2011 (4) TMI 512 - HC - Income Tax

Search and seizure - Revised return - Bogus purchase - fictitious entry - the nature of the original entry in the accounts which on the face of it was not in conformity with the law of accountancy. - Held that - even if we assume for the sake of argument that it was a case of deliberate and fictitious entry, it is the duty of the Income-tax authority to find out the real nature of the transaction behind the said entry and to pass appropriate order of assessment in accordance with law. Merely because an assessee has made a wrong or even fictitious entry in the accounts, such fact cannot be a ground for accepting such wrong or fictitious entry. Whether in the present case, the Tribunal was justified in refusing depreciation in respect of the building of the factory of the assessee at Silvasa - The aforesaid finding is based on consideration of all the materials on record and any reasonable individual having regard to Section 3 of the Evidence Act would accept such finding as reasonable - no evidence nor can we brand the same as a perverse finding of fact justifying interference in this appeal - Decided against the assessee

Issues Involved:
1. Deduction of Rs.8,22,42,335/- for imported raw materials not debited as expenditure.
2. Depreciation on Silvassa factory shed and treatment of its sale proceeds.
3. Deduction of Provident Fund contributions of Rs.3,55,156/-.
4. Alleged unexplained expenditure and its revenue neutrality.

Issue-Wise Detailed Analysis:

1. Deduction of Rs.8,22,42,335/- for Imported Raw Materials:
The Tribunal refused the deduction, asserting the mistake in accounts was deliberate and fictitious. The assessee argued it was a genuine mistake rectified in the subsequent year. The High Court found the assessee imported aluminum ingots worth Rs.8,22,42,335/- and sold them to J.J.H. Industries Ltd. The accounts were incorrectly handled, leading to an overstatement of income. The High Court emphasized the Income-tax authority's duty to assess the real nature of transactions and not merely rely on the alleged fictitious entry. The Tribunal's decision was found erroneous, and the matter was remanded to the Assessing Officer for reassessment based on the revised return.

2. Depreciation on Silvassa Factory Shed:
The Tribunal denied depreciation, concluding the factory was never put to use. The assessee contended the factory was ready for use, and trial production was conducted. The High Court noted the concurrent finding of authorities that the factory remained closed and lacked plant and machinery. The CIT (Appeals) provided detailed reasons, including the absence of evidence for trial production. The High Court upheld these findings, rejecting the assessee's claim for depreciation, as the findings were based on substantial evidence.

3. Deduction of Provident Fund Contributions:
The Tribunal denied the deduction, relying on a previous court judgment. The High Court referred to the Supreme Court's decision in Commissioner of Income-Tax Vs. Alom Extrusions Ltd., which held that the omission of the second proviso to Section 43B operated retrospectively from April 1, 1988. Consequently, the assessee was entitled to the deduction for Provident Fund contributions made after the due date. The Tribunal's decision was overturned, granting the assessee the benefit of the deduction.

4. Alleged Unexplained Expenditure:
The Tribunal remanded the issue of unexplained expenditure to the Assessing Officer, directing reconciliation after giving the assessee an opportunity to be heard. The High Court found no illegality in this remand. However, it noted the Tribunal failed to address whether the addition was revenue neutral, as accepted by the CIT (Appeals). The High Court directed the Assessing Officer to consider this aspect during reassessment, keeping the CIT (Appeals)'s finding open for consideration.

Conclusion:
The High Court allowed the appeal in part, remanding the first issue for reassessment, granting the Provident Fund deduction, and directing the Assessing Officer to consider the revenue neutrality of unexplained expenditure. The claim for depreciation on the Silvassa factory shed was rejected. No order as to costs was made.

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