2013 (11) TMI 476 - AT - Income Tax

Addition of amount by A.O. on account of deficit in stock Survey under section 133A is conducted - Deficit stock i.e., physical balance ascertained being lower than book balance as per computer records - retraction of statemetn Held that - When the reconciliation statement was prepared and furnished by the assessee after the survey to explain the deficit in stock found during the course of survey and the same was supported by third party evidence, the same should be considered on merit after necessary verification. Deletion of the addition of Rs. 24,45,670/- made by the A.O. on account of excess stock found during the course of survey Held that - The basis given by the ld. CIT(A) for deleting the addition made by the A.O. on account of excess stock found during the course of survey is not sustainable - When certain items of stock were found to be in excess at the time of survey, the onus in this regard was on the assessee to explain the said difference and if he has failed to discharge this onus successfully and satisfactorily, the addition can be made on account of excess stock u/s 69-B of the Act It is fair and proper to set aside the impugned order of the ld. CIT(A) on this issue and restore the matter to the file of the A.O. for deciding the same afresh after taking into consideration the explanation offered by the assessee in respect of excess stock found during the course of survey Decided in favor of Revenue. Delayed payment of employees contribution to provident fund Held that - Reliance is placed upon the judgment in the case of Allied Motors (P.) Ltd. v. Commissioner of Income-tax 1997 (3) TMI 9 - SUPREME Court , wherein it was held that the amendment made in the proviso to section 43-B being clarificatory in nature is applicable with retrospective effect The decision in the above case was followed and held that it is hereby deleted the disallowance made by the A.O. and sustained by the ld. CIT(A) on account of payment of employees contribution towards provident fund made before the due date of filing the return of income for the year under consideration Decided against the Revenue.

Summary

Issues Involved:
1. Addition on account of deficit in stock found during the survey.
2. Addition on account of excess stock found during the survey.
3. Disallowance on account of delayed payment of employees' contribution to provident fund.

Issue-Wise Detailed Analysis:

1. Addition on Account of Deficit in Stock:
The primary issue in both the appeals was the addition of Rs. 6,30,17,390/- made by the AO due to a deficit in stock found during a survey, which the CIT(A) reduced to Rs. 1,08,59,120/-. The assessee, a company dealing in luxury goods, faced a survey under section 133A of the Income-tax Act, 1961, revealing discrepancies in stock at its Rajkot warehouse. The survey team found a deficit of Rs. 6,30,17,390/- and an excess of Rs. 25,45,670/- on an MRP basis. The Executive Director admitted to a discrepancy and declared an unrecorded income of Rs. 2 crores, which was not included in the return of income. The AO rejected the assessee's subsequent reconciliation efforts, considering them as afterthoughts, and maintained the addition. The CIT(A) partially accepted the reconciliation, reducing the addition to Rs. 1,08,59,120/-, but rejected parts of the reconciliation related to unserviceable consumables, items consumed at free service camps, and unexplained shortages. The Tribunal found that the CIT(A) did not provide sufficient reasons for accepting the reconciliation and directed the AO to verify the reconciliation and reassess the issue.

2. Addition on Account of Excess Stock:
The AO added Rs. 25,45,670/- as unexplained expenses under section 69-C of the Act due to excess stock found during the survey. The CIT(A) deleted this addition, accepting the assessee's argument that, as a sole distributor of Montblanc products, it could not have unaccounted purchases from the grey market. The Tribunal disagreed with the CIT(A)'s reasoning, stating that even if the addition was made under the wrong section, it could still be sustained under section 69-B. The Tribunal remitted the issue back to the AO for reconsideration, directing the AO to examine the explanation provided by the assessee regarding the excess stock.

3. Disallowance on Account of Delayed Payment of Employees' Contribution to Provident Fund:
The AO disallowed Rs. 4,33,347/- for delayed payment of employees' contribution to provident fund, which the CIT(A) reduced to Rs. 1,81,753/- as payments within the grace period were allowed. The Tribunal noted that the issue was covered by the Supreme Court decision in Allied Motors (P.) Ltd. v. CIT, which held that the amendment to section 43-B is retrospective. Accordingly, the Tribunal deleted the disallowance, allowing the assessee's appeal on this ground.

Conclusion:
The Tribunal allowed the appeals for statistical purposes, directing the AO to re-examine the reconciliation of stock discrepancies and the explanation for excess stock, while deleting the disallowance related to provident fund contributions based on the Supreme Court's ruling.