2015 (11) TMI 649 - HC - Income Tax

Addition made by reducing the sale - estimating the net profit @ 3% of the total sale - CIT(A) deleted the addition confirmed by ITAT - Held that - Case made out by Mr.Suresh Kumar on behalf of the Revenue is being urged before us for the first time. The Revenue was not able to point out from the record the submission that the expenditure incurred in respect of suppressed sale were already included as a part of the cost in preparing food items which have been declared. The contention now raised that the entire turnover of ₹ 1.5 crores has to be considered as income as it is, without attributing any expenses to the suppressed sale was not the contention urged by the Revenue before the Tribunal. We find that the entire issue which arises in the present appeal is a matter of factual finding. The view taken by the CIT (Appeals) and the Tribunal is a possible view. The Revenue has not been able to show that the impugned order of the Tribunal, is in any way perverse. - Decided against revenue.

Summary

Issues involved:
Challenge to order of Income Tax Appellate Tribunal regarding suppressed sales and net profit estimation in restaurant business for Assessment Year 2001-02.

Analysis:
1. The appeal was filed challenging the order of the Income Tax Appellate Tribunal (Tribunal) related to the Assessment Year 2001-02. The primary question raised was whether the Tribunal was correct in confirming the order of CIT(A) deleting the addition made by the Assessing Officer (AO) by reducing the sale to Rs. 1.5 Cr and estimating the net profit at 3% of the total sale, contrary to the total income assessed by the AO at Rs. 1,80,19,840.

2. The respondent, engaged in a restaurant business, declared its total income at Rs. 1.59 lakhs and sale of food and liquor at Rs. 2.91 lakhs for the Assessment Year 2001-02. The AO alleged suppression of sale of liquor/food items amounting to Rs. 1.78 crores based on his estimate of raw material required to prepare food items, without expert assistance.

3. The CIT(A) upheld the rejection under Section 145 of the Act due to unreliable books of accounts but reduced the suppressed sale to Rs. 1.50 crores. The net profit ratio was set at 3% instead of 1.64% declared by the assessee, resulting in profits of Rs. 4,50,000.

4. Both the Revenue and the assessee appealed to the Tribunal. The Tribunal, in its order, supported the findings of CIT(A) and highlighted that the AO's estimates lacked specific evidence and were based on assumptions, leading to overestimation of sales and income. The Tribunal referred to the case law "Overseas Chinese Cousine Vs. ACIT" to justify not taxing the entire turnover as income.

5. The Revenue argued before the High Court that expenses related to suppressed sales were already included in the regular return of income filed by the assessee. However, the High Court found this argument to be raised for the first time and not substantiated by evidence from the record. The High Court concluded that the issue was a matter of factual finding, and the Tribunal's decision was reasonable. The proposed question of law was deemed insubstantial, leading to the dismissal of the appeal.

6. The High Court dismissed the appeal, emphasizing that the Tribunal's order was not perverse, and the proposed question of law did not warrant consideration. No costs were awarded in the matter.