9911796707
TMI Blog2020 (11) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... filed any appeal. 4. Ground Nos. 1 & 2 for the assessment year 2011-12, Ground Nos.1,2 & 3 for assessment year 2012-13 and Ground Nos.1 & 2 for the assessment year 2013-14 are common, except variance in addition. Hence, as agreed by both the parties, we adjudicate the appeal for assessment year 2012-13 as a lead case. Ground Nos.1, 2 & 3 for assessment year 2012-13 read as follows: "1. Undisclosed Receipts of Rs. 4,23,65,658/- from ECIL & BEL Ground No. 1 : On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in giving wrong finding of fact that the undisclosed turnover of Rs. 4,23,65,658/- [Rs. 2,94,39,408 from Electronics Corporation of India Limited (ECIL) + Rs. 1,29,26,250 from Bharat Electronics Limited (BEL)] is not taxable as it had not accrued to the assessee, ignoring the fact the assessee had duly raised bills for such amount including service tax after having executed the work and the Contractees i.e. ECIL and BEL had duly credited the above amounts to the assessee's account and had deducted TDS on such undisclosed turnover, which the assessee had also duly claimed in its return of income. Ground No. 2 : On the facts and in the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the work orders granted by M/s. Electronics Corporation of India Ltd. On analysis of the 'Terms of Payment', it was observed that there were different payment schedules for the three principal types of work involved i.e Bulk Data entry, Biometric entry and LRVR printing. The terms of payment for the different categories was stated to be as under-: i) Data Entry:- 50% of payment within two weeks of bill submission 30% alongwith bills of Biometric completion. 10% after completion of the activity in the respective centre. 10% after completion of the project and acceptance by end customer. ii) Biometric 80% of payment within two weeks of the bills submission Entry: 10% after completion of Biometric activity in the state. 10% after completion of the project and acceptance by the end customer. iii) LRVR printing: 90% of the payment within two weeks of submission of the bill 10% after completion of the project and acceptance by the end customer. 6. After analysing the bills raised by the assessee, the AO concluded that only that revenue had been disclosed which has been recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent assessment years when it was certified by the appointed supervisors of M/s. ECIL and BEL. By enhancing the income of the Assessee from Rs. 1,09,41,480/- to Rs. 5,88,41,230/-, the net profit of the assessee has been enhanced to 45%, which is excessive. Lastly, the assessee also clarified that the expenditure booked by him for the year under consideration was against the income received and no expenses had been booked against the much higher contract receipts as assessed by the AO. 8. The ld CIT(A) calculated the income of the assessee at Rs. 68,71,709 (16.22% of Rs. 4,23,65,658/-) and allowed relief of Rs. 3,54,93,949/- to the assessee, by observing as under: " The AO analysed the bills raised by the assessee and concluded that only that revenue had been disclosed which has been received by the assessee as per the payment schedule stipulated in the work orders. This implied that the assessee had been following a cash system of accounting as opposed to the mercantile system which had been mentioned in the auditor's report in the statutory from 3CD. The AO, further concluded that as per the accrual system of accounting, the assessee ought to have recognized the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has been enhanced to 45% which is excessive and devoid of all reasoning. Lastly, the assessee also clarified that the expenditure booked by him in AY.- 2012-13 was against the income received and no expenses had been booked against the much higher contract receipts as assessed by the AO. I have perused the facts of the case and have examined in detail the assessment order u/s. 143(3) for AY.-2012-13 dt. 30.3.2015 and also the detailed submissions tendered by the assessee. The central issue that needs to be addressed here is the point and the magnitude of accrual of income to the assessee. In other words, what needs to be identified is the precise moment when the assessee can be said to have earned the income from the services rendered by it to M/s. Electronics Corporation of India Ltd and M/s. Bharat Electronics Ltd., and also the quantum of income accruing to the assessee from this entity. Now, on perusal of the contract entered into between the assessee and M/s. ECIL, it is seen that revenue becomes due to the assessee only after the bills raised by it are certified by the supervisors appointed by M/s. Electronics Corporation of India Ltd. Till the bill is certified b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taxable income. So now there exists a situation, where even though a particular income has not accrued to the assessee, the payer has deducted TDS on it and the assessee has been left with no alternative but to claim credit of the same since the credit for TDS would not have been given to him in the succeeding or in any other year. Under these circumstances, it would be appropriate to levy an appropriate rate of net profit on the differential amount between the bill raised by the assessee and the amount claimed by it and compute the profit element embedded in these gross receipts. It is seen that in AY: 2012-13, the assessee has shown a net profit of 16.22% of gross receipts and, therefore, the same rate will be adopted to complete the profit accruing to the assessee from the additions made by the AO of Rs. 2,94,39,408/- [Differential undisclosed receipts from M/s. ECIL as per the assessment order u/s. 143(3] dt 30/03/2015) and Rs. 1,29,26,250/- (Differential undisclosed receipts from M/s. BEL as per the assessment order u/s. 143(3) dt. 30/03/2015). It is pertinent to mention here that since the assessee has not shown these receipts as income, he has also, accordingly, not claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIL and Rs. 3,01,61,250/- against total work value or claimed value of Rs. 4,75,25,512/- in case of BEL and same is done as per the Certification of work completed by ECIL and BEL authorized officers. He submitted that the AO, at page 2, has also noted these glaring facts He submitted that they certify according to the RFQ standard fixed by NPR. Hence, the revenue has been recognized on the basis of the payment schedule as per the "Terms of Payment" of the PO is not correct, as per PO the assessee can claim only after certification of NPR authorized officers and they certified only 80%, 50% or further 20%, 30%, 10% (Subsequent Claims) as per the work completed and certified. 12. Ld A.R. submitted that the assessee had booked all the expenditure against the income received in the year and not booked the entire expenses incurred against the contract receipt shown in 26AS statement and it is not disputed by the AO that the entire contract receipt shown in 26AS statement has not been received during the impugned assessment year. He submitted that 26AS statement are purely third-party information, which should not have been treated as genuine figure for making addition. He submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order at page 2, the claimed value is higher but bill value is lesser which actually accrued to the assessee and same amount has been disclosed and shown as actual amount which was included in the turnover. 15. Further, on perusal of the detailed turnover declared by the assessee and determined by the department for a consecutive period of five years, (filed in the assessee's paper book for A.Y. 2011-12 pages 38 to 41) which seems to be same with no difference, thereby, there cannot be any suppression of turnover. However, since the payer has deducted TDS on the total and the assessee has been left with no alternative to claim the credit of the same during the impugned year of assessment, as the credit of the TDS would not have been granted to him, regarding unclaimed part amount in the succeeding year or any other year. 16. Ld CIT DR strenuously contended that in the last part of top para at page 6 of the first appellate order, the ld CIT (A) recorded a completely wrong factual finding that "it is pertinent to mention here that since the assessee has not shown these receipts as income, he has also, accordingly, not claimed any expenses linked with them". On this arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the designated officers of M/s. ECIL and M/s. BEL, the assessee can have no claim on income and it cannot be said that income accrued to the assessee. It was also observed by ld CIT(A) after considering the relevant contract and documents that only the quantum of bill amount raised by the assessee which has been certified and approved by the supervisor of M/s. ECIL and M/s. BEL can be said to have accrued to the assessee. Ld CIT DR before us could not controvert the fact that only the supervisors certified the work done by the assessee can be said to have acquired the right to receive that amount. From the observations of the ld CIT(A) at page 5, we also note that ld CIT(A) after considering the stand of the AO and explanation of the assessee concluded that the authorised supervisors only certify 80%, 50% or further 20, 30, 10% of the bill amount raised by the assessee depending upon whether the work done pertains to data entry, biometric entry or LRVR card printing and the assessee can claim only what is certified, 100% of the bill value has to be mentioned on the fact of the bill as per the normal billing practice followed in this line of business. Obviously, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by ECIL and BEL, respectively and are not the amount of actual turnover which has accrued to the assessee for assessment year 2012-13. 20. In the totality of facts and circumstances of the case, since the assessee has satisfactorily established that the amount of work certified by the respective supervisors has been claimed and shown as turnover and the expenditure booked by the assessee for assessment year 2012-13 was against the income received and shown in the profit and loss account, no expenditure has been booked against impugned higher contract amount as assessed by the AO, therefore, we decline to accept the contention of ld CIT DR that the ld CIT(A) in the last sentence at top para 6 has considered and appreciated wrong fact that the assessee has not shown these receipts as income and not claimed expenses linked with them. Ld CIT(A) after observing that the assessee has claimed higher TDS in the compelling circumstances under the given totality of the facts and circumstances of the case, it would be appropriate to levy an appropriate rate of net profit on the differential amount between the bill raised by the assessee and the amount 19 | 37 claimed by it and compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding expenses has not been shown and claimed by the assessee, even though there was no such claim by the assessee during the course of assessment proceedings. The ld CIT DR also contended that the ld CIT(A) has also erred in directing the AO to estimate net profit @ 16.22% of undisclosed turnover and thereby directing the allowance of expenses to the extent of 83.87% of undisclosed receipts, some of which was not explained by the assessee. Ld CIT (A) has failed to direct inclusion of the same amount in the total income of the assessee u/s.69C of the Act being "undisclosed expenditure". 25. The ld CIT DR, pressing into service alternative ground No.6, submitted that the ld CIT(A) should have directed the AO to adopt gross profit rate before salary and interest to partners on the entire undisclosed turnover because full deducting of salary and interest to partners have already been claimed by the assessee in its profit and loss account (Annexure-2) while filing the return of income. 26. Replying to above, ld A.R. has strenuously contended that it is not a case of the AO that the assessee has incurred some expenditures out of books of account by using undisclosed income or capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong figure i.e. 16.22% as net profit and actually, the AO and ld CIT(A) has not taken up right percentage of net profit. Ld counsel, in all fairness, submitted that the assessee has no objection if net profit is estimated before salary and interest on capital to partners but the percentage taken up by ld CIT(A) and AO and in grounds of appeal No.4 to 6 is incorrect and cannot be applied for estimating net profit in the hands of the assessee. Therefore, estimation and calculation work may kindly be restored to the file of the AO for a fresh calculation keeping in view books of account and final financial statement of the assessee for relevant assessment year. 29. Placing rejoinder to above, ld CIT DR agreeing to the submissions of ld counsel of the assessee, candidly submitted that the department has no objection if the issue is restored to the file of the AO for estimation and calculation of net profit before salary and interest on capital to partners due to mismatch of percentage between grounds of revenue and calculation submitted by the assessee before this Bench. 30. First of all, we may point out that, at the cost of repetition, while adjudicating Ground Nos.1 to 3 in earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of expenditure to the assessee incurred against such undisclosed receipts/turnover. But at the same time, we have no hesitation to hold that when the AO and ld CIT(A) has not made a case of undisclosed expenditure and the dispute between the assessee and the department is only confined to that as to whether the mismatch between 26AS and turnover/receipts shown by the assessee may entitle the AO for making addition in the hands of the assessee as there was no dispute on this fact that the expenditure incurred were recorded in the books of account and dispute was only about the claiming of such expenditure. 32. After considering the stand of the AO and findings arrived at by the ld CIT(A), we have clearly observed above, in earlier part of this order, that the assessee has only claimed amount of TDS as per 26AS because if such amount has not been claimed in the present assessment year, then the assessee could not be allowed to claim the same in the succeeding or any other assessment year. In this situation, merely mismatch between the amount of TDS claimed by the assessee and amount of turnover shown by the assessee does not raise a question about the expenditure incurred by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h includes Rs. 1,56,245/-. As the assessee could not explain the nature of receipt of Rs. 1,56,245/-, the AO disallowed the same. 35. On appeal, it was explained before the ld CIT(A) that the amount of Rs. 1,56,245/- was an advance received from OCAC for preparation of Electoral Photo Identity Cards and after deducting the expenditure, balance amount was booked as income of the assessee, which fact has been found to be correct after examining the profit and loss account of the assessee by the ld CIT(A). Hence, ld CIT(A) deleted the same. 36. Before us, the ld CIT DR could not controvert the findings of the ld CIT(A). Hence, we confirm the findings of the ld CIT(A) on this issue and reject the ground No.7 of the revenue. Ground Nos.8 to 10 of Revenue for A.Y. 2012-13 37. In Ground Nos.8 to 10, the grievance of the revenue is that the ld CIT(A) erred in deleting the addition of Rs. 38,88,773/- made under the head "unexplained unsecured loan" by incorrectly holding that the alleged unsecured loan creditors namely, Sri Sandeep Ghosh, Shri Sanjay Kumar Sah and Shri Pulak Mazumdar are actually sundry creditors, but wrongly given the nomenclature of unsecured loan creditors. 38. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts/contracts on the basis of which, ld CIT(A) has deleted the addition was not furnished before the Assessing Officer. Ld CIT DR has vehemently pointed out that the ld CIT(A) has admitted the fresh evidences without confronting the same with the Assessing Officer. 42. It is relevant to quote here Rule 46A of the I.T.Rules, which is as under: - "46A (1) The appellant shall not be entitled to produce before the CIT(A), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the AO, except in the following circumstances, namely:- (a) Where the AO has refused to admit evidence which ought to have been admitted; or (b) Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the AO; or (c) Where the appellant was prevented by sufficient cause from producing before the AO any evidence which is relevant to any ground of appeal; or (d) Where the AO has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule (1) unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. In fact, he may be expected to call for such evidence, even where neither party has produced the same, where such evidence is necessary for rendering justice. 44. On carefully perusing the impugned order of the ld CIT(A), we do not find any substance that the ld CIT(A) has himself called the required documents for deciding the issue in favour of the assessee. But he has considered the relevant documents and reproduced the same in his order for giving relief to the assessee. Therefore, we hold that this omission is clear violation of Rule 46A of the Rules by the ld CIT(A). 45. Be that as it may, in view of foregoing observations, since the additional, as alleged by ld CIT DR, has been considered by the ld CIT(A) at appellate stage without confronting the same with the Assessing officer, we deem it fit and proper to remit the issue back to the file of the Assessing officer with the direction to the assessee to furnish the contracts/agreements alongwith confirmations with the three service providers and all other relevant documents before the Assessing officer. The AO is directed to consider the said contracts/agreements duly entered into by the assessee with the service pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered by the assessee for providing identity cards to Hindustan Unilever Ltd. He submitted that in the balance sheet as at 31.3.2013, there is no such item as "salary payable". ld DR submitted that ld CIT(A) has deleted the addition without granting opportunity to the AO in violation of Rules 46A of I.T.Rules. 51. Replying to above, ld A.R. supported the order of the ld CIT(A). 52. On careful consideration of the rival submissions, we find that the amount of Rs. 50,562/- received from M/s. Hindustan Unilever ltd., towards the services rendered by the assessee for providing photo identity cards, which represents the salary to the staff members of the assessee. This fact was fully represented and explained before the AO and again before the ld CIT(A) by the assessee with concrete documents in support of the claim. In our considered opinion, from the relevant part of the first appellate order, i.e. para 3 at pages 6-7, we are unable to agree with the contention of ld CIT DR that there was violation of Rule 46A of the Rules by the ld CIT(A) as no new evidence was produced during the first appellate proceedings before the ld CIT(A). At the same time, we have no hesitation to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
