2011 (3) TMI 1736 - AT - Income Tax

Cross-objection of the assessee - invoking of the provisions of s. 148 - reopening of the assessment - HELD THAT - The Hon'ble apex Court in the case of Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. 2007 (5) TMI 197 - SUPREME COURT has held that intimation and assessment are different. The reassessment proceedings can be initiated on the basis of the reasons recorded for reopening of the assessment. The AO has received information from Investigation Wing which showed that the documents found during the course of search in the case of M/s Ashish International Group, showed substantial unaccounted sales to the retailers. The assessee was one of the parties to whom that group has made unaccounted sales. The AO therefore, had reason to believe that the assessee has made unaccounted purchases. Hence, from the reasons recorded by the AO, it is clear that he has sufficient material for holding that there is an escapement of income and therefore, the AO has rightly issued the notice u/s 148 of the Act. disallowance of telephone expenses - HELD THAT - The AO has disallowed 50 per cent of the telephone expenses. The disallowance made by the AO is excessive. After considering both the parties, we feel that it will be fair and reasonable to restrict the disallowance of telephone expenses to the extent of 1/6th. disallowance of 1/4th expenses of petrol/diesel expenses, car insurance, repairs and maintenance of vehicle and depreciation expenses - HELD THAT - After hearing both the parties, it will be fair and reasonable to restrict the disallowances to the extent of 1/6th of the expenses. In the result, the appeal of the Revenue as well as the cross-objection of the assessee both are partly allowed.

Issues Involved:
1. Deletion of trading addition by the CIT(A).
2. Deletion of addition on account of unaccounted underinvoiced purchases.
3. Deletion of disallowance for payments made in cash under Section 40A(3) of the IT Act.
4. Legality of invoking provisions of Section 148 of the IT Act for reassessment.
5. Disallowance of telephone expenses.
6. Disallowance of petrol/diesel expenses, car insurance, repairs and maintenance of vehicle, and depreciation expenses.

Issue-wise Detailed Analysis:

1. Deletion of Trading Addition:
The Revenue contended that the CIT(A) erred in deleting the trading addition of Rs. 3,19,554 made by the AO by applying a GP rate of 8.53% on estimated sales of Rs. 1,56,00,000. The AO justified the addition due to the assessee's failure to produce the stock register, day-to-day quantitative details, and evidence for valuation of closing stock, along with indulging in unaccounted purchases. However, the CIT(A) concluded that there were no unaccounted purchases from M/s Ashish International, thus invalidating the basis for the trading addition. The Tribunal upheld the CIT(A)'s deletion of the trading addition, noting that the AO's estimation of turnover and application of the GP rate was not substantiated by adequate evidence.

2. Deletion of Addition on Account of Unaccounted Underinvoiced Purchases:
The Revenue argued that the CIT(A) wrongly deleted the addition of Rs. 36,70,045 made by the AO based on unaccounted purchases from M/s Ashish International Group. The AO's addition was based on seized documents indicating unaccounted purchases. The CIT(A) found no evidence of unaccounted purchases and thus deleted the addition. The Tribunal supported the CIT(A)'s decision, emphasizing that the AO's reliance on third-party documents without cross-examination of the assessee was insufficient to justify the addition.

3. Deletion of Disallowance for Payments Made in Cash under Section 40A(3):
The AO disallowed Rs. 7,27,300 under Section 40A(3) for cash payments exceeding Rs. 20,000. The CIT(A) deleted this disallowance, and the Tribunal upheld this decision, citing that once the books of account are rejected and income is computed by applying the GP rate, no disallowance under Section 40A(3) can be made. This principle was supported by judicial precedents, including the Hon'ble Allahabad High Court's ruling in CIT v. Banwari Lal Banshidhar.

4. Legality of Invoking Provisions of Section 148 for Reassessment:
The assessee challenged the reopening of the assessment under Section 148. The Tribunal noted that the return was processed under Section 143(1), which is not an assessment. The AO had sufficient material from the Investigation Wing indicating unaccounted sales by M/s Ashish International Group, justifying the belief that income had escaped assessment. The Tribunal upheld the AO's action in issuing the notice under Section 148, dismissing the assessee's objection.

5. Disallowance of Telephone Expenses:
The AO disallowed 50% of the telephone expenses, which the assessee contested. The Tribunal found the disallowance excessive and deemed it fair and reasonable to restrict the disallowance to 1/6th of the expenses, amounting to Rs. 3,214.

6. Disallowance of Petrol/Diesel Expenses, Car Insurance, Repairs and Maintenance of Vehicle, and Depreciation Expenses:
The AO disallowed 1/4th of these expenses. The Tribunal, after considering both parties, reduced the disallowance to 1/6th of the expenses, totaling Rs. 3,975.

Conclusion:
The Tribunal partly allowed the appeal of the Revenue and the cross-objection of the assessee. The trading addition was modified, and the disallowances were adjusted as per the Tribunal's findings. The Tribunal upheld the legality of the reassessment proceedings under Section 148 and provided detailed reasoning for each issue, maintaining consistency with judicial precedents and principles of fair assessment.

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