when the assessee availed credit limit of ₹ 3 crore, it had submitted stock statement of the value of ₹ 6,29,18,775/- on 30.4.2010 and submitted stock statement of the value of ₹ 6,21,80,415/- when limit sanctioned was ₹ 5 crore which is of lesser value. This clearly shows that when statement of stock at ₹ 6,29,18,775/- was submitted there was no occasion for seeking raise in the credit limit yet still stock statement was submitted of higher value when credit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was contested in the case of M/s.Ishar Infrastructure Developer(P)Ltd.for the assessment year 2010-11 and the AO taken as reconciled the difference after considering the consumption of material in between 21.3.2010 to 31.3.2010. It may be mentioned here that the asesseee has claimed that cross examination of the bank manager was not allowed in this case. It is incorrect. The assessee had been allowed cross examination on 31.05.2013 which has entirely gone against it. Therefore, the assessee stil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of ₹ 159.82 crores which covered more than 25% margin required and as such higher credit limit of ₹ 1 crore could be sanctioned without submitting inflated stock statement as claimed. Further it is pertinent to mention here that the assessee had submitted stock statement of much higher value of ₹ 235.61 lac for September, 2009 against limit of the same ₹ 1 crore which was not at required. It represented the actual stock lying with the assessee and the asssessee cannot cla .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essment year 2009-10 Similar story is emanating in this case also. The AO has reproduced copies of stock statements submitted by the assessee to the bank in the body of his assessment order. The study of these statements can be made from the following tabulation: S.No. Date of submission of stock statement Value in Rs Limit sanctioned 1 30.08.2008 2,95,76,208 Rs.2 crore 2 31.05.2008 2,93,00,000 Rs.2.2 crore 3 30.06.2008 2,97,50,000 Rs.2.2 crore 4 31.07.2008 3,09,00,000 Rs.2.2 crore 5 31.10.2008 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

story of the assessee and deserves to be rejected forthwith. M/s.Bhalaria Constructions, Bathinda Assessment year 2009-10 Similar story is emanating in this case also. Here also, the assessee had submitted stock statement to the bank at ₹ 1,28,69,000/- and ₹ 1,23,50,00/- at different dates against limit of ₹ 1 crore. The statements clearly suggest that the margin limit of 25% is invariably retained and the assessee submits stock statement of value as lying in his actual posses .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

see on 31.3.2009 after six months, he must have checked the stock with reference to the present position of the stock as on 30.09.2009. Therefore, it is wrong to say that the bank authorities are concerned with the stock hypothecated to the bank. Of particular importance is the statement of Shri Kamlesh Gupta who had informed that if any client fails to submit stock statement within ten days of the following month, penal interest is charged in such cases. Thus, it becomes clear that the statemen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

any merit whatsoever and also being misleading. In all the above appeals, the issue at stake is the addition made on account of difference in the value of stock shown to the bank by the assesses in their stock statements issued to the bank and as declared to the income tax department in their returns of income. It is submitted that this issue stands resolved by the recent decision of the Hon'ble Punjab & Haryana high Court in the case of Smt. Shakuntla Thukral Vs CIT reported at 366 ITR .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rt deems to have taken into consideration the whole gamut of the issues involved and has rightly observed that no illegality or perversity in the findings recorded by the Tribunal has been pointed out and further that no substantial question of law arises in the appeal. In view of this categorical finding of the Hon'ble High Court, the counsel's asking the Hon'ble Bench to disregard this decision of the Hon'ble High Court is clearly preposterous. It may be submitted that the fact .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

counsel that inflated stock were submitted to procure higher credit limit is found to be false and misleading as is emerging from the discussion made hereinafter. It may be reiterated that the assesee's contention that the stock statements submitted to the bank were inflated and not true and the same had been submitted squarely with a view to availing higher credit limit, is not found to be true in as much as there was absolutely no necessity for furnishing inflated stock statement as the as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t limit had been sought. 2. That the Banking authonties had physically inspected the record and also put the dates of inspection which has been corroborated by the Chief Manager who is a superior officer and whose statement carries great evidentiary value. 3. That there was undertake Stock audit by the external agencies also i.e chartered accountant and this fact has brought on record by none other than the Chief Manager, PNB, Arya Samaj Branch, Bathinda which clearly affirm that the stock state .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tements as stock statements of higher value were submitted even when no increase in credit limit had been sought. 5. The learned CIT(A) has grossly erred in not appreciating the whole factual matrix of the cose which he ought to be done in his coterminous jurisdiction with AO and had he done so he would have found that there was no truth in the contention of the assessees that they had furnished inflated stock statements which lie stands fully exposed from the stock statements submitted invariab .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

amlesh Gupta. 6. None of the judgements relied upon by the assessee is applicable to the facts of the case in view of the latest judgements of the Hon'ble Punjab & Haryana High Court in the case of Smt.Shakuntla Thukral (supra). In view of above, it is prayed that the appeal of the department may kindly be allowed in the above appeals. If any clarification or submissions is still required, the DR may kindly be given an opportunity as the DR could not keep a track of the various documents .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e. The Ld. DR while started the arguments initially took up the matter in the case of M/s. Ishar Infrastructure Developer (P) Ltd. for the assessment year 2009-10 being a lead case and argued that all other matters are identical and therefore, the decision in the case of M/s. Ishar Infrastructure Developer (P) Ltd. for the assessment year 2009-10 is to be followed in other appeals identically. However, the ld. Counsel for the assessee while arguing the matter argued from all the appeals separate .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

red by the collateral security provided by the assessee. If it is so why hypothecation of the stock is made by the bank whereas the Drawing Power is determined on the basis of the stock and not on the basis of collateral securities. The ld. CIT(A) ignored the statement of Senior Branch Manager of the same very Branch and the ld. CIT(A) has not doubted the correctness of the statement of Senior Branch Manager, which cannot be trashed without giving any cogent reasons. However, the ld. DR relied u .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arda and the stock statement filed by the assessee for the A.Y. 2009-10 on 02.02.2015 available at PB 12 & 13 which are unsigned . The ld. Counsel for the assessee has pointed out certain deficiencies in the DP register on which the ld. DR has placed heavy reliance but has not been rebutted by the ld. DR in his counter arguments or counter written submissions. The said deficiencies even though reproduced hereinabove by the ld. Counsel for the assessee in his written submissions i.e. vital in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

months. The ld. Counsel further argued that column for full signature of incumbent incharge is also blank except starting from entries for the month of March 2009 to Dec., 2009 but no name of the person who did the initials can be made out. 21. As regards the statement of Senior Branch Manager, Sh. Tejinder Sharda, it was only a guess work that his predecessor must have gone through the modus operandi of maintaining the records by the bank as he was not in the branch of the bank during the rele .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

en done. In fact, the present incharge of the bank, who allegedly as mentioned by the AO as verified the stock physically was never cross-examined and nothing has been brought on record by the AO or even by the ld. DR, Mr. Tarsem Lal that the stock which in all the cases mentioned hereinabove, which is lying at different sites, not at one place in one city but at different cities in different States. Not even a single documentary evidence was placed on record to establish that any Bank Officer h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sical verification has been done by any of the Bank Authorities at any point of time during the impugned year in any of the case mentioned hereinabove. 22. Much reliance has been placed on the statement of Bank Manager, Sh. Tejinder Sharda in the case of Munish Kumar Bansal Contractor but the AO has failed to prove that any physical verification has been made of the stock. However, a statement recorded of the Branch Manager in the case of Sh. Munish Kumar Bansal contractor, who has been assessed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion of the stock has been done by the Bank Authorities by relying on DP Register which shows that the physical verification of the stock statement dated 31.03.2009 was made on 03.04.2009 (page 45). It was explained by the ld. counsel for the assessee that it was impossible for the Bank Authorties to physically verify the stock as per stock statement dated 31.03.2009, as the stock was lying at different sites in Madhya Pradesh. This argument of the Ld. DR cannot be accepted at all in view of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the stock as per stock statement with the sanctioned limit instead of stock as per balance sheet as on 31.03.2009. Hence, the counter comment is factually wrong. ii) The Ld. DR stated that during the AY 2010-11, the assessee has not claimed that he filed inflated stock statement. But on page 6 of the order of the AO, the AO has reproduced in para 2.4 in written submission of the assessee and it has been claimed by the assessee that the inflated stock statements were submitted to the department .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g statement of the Bank Manager regarding independent verification of the stock dated 4.2.2010. But the AO has never taken any cognizance of this independent stock audit report in the assessment order. Moreover, this independent verficiation relates to stock statement dated 31.01.2010 allegedly made on 4.2.2010 but not to the stock statement dated 20.03.2010 on the basis of which addition has been made. Hence, no reliance can be placed on the independent stock verification. v) On page 6 of the c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nce, this counter comment of the Ld. DR is also factually wrong. vi) The Ld. DR has again relied on the DP register for the AY 2009-10 and according to him the Branch Manager signed the D.P.register in token of having physically verified the stock and the same is further counter signed by the Chief Manager at that time. But the assessee in his counter comments has brought out the vital defects in the DP Register, which has been discussed (supra). Hence, this DP Register has no authentic value an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

/- pointed out by the ld. DR, this issue is covered by the finding that the assessee has filed inflated stock statement. viii) According to the ld. DR, the assessee has stated that the audited accounts filed with the bank are the same as with the Income tax Department and because of this fact, it was in the knowledge of the bank that the actual stock as on 13.03.2009 and 20.03.2010 was much less than the stock as per stock statement but no action was taken as per stock statement submitted to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e assessee in AY 2010-11. xi The same facts have been discussed in respect of other cases which are before us and the findings already recorded above shall apply accordingly to all other cases mentioned hereinabove, mutatis mutandis. 24. It is a fact on record that the credit facility has been extended by the Bank to the assessee against the hypothecation of stock and not against pledge of stock, in which the control and possession of the stock remained with the assessee. 25. The AO has not poin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the assessee has submitted the explanation that the statement has been submitted before the Bank Authorities only on estimated basis to avail of the bank loan and there is no other purpose. This contention of the assessee has not been rebutted at any point of time by the AO or by the ld. DR. It is a fact that the AO as not pointed out any defects in the books of account and in fact, the AO has not invoked the provisions of section 145(3) of the Act. As argued by the Ld. DR that cash credit limit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

39;ble Punjab & Haryana High Court, in the case of Devgan Rice & General Mills (supra) was with regard to the proceedings u/s 148 of the Act and whether the said proceedings u/s 148 of the Act could be initiated on the basis of information regarding inflating the value of the stock in the bank statement was received from the bank after completion of assessment u/s 143(3) of the Act.. The Hon'ble High Court has held that the reopening in such cases can be done. However, the decision o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y the party and on perusal of the same in para 2.11 to 2.18 and at page 4 of CIT(A)'s order, it was found that the books of the assessee were not accurate because of specific defect of non-recording of sales in the books of account .pointed out. In para 2.8 at page 6 of CIT(A)'s order in the case of Shakuntla Thukral, stock statement filed on 04.07.2007 has been replaced by other stock statement which establishes that no stock inventory was prepared at the close of the financial year, wh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

are reports of physical inspection carried out by the bank authorities in respect of assessee's stock at quarterly intervals is availale and such findings has not been rebutted before the ITAT or before the Hon'ble High Court. But in the present case in view of our findings hereinabove, nothing has been established that physical inspection of the stock has been carried out as per facts on record. Further, in para 2.12.2 (page 25), of CIT(A)'s order in the case of Smt. Shakuntla Thukr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tegorical finding has been given that the books of account are not accurate and meaning thereby that the books of account were rejected. But in the present appeal, there is no such finding by the AO and no books of account have been rejected and provisions of section 145(3) have not been invoked. In the case of Smt. Shakuntla Thukral (supra), the ld. CIT(A) has relied upon the physical inspection carried out by the bank authorities in respect of assessee's stock at quarterly intervals, as me .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee.. But in the present appeal, the assessee all along stated before the authorities below and before us that the stock was inflated to get the cash credit limit from bank and the onus is on the Revenue to prove that the assessee owned the stock more than the stock reflected in the balance sheet as on 31.03.2005, which has not been done in any of the case referred to hereinabove. 31. In view of the above discussion, the decision of Smt. Shakuntla Thukral (supra) as relied upon by the ld. DR is n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tock has actually been done and accordingly stock statements so submitted before the bank authorities and DP register cannot be relied upon. 33. In the case of CIT vs. Veerdip Roller (P) Ltd. (2010) 323 ITR 341 (Guj), the facts are that the AO made addition on account of difference in the value of closing stock furnished to the bank and the value of the stock found in the books of account furnished to the Income Tax Authorities - inflated stock was hypothetical and not pledged and the bank offic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

decisions have been made by various courts of law referred to hereinabove: i) CIT vs. Sidhu Rice & General Mills reported in 281 ITR 428 (P&H) ii) CIT vs. Santosh Box Factory (P) Ltd.., 44 IT Reps. 472 (P&H) iii) CIT vs. N. Swamy reportede in 241 ITR 363 (Madras) iv) ITO vs. Devi Dayal Rice Mills reported in 75 TTJ 24 (ITAT, Amritsar Bench. v) CIT vs. Sirohi Steel Rolling Mills, reported in 200 CTR 595 (All.) vi) Ashok Kumar vs. ITO, reported in 201 CTR 178 ( J & K) vii) CIT vs. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ly, we find no infirmity in the order of the ld. CIT(A) in the case of M/s. Ishar Infrastructure Developers (P Ltd. in ITA No.198(Asr)/2013 in the impugned year. 36. During the assessment year 2010-11, the AO rejected the purchase account only without rejecting complete books of account and this issue was decided by the ld. CIT(A) in favour of the assessee while deciding the ground No.2 on page 7 in the case of Ishar Infrastructure Developers (P) Ltd., but the department has not filed any ground .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pra, I find that although the AO relied on the statement of the bank manager in which he stated that physical verification of the stock was carried out, in support of his finding that the appellant possessed larger quantity of stock than the stock as per books of account, but the AO has not been able to prove that the stock lying at various sites at Madhya Pradesh as per stock statement dated 20.03.2010 were actually inspected/counted to substantiate the above said finding because the bank offic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as also not been able to rebut the contention of the A/R of the appellant that the stock was inflated in the stock statement to avail credit from the bank. Thus, the action of the AO of relying on the statement of the bank manager, the stock statement and the drawing power register for making addition of ₹ 3,06,15,504/-, on account of difference in stock, is not justified on facts." 37. There is no rebuttal from the DR on the above findings of the ld. CIT(A) in the assessment year 201 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

10. 39. In view of the above, all the grounds of the Revenue are dismissed and our decision hereinabove is identically applicable in all other appeals mentioned hereinabove i.e. in ITA No.536(Asr)/2013 for the AY 2010-11 in the case of Ishar Infrastructure Developers (P) Ltd., in ITA No. 199(Asr)/2013 in the case of Royaldeep Construction Co., in ITA No.200(Asr)/2013 in the case of M/s. Bhalaria Constructions, in ITA No.571(Asr)/2013 in the case of M/s. Euro Infrastructure & Power Ltd. and i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e remain no difference and as such the addition made is uncalled for. It was also claimed that the AO is not justified in making addition without pointed out any defects in the books of account maintained in the regular course of business, which are duly audited by the auditors' and as such the addition made without rejecting the books of account is uncalled for. 37. Since both these grounds have already been decided in the main appeals hereinabove and therefore, the said grounds taken in th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version