1. The assessee is a PWD Contractor filed his return of income on 30.09.2009 admitting total income of Rs.17,40,960. The Assessing Officer in the course of scrutiny assessment noted that the assessee has declared net profit @ 5% on the gross receipt of Rs.3,58,15,566. However the bank account of the assessee has reflected the total receipt of Rs1.22 Crores therefore the Assessing Officer asked the assessee to explain the discrepancy in the total receipt as declared by the assessee in the return of income at Rs.3.58 Crores and receipts shown at bank account at Rs.1.22 Crores. The assessee explained that the two bank pass books of accounts and other vouchers were lost for which the assessee has already registered a FIR, copy of which was submitted before the Assessing Officer. Further the assessee pointed out that the two other accounts, one in Dena Bank and the other in State Bank of Mysore, Bhadravathi were not reported by the Auditor in the earlier audit report that is the reason for total receipt in one bank account was reflected at Rs.1.22 Crores. Thus the assessee filed a revised profit and loss account and explained that the total turnover of the assessee is matching with the total receipts as reflected in all the three bank accounts. The assessee has also agreed for estimation of income @ 12.5% on gross receipts. However it was requested not to initiate any penalty proceedings as he is agreeing to these additions under unavoidable circumstances. The Assessing Officer accordingly framed the assessment by making the addition on estimated income @ 12.5% on the total turnover including closing stock of Rs.2,45,500, which comes to Rs.3.60 Crores. The Assessing Officer has also stated in the assessment order that since the assesseehas furnished inaccurate particulars of income and agreed for certain disallowances therefore penalty proceedings under Section 271(1)(c) of the Income Tax Act, 1961 (in short ‘the Act’) is initiated separately. The assessee challenged the action of the Assessing Officer before the CIT (Appeals) and submitted that the assessee agreed to the addition on estimation of income at 12.5% with the condition that the Assessing Officer not to initiate the penalty proceedings under Section 271(1)(c) of the Act. Thus the assessee asserted before the CIT (Appeals) that the estimation of income should not be more than 8% as it is provided under Section 44AD of the Act. It was contended that the income @ 12.5% is highly excessive which is not possible in the business of the assessee. The CIT (Appeals) dismissed the appeal of the assessee on the ground that when the assessment was framed on the consent of the assessee then the assessee has no right to challenge the assessment order.
2. Before the Tribunal, the learned Authorised Representative of the assessee has submitted that the assessee agreed to the assessment of income on estimate basis subject to the condition that the Assessing Officer shall not initiate penalty proceedings under Section 271(1)(c) of the Act. He has further contended that the assessee never concealed income even though there were some mistakes in making the entries in accounts. The Assessing Officer while completing the assessment had not found any concealment of income by the assessee in the return of income filed. The assessee was under Bona Fide belief that the penalty proceedings initiated by the Assessing Officer will be dropped as the assessee had not concealed any income and also for the reason that the assessee had co-operated in the matter of completion of assessment and paid the taxes. However the Assessing Officer initiated the penalty and levied the penalty under Section 271(1)(c) of the Act. Therefore the consent given by the assessee for estimation of income @ 12.5% cannot be applied as an estoppel against the assessee to challenge the assessment order. In support of his contention, he has relied upon the decision of the Hon’ble jurisdictional High Court in the case of Bhandari Metals & Alloys (P) Ltd. Vs. State of Karnataka reported in 136 STC 292 and submitted that the Hon’ble High Court has held that if the assessee makes a mistake in submitting a return to assess the tax before the assessing authority he has not estoppled or precluded by any law from preferring an appeal and showing to the appellate authority that the sales are in fact not exigible to tax. In case such contention is taken, the appellate authority is under the duty to examine the matter and determine the question whether or not the sales are not exigible to tax. Thus the Hon’ble High Court has held that there is no question of invoking the doctrine of estoppels. Hence the learned Authorised Representative of the assessee has contended that the consent of the assessee for assessment of income on estimate basis was subject to the condition which was not accepted by the Assessing Officer then the said consent cannot be operated as Doctrine of estoppel for challenging the order before the appellate authority. He has further contended that Section 44A provides the estimation of income @ 8% in the cases where the turnover of the assessee is less than Rs.40 lakhs for the year under consideration however the said provision also provides a guidance for estimation of income in other cases where the turnover is more than the limit provided under the said section.
3. On the other hand, the learned Departmental Representative has submitted that once the assessee himself has agreed to the addition on estimate basis of income @ 12.5% of the gross receipts then the assessee cannot challenge the said addition made by the Assessing Officer before the appellate authority. He has further submitted that the provisions of Section 44AD are not applicable in the case of the assessee because the turnover of the assessee is more than Rs.2.60 Crores and the said provision is applicable only to the assessee whose turnover is not more than Rs.40 lakhs. He has relied upon the orders of the authorities below.
4. I have considered the rival submissions as well as the relevant material on record. There is no dispute that during the course of assessment proceedings, the Assessing Officer noted certain discrepancies in the gross receipts declared by the assessee in the return of income at Rs.3,58,15,566 as aginst the receipts reflected in the bank account of Rs.1.22 Crores. Thereafter the assessee filed the relevant record and explained that the discrepancy in the audit report was due to non-declaration of two other bank accounts of the assessee – one in Dena Bank, Shimoga and other in State Bank of Mysore, Bhadravati. It is pertinent to note that even after considering the receipts reported in all the three bank accounts of the assessee, the gross receipts as declared by the assessee in the original return of income was found to be correct. Therefore the only discrepancy was that two bank account receipts were not declared in audit report however, the receipts in those bank accounts were duly declared by the assessee the return of income. The Assessing Officer accepted the gross receipts declared by the assessee except the relevant vouchers and books of accounts were not produced by the assessee being lost and an FIR registered with the Police in this respect was produced by the assessee before the Assessing Officer. The Assessing Officer was not satisfied with the income declared by the assessee at 5% of the turnover and therefore in response the assessee filed a letter dt.7.12.2011 the relevant portion of which has been reproduced by the Assessing Officer at pages 2 & 3 as under :
5. It is clear that the assessee agreed for adhoc estimation of income @ 12.5% of gross receipts of Rs.3,58,15,566 subject to the request that penalty proceedings under Section 271(1)(c) of the Act should not be initiated. The Assessing Officer accepted the said request of the assessee and accordingly framed the assessment however in the assessment order itself the Assessing Officer has initiated the penalty proceedings in para 5 as under :
“5. Penalty Proceedings u/s. 271(1)(c) : Since the assessee has furnished inaccurate particulars for the A.Y. 2009-10 and agreed for certain disallowances out of purchases and expenses, penal proceedings u/s.271(1)(c) is initiated separately.”
There is no quarrel that the consent of the assessee regarding the estimation of income would not restrict the jurisdiction of the Assessing Officer to frame the assessment on the basis of best judgement. However if the Assessing Officer has accepted the consent of the assessee then such statement of the assessee has to be considered as a whole and not selective. It is manifest from the letter reproduced by the Assessing Officer that the assessee has agreed to the adhoc estimation of income subject to the condition that the Assessing Officer not to initiate any penalty proceedings. The Assessing Officer accepted only one part of the consent of the assessee being adhoc estimation of income but has not accepted the request for not initiating the penalty proceedings. There is no dispute that the Assessing Officer is not bound by the said request made by the assessee for not initiating the penalty proceedings and therefore it was well within the jurisdiction of the Assessing Officer to initiate the penalty proceedings. However the levy of penalty is always subject to the explanation and all other relevant factors and circumstances under which the addition was made by the Assessing Officer. Once the Assessing Officer is not bound by the consent of the assessee then on the similar analogy the assessee is also not bound by one part of the consent when the other part of the consent was not accepted by the Assessing Officer. Thus when the Assessing Officer has not accepted the consent of the assessee in toto then the said consent cannot be applied as a Doctrine of estoppels against the assessee and the assessee has a legal right to challenge the assessment order before the appellate authority. The CIT (Appeals) has not gone into the merits of the assessee’s case and dismissed the appeal of the assessee on the ground that the assessment was framed on the consented addition. The Hon’ble jurisdictional High Court in the case of Bandari Metal & Alloys Vs. State of Karnataka (supra) has held in paras 12 to 14 as under :
“ 12. The appellant does not dispute the fact that it had voluntarily filed a return offering the value of non-ferrous metal scrap brought by it into the local area to entry tax or that it had paid the entry tax on the said value or that the assessing authority had accepted the said return and passed the assessment orders. But the question is whether the said action on the part of the appellant bars the appellant from challenging the order of assessment in appeal when once it realises that the goods in question were exempt from tax.
13. The question is covered by the decision of a Division Bench of this Court in NARASOPALLI OIL MILLS v. STATE OF MYSORE, 32(1973) STC 599 – 1973 2) Mys U. 367 where an identical question was considered. The Division Bench held:
“The petitioner cannot ascribe any error in the order of the Commercial Tax Officer since his own return was accepted by the assessing authority and there was no dispute that the sales were not exigible to tax under the Central Sales Tax Act, If the assessee makes in a return and submits to be assessed to tax before the assessing authority, he is not estopped or precluded by any law from preferring an appeal and showing to the appellate authority that the sales are, in fact, not exigible to tax. If such a contention is taken, the appellate authority is under a duty to examine the matter and determine the question whether or not the sales are exigible to tax. There is no question of invoking the doctrine of estoppel. In our opinion, the Deputy Commissioner of Commercial Taxes as also the Tribunal have failed to exercise the jurisdiction vested in them.”
The second question therefore has to be answered in the affirmative in favour of the assessee.
14. The Revisional Authority was not therefore justified in holding that the order of Appellate Authority was erroneous. Consequently the question whether the order was prejudicial to revenue does not arise. The appeals are therefore allowed.
The common order dated 31-1-2001 of the revisional authority is set aside and the order of the appellate authority is restored. Parties to bear their respective costs.”
Therefore the right of the assessee to challenge the order of the assessment is a material legal right, which cannot be denied by applying the Doctrine of Estoppel.