2013 (11) TMI 59 - AT - Income Tax

Rate of gross profit to be adopted for unaccounted sales - During the search by the Central Excise Authorities shortage of stock was found and the same was confirmed by first appellate authority. The learned AO has considered the entire value of the unaccounted stock as sales of the assessee and the full value was considered as income Held that - Learned CIT(A) vide his order had directed to adopt the average GP rate of last three years on the said unaccounted sales as the income of the assessee. From the copy of the annual accounts placed on record it is seen that the assessee is having loss in the year under consideration and even in the immediately preceding assessment year i. e. no gross profits. It is settled law that the entire sales cannot be considered as income but only the profit embedded in it is to be considered as income. However, considering the peculiar circumstances of the case and the totality of the facts, lump sum addition made in the present case would meet the ends of justice - Addition be restricted to 10% of the unaccounted sales i.e. Rs.30,53,238/-- Decided partly in favor of Revenue.

Summary

Issues Involved:
1. Interpretation of unaccounted sales and addition to stock by Central Excise Department.
2. Rejection of books of accounts under section 145 of the Act.
3. Consideration of gross profit on unaccounted sales as income.
4. Determination of the appropriate addition to unaccounted sales.

Interpretation of Unaccounted Sales and Addition to Stock by Central Excise Department:
The case involved the Revenue appealing against the order of the CIT(A) regarding unaccounted sales and addition to stock. The AO noted a shortage of stock valued at Rs. 3,05,32,388 as detected by the Central Excise Department. The AO considered the books of accounts incomplete and unreliable, rejecting them under section 145 of the Act. The CIT(A) partially allowed the appeal, directing the adoption of the average GP rate of the last three years for unaccounted sales. The CIT(A) emphasized that only the profit embedded in unaccounted sales should be considered as income. The Tribunal observed that the entire unaccounted stock value was considered as income by the AO, but it directed a lump sum addition of 10% of unaccounted sales, amounting to Rs. 30,53,238. This decision was made considering the peculiar circumstances of the case.

Rejection of Books of Accounts under Section 145 of the Act:
The AO rejected the books of accounts of the assessee under section 145 of the Act due to the findings of the Central Excise Department regarding unaccounted sales. The auditor reported a lack of physical verification of inventory by the management, leading to doubts about the reliability of the accounts. The AO added the entire unaccounted sales amount to the income of the assessee. However, the CIT(A) partially allowed the appeal, emphasizing the need to consider only the profit earned on unaccounted sales as income. The Tribunal further restricted the addition to 10% of the unaccounted sales, taking into account the overall circumstances of the case.

Consideration of Gross Profit on Unaccounted Sales as Income:
The key issue revolved around whether the entire unaccounted sales amount should be considered as income or only the profit embedded in those sales. The CIT(A) directed the adoption of the average GP rate of the last three years for calculating the income from unaccounted sales. The Tribunal concurred that only the profit portion of unaccounted sales should be treated as income. In this case, due to the absence of gross profits in the relevant years, a lump sum addition of 10% of unaccounted sales was deemed appropriate to meet the ends of justice.

Determination of the Appropriate Addition to Unaccounted Sales:
The Tribunal, after considering the arguments from both sides, decided to restrict the addition to unaccounted sales to 10% of the total amount, i.e., Rs. 30,53,238. This decision aimed to strike a balance between recognizing the income from unaccounted sales while also accounting for the lack of gross profits in the relevant assessment years. The Tribunal partially allowed the appeal of the Revenue based on this determination.

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