Section 145 of the Income-tax Act, 1961 - Method of accounting - Estimation of profit [Lower G.P. rate] - Assessment year 2002-03 - Assessee-Government undertaking was engaged in purchase and supply of essential commodities on rate cheaper than market rate, showed continuous decline in G.P. rate for last few years on ground that fuel and mandi charges were escalating - This contention was not verified - Though in
provisional audit report, no defect had been pointed out, Assessing Officer made addition taking G.P. rate of previous year - Whether estimation of G.P. rate was a question of fact; neither could lower GP rate be ground for rejection of books nor any addition could be made merely on basis of it - Held, yes [Para 7] [In favour of assessee] HIGH COURT OF ALLAHABAD
Commissioner of Income-tax-I
v.
Rajiv Sharma AND DR. SATISH CHANDRA, JJ.
CASES REFERRED TO
Pandit Bros. v. CIT [1954] 26 ITR 159 (Punj. & Har.) (para 5), Hargopal Singh v. CIT [2005] 273 ITR 507/[2004] 141 Taxman 207 (Punj. & Har.) (para 7), Kansara Bearings (P.) Ltd. v. Asstt. CIT [2004] 270 ITR 235/[2003] 132 Taxman 63 (Raj.) (para 7), International Forest Co. v. CIT [1975] 101 ITR 721 (J&K) (para 7) and Motiram v. CIT [1984] 149 ITR 786 (MP) (para 7).
D.D. Chopra for the Appellant. S.C. Dixit for the Respondent.
ORDER
Dr. Satish Chadra, J. - Present Appeal is filed by the department under Section 260A of the Income-tax Act, 1961, against the judgment and order dated 07.09.2007 passed by the Income Tax Appellate Tribunal, Lucknow in I.T.A. No.591/Luck/2006 for the assessment year 2002-03.
2. On 19.02.2008, a co-ordinate Bench of this Court has admitted the instant appeal on the following substantial questions of law:
"i. | Whether on the facts and in the circumstances of the case Income-tax Appellate Tribunal was justified in deleting the additions made by the Assessing Officer on the unaudited provisional profit and loss account and the balance sheet, by taking instance of the gross profit rate of the earlier year prompted by the unverifiable substantial increase in certain expenses, especially when such finding of the Assessing Officer has not been controverted by the Income Tax Appellate Tribunal ? | |
ii. | Whether on the facts and in the circumstances of the case where audited profit and loss account and the balance sheet in compliance to the section 44AB of the Income-tax Act, 1961 has not been filed, no addition on account of low gross profit rate can be made especially when the assessee has no details to establish the veracity of abnormal increase in certain expenses ?" |
3. The brief facts of the case are that the assessee is a Government undertaking and is engaged in the purchase and supply of essential commodities to the peoples on rates cheaper than the market rate through its units located in various parts of the State. For the assessment year under consideration, the A.O. found that the G. P. Rate shown by the assessee is 0.96% as against 1.16% of the earlier assessment years. So, the A.O. has made the additions of Rs.2,56,64,318/-. The First Appellate Authority has given a partial relief to the assessee. However, the Tribunal has deleted the said addition. Being aggrieved, the department has filed the present appeal.
4. With this background, Sri D. D. Chopra, learned counsel for the department has justified the order passed by the A.O. He, at the strength of the written statement, submits that in the earlier financial years i.e. 1998-99; 1999-2000; 2000-01; 2001-02, the G. P. rates were 1.13%; 1.30%; 1.16% and 0.96% and, as such, in every year, the G.P. Rate is declining. He also submits that the audit report under section 44AB has not been filed and the G.P. Rate shown by the assessee was on lower side. He further submits that the profit and loss account and balance-sheet were provisional and the assessee was unable to provide various documents to prove his submission. Lastly, he justified the impugned order.
5. On the other hand, Sri S.C. Dixit, learned counsel for the assessee has justified the order passed by the Tribunal. He submits that the provisional audit reports were furnished and the accounts were also audited under the Companies Act and the copies were submitted. He also submits that the assessee is a Government undertaking. The auditors will have to be appointed by the Government. So, the provisional audit report was submitted and no defect was found. To support his argument, he relied on the ratio laid down in the case of Pandit Bros. v. CIT [1954] 26 ITR 159 (Punj. & Har.).
6. After hearing both the parties and on perusal of record, it appears that the books of account were not rejected in the instant case. However, the A.O. has taken the G.P. Rate of the previous years. The G. P. Rate was declining every year due to escalation in the fuel charges i.e. Petrol, Diesel etc. and also Mandi Fee.
7. Needless to mention that estimation of the G.P. Rate is a question of fact and no substantial question of law arose as per the ratio laid down in the cases of Hargopal Singh v. CIT [2005] 273 ITR 507/[2004] 141 Taxman 207 (Punj. & Har.); and Kansara Bearing (P.) Ltd. v. Asstt. CIT [2004] 270 ITR 235/[2003] 132 Taxman 63, (Raj.).The lower G.P. Rate never attracts the addition and it cannot be a ground for rejection of the books as per the ratio laid down in the cases of International Forest Co. v. CIT [1975] 101 ITR 721 (J & K) as well as Moti Ram v. CIT [1984] 149 ITR 786 (M.P.)
8. Moreover, in the instant case, provisional audit reports were filed and the A.O. has not pointed out any defect. Reasons for lower G.P. Rate were given but the same were not examined by the A.O. When it is so, then we find no reason to interfere with the impugned order passed by the Tribunal. The same is hereby sustained along with the reasons mentioned therein.
9. The answer to the substantial question of law is in favour of the assessee and against the department.
In the result, the appeal filed by the department is dismissed.
Refer:[2013] 39 taxmann.com 106 (Allahabad )
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