Case Law Details

Case Name : Mehta Construction Co. Vs ITO (ITAT Delhi)
Appeal Number : ITA No. 3967/Del/2010
Date of Judgement/Order : 16/10/2015
Related Assessment Year :
Courts : All ITAT (5373) ITAT Delhi (1223)

On perusal of the assessment order, it is clear that the Assessing Officer was driven to reject the book results, mainly on the ground that the profit returned on the contract receipt is very low and no stock register was maintained. It is also clear from the assessment order that the appellant had filed detailed explanation as to why there was fall in profit and produced all the books of account and vouchers for verification. The Assessing Officer simply rejected the explanation without giving any reason as to why the explanation was not accepted. Further the Assessing Officer had not pointed out any defect in the books of account maintained by the assessee. It is undisputed that the books of account were duly audited under the provisions of Section 44AB by a Chartered Accountant and the report was furnished in the prescribed form.

Before rejecting the books of account, the Assessing Officer is duty-bound to give a finding as to how the correct profits cannot be deduced from the method of accounting followed by the assesee and the books of account maintained by the assessee. In this regard, we place reliance on the decision of Hon’ble Andhra Pradesh High Court in the case of CIT Vs. Margadarsi Chit Funds (P.) Ltd., 155 ITR 442 (AP) wherein the Hon’ble High Court held as follows:

“…………The assessee has, therefore, been following a consistent system of accounting and regularly employing the same system of accounting for declaring its income from year to year. It is also not in dispute that this system of accounting was not found to be defective by the ITO in the past years. All that happened was that, the ITO gave a fresh look to the matter and felt that the more appropriate system of accounting would be to declare the dividend as and when received as income, and endeavoured to substitute that method of accounting for the method of accounting regularly followed by the assessee. It must be said at the outset that the choice to account for income on an acceptable basis, is that of the assessee and not of the department. This is, however, not an unlimited choice, because the ITO has always the liberty to examine the system of accounting regularly employed by the assessee, to determine whether the system of accounting is defective and whether, by following such system of accounting, correct profits can be deduced from the account books maintained by the assessee. If, on such scrutiny, the ITO comes to the conclusion that with reference to the method of accounting followed by the assessee, correct profits cannot be deduced, it is open to him to apply the provisions of section 145 and make the assessment in an appropriate manner. In the present case, there is no material to indicate why the ITO considers the system of accounting regularly followed by the assessee to be defective or the system of accounting followed to be such that correct profits cannot be deduced there from. The ITO’s power to substitute a system of accounting for the one followed by the assessee, flows from the provisions of section 145. It is, therefore, imperative that, before rejecting the system of accounting followed by the assessee, the ITO must refer to the inherent defect in the system and record a clear finding that the system of accounting followed by the assessee is such that correct profits cannot be deduced from the books of account maintained by the assessee…………….”

 In the present case, no finding was given by the Assessing Officer as to how the correct profit cannot be deduced from the books of account maintained by the assessee. The mere fact that there was lower rate of gross profit declared by the assessee as compared to the previous year would not by itself be sufficient to justify the addition. Nor does it lead to an inference that there was inflation of expenditure or suppression of receipts. The reliance for this proposition of law is placed on the decision of the Hon’ble Bombay High Court in the case of R.B. Bansilal Abirchand Spg. Wvg. Mills Vs. CIT (1970) 75 ITR 260 and on the decision of the Hon’ble Gauhati High Court in the case of Aluminium Industries(P.) Ltd. Vs. CIT, (1995) 80 Taxman 184. The another fact which driven the Assessing Officer to reject the books of account is non-maintenance of stock register. In our own opinion, non-maintenance of stock register is not fatal enough to reject book results. It is most appropriate in this connection to quote the observations of the Hon’ble Allahabad High Court decision in the case of Awadhesh Pratap Singh Abdul Rehman and Ors. Vs. CIT (1994) 210 ITR 406, is squarely applicable. In this case, the Hon’ble Court observed as under:

” 3. The various findings recorded by the tax authorities and that by the Tribunal have not been challenged in these proceedings. What is contended is that even if the sale or expenses may not be verifiable, yet the provisions of section 145(2) are not attracted. Except for stating the argument, the learned counsel did not elaborate the contention to bring the point home. As noticed earlier, the account books were rejected because admittedly no stock register was maintained nor the sales were found verifiable in absence of the cash memos. The vouchers of expenses were also not forthcoming and the income returned was ridiculously low as compared to the exorbitant turnover and the extent of the business carried on by the assessee. It is difficult to catalogue the various types of defects in the account books of an assessee which may render rejection of account books on the ground that the accounts are not complete or correct from which the correct profit cannot be deduced. Whether presence or absence of stock register is material or not, would depend upon the type of the business. It is true that absence of stock register or cash memos in a given situation may not per se lead to an inference that accounts are false or incomplete. However, where a stock register, cash memos, etc., coupled with other factors like vouchers in support of the expenses and purchases made are not forthcoming and the profits are low, it may give rise to a legitimate inference that all is not well with the books and the same cannot be relied upon to assess the income, profits or gains of an assessee. In such a situation the authorities would be justified to reject the account books under section 145(2) and to make the assessment in the manner contemplated in these provisions. The material on which the rejection of account books was sustained in the case on hand was relevant material. Taking all these aspects and the material into consideration, the Tribunal has found as a fact that the claim of the assessee for acceptance of the account books was not sustainable. On the findings of fact recorded by the Tribunal, in our opinion, its order does not give rise to any question of law to direct the Tribunal to make a reference to this Court. In our opinion, the findings of the Tribunal do not suffer from any legal infirmity which are based on appreciation of facts.”

The stock register may be important for manufacturing industries but when it comes to the case of contractor, it may not be important as the entire material purchased, might have been consumed and charged to profit and loss accountant and the closing stock working progress has been shown by the assessee. In the circumstances, in our opinion, the non-maintenance of stock register alone cannot enable the Assessing Officer to reject the books of account. A coordinate bench of ITAT, Ahmedabad, in the case of DCIT Vs. Paras Dyeing and Printing Mills Pvt. Ltd. , (2010) 4 ITR (Trib.) (Ahd.) after reviewing the entire case-laws, held that the low profit cannot be the reason for rejection of the book results. The Hon’ble Gujarat High Court in the case of CIT Vs. Vikram Plastic, 239 ITR 161 held that no specific discrepancies or defects in the books of account of the assessee has been pointed out, nor any material was brought to establish that the purchases and expenses had been inflated or the sales had been suppressed and in the absence of any such material or finding given, there was no justification in invoking the provisions of Section 145(2) of the Act. Thus, having regard to the ratio laid down in the cases cited supra, we are of the considered opinion that in the present case also the Assessing Officer was not justified in rejecting the book results without pointing any specific defects in the books of account. Therefore, this ground of appeal filed by the assessee is allowed.

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Category : Income Tax (28050)
Type : Judiciary (12267)
Tags : ITAT Judgments (5553) Section 145 (11)

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