2012 (5) TMI 816 - AT - Income Tax

Deduction of Unexplained Expenditure u/s 69C - Contention was that assessee was involved in business of receiving bogus purchase entries so as to inflate its profit for claiming deduction u/s 80HHC - HELD THAT - To enable invocation of the provisions of section 69C of the Act, the AO needs to be in possession of some material indicating that the assessee has incurred expenditure on purchases which have not been reflected in the books of account. Existence of such material with the AO, in fact, is the sine qua non for invoking section 69C of the Act. However, he ignored the source of the purchases, even though adequately explained by the assessee - Decision in favour of Assessee. Computation of GP Rate - The GP rate of 14 per cent has been applied by the AO only on the basis of assumptions - Very same AO had, pertinently, himself, accepted the gross profit of 50 per cent under similar cases - HELD THAT - The GP rate is the difference between the sale value and the purchase value. In the present case, if the AO harboured any doubt concerning the GP rate earned by the assessee, it was well within his rights to investigate not only the rate and the quantity of the sales, but also the rate and quantity of the purchases, and to examine and compare the same with the market rate. AO has not doubted the sale value declared by the assessee. Rather, he has accepted the same to be genuine. Even so, after having done so, he applied the GP rate of 14 per cent without any basis and computed the value of the alleged unaccounted purchase, without even first ascertaining the market value of such purchases and without discharging his onus to establish that the assessee had paid anything over and above what had been stated in its books of account. The GP rate of 14 per cent was applied ignoring that of 50 per cent applied by himself in the cases noted in the preceding para. He did not even venture to differentiate those cases from the present one. CIT(A), while deciding this issue in favour of the assessee, in our considered opinion, has correctly appreciated the full factual as well as legal matrix, as discussed above. We find no error in the findings of the learned CIT(A) in this regard and we hereby confirm the same.

Issues Involved:

1. Whether the Assessing Officer (AO) exceeded the scope of the Tribunal's remand directions.
2. Whether the AO was justified in making an addition under Section 69C of the Income Tax Act for unaccounted purchases.
3. Whether the AO was justified in applying a gross profit (GP) rate of 14% on the declared export sales.
4. Whether the AO was justified in making an addition for unaccounted cash paid as commission for obtaining bogus purchase bills.
5. Whether the AO was justified in making an addition on account of interest on fixed deposit receipts (FDR).

Issue-Wise Detailed Analysis:

1. Scope of Tribunal's Remand Directions:

The Tribunal had remanded the case to the AO specifically to re-examine the credit entries under Section 68 of the Income Tax Act and to afford the assessee an opportunity to explain these entries. The AO was directed to restrict his examination to the credit entries and not to introduce new sources of income. However, in the remand proceedings, the AO made an addition under Section 69C for unaccounted purchases, which was not within the scope of the Tribunal's directions. This action was found to be beyond the jurisdiction conferred by the Tribunal's remand order, as the AO was only supposed to re-examine the credit entries and not to set up a new case.

2. Addition under Section 69C for Unaccounted Purchases:

The AO made an addition of Rs. 3,69,58,004 under Section 69C, assuming that the assessee had made unaccounted purchases. The CIT(A) found that the AO did not provide any evidence to demonstrate that such purchases were made from unknown parties. The AO's assumption was based on a strong opinion rather than corroborative evidence. The CIT(A) noted that the assessee had provided purchase bills, sales-tax registration numbers, PAN details, confirmation letters, and bank statements of the suppliers, which sufficiently discharged the assessee's onus. The CIT(A) concluded that the AO's finding was based on conjectures and surmises and not sustainable in law.

3. Application of GP Rate of 14%:

The AO applied a GP rate of 14% on the declared export sales, which was considered too high. The CIT(A) found that the AO did not provide any comparable cases or justification for applying this rate. On the contrary, the assessee provided instances where a higher GP rate of around 50% had been accepted by the AO himself in similar cases. The CIT(A) held that the AO's application of a 14% GP rate was arbitrary and without basis, thereby deleting the addition made on this ground.

4. Addition for Unaccounted Cash Paid as Commission:

The AO made an addition of Rs. 3,85,752 under Section 69C, assuming that the assessee had paid unaccounted cash as commission for obtaining bogus purchase bills. The CIT(A) found no evidence to support this claim and deleted the addition, noting that the AO's finding was based on conjectures and not on any material evidence.

5. Addition on Account of Interest on FDR:

The AO made an addition of Rs. 16,816 on account of interest on FDR, which was not included in the assessee's income. The CIT(A) found that this ground did not arise from the impugned order and rejected it.

Conclusion:

The Tribunal held that the AO exceeded his jurisdiction by making additions under Section 69C, which were beyond the scope of the remand directions. The Tribunal upheld the CIT(A)'s decision to delete the additions made by the AO for unaccounted purchases and unaccounted cash paid as commission, as these were based on conjectures and not supported by evidence. The Tribunal also confirmed the CIT(A)'s rejection of the AO's arbitrary application of a 14% GP rate. The Tribunal dismissed the Department's appeal and partly allowed the assessee's cross-objections.

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