2017 (7) TMI 1334 - AT - Income Tax

Addition u/s 68 - non-genuine creditors - HELD THAT - Similar issue came for consideration before this Tribunal in assessee's own case for assessment year 2012-13 2016 (9) TMI 711 - ITAT CHENNAI Tribunal observed that the books of accounts of assessee was not reliable and income of assessee to be estimated after considering the average rate of profit of A.Y 2010-11, 2011-12 2012-13 as declared by the assessee. Accordingly, in this assessment year under consideration also, we direct the AO to estimate the income of assessee by considering the average G.P rate of assessment years 2011-12, 2012-13 2013-14 as declared by the assessee and decided accordingly. This issue of Revenue raised in its ground partly allowed for statistical purposes. Addition made on account of unexplained investment in Chilling Plants - at the time of survey in statement recorded on 06/11/2013 Managing Partner of the assessee Firm, had stated that upto 31/3/13 investment in the newly under construction chilling plant units at Karur and Namakkal was around ₹ 3,60,00,000/-. - HELD THAT - AR has rightly pointed out by the ld.A.R that there is no evidence to suggest that this investment is based only on unsubstantiated statement made by its partner Shri S.P.Loganathan, Managing Partner of the assessee firm during the course of survey on 06.11.2013. As held by the Supreme Court in the case of S.Khader Khan sons 2013 (6) TMI 305 - SC ORDER , statement under section 133A are not conclusive piece of evidence by itself and it cannot be relied upon for the prupose of assessment . Being so, we do not find any infirmity in the order of the CIT(Appeals) for deleting the addition made by the AO. Hence, this issue raised by the Revenue is rejected. Disallowance of milk cans and crates - nature of expenses - assessee had claimed as revenue expense disallowed, but AO holding them to be capital expense - CIT(A) observed that no enduring benefit is conferred warranting to treat expenditure on milk cans as capital in nature - HELD THAT - The decision of the Ld.CIT(A) is based on the Order of Tribunal in the case of M/s.Tirumala Milk Products P Ltd. 2011 (2) TMI 1572 - ITAT VISAKHAPATNAM . Being the expenditure towards plastic cane and crate, which is not an enduring nature, 100% depreciation to be granted as revenue expenditure. Hence, this issue in Revenue s appeal is dismissed. Disallowance of firewood purchase expenses - noticed by the AO that assessee had incurred expense for purchase of firewood in cash as well as by cheque. The cash vouchers were self made - HELD THAT - As rightly pointed out by the ld.A.R that payments towards purchase of fire wood, which is being a forest products exception provides under Rule-6DD is applicable. Accordingly, deletion is justified.

Summary

Issues Involved:
1. Deletion of addition under Section 68 for non-genuine sundry creditors.
2. Deletion of addition for unexplained investment in Chilling Plants.
3. Treatment of expenses on crates and cans as capital expense.
4. Deletion of disallowance of firewood expense.

Issue-wise Detailed Analysis:

1. Deletion of Addition under Section 68 for Non-genuine Sundry Creditors:
The Revenue contested the deletion of ?5,06,56,197 under Section 68 of the Income-tax Act, 1961, by the CIT(A), arguing that the facts in the case of CIT Vs. S. Khader Khan Son were different. The CIT(A) had relied on the Tribunal's decision in the assessee's own case for the assessment year 2012-13 and the jurisdictional High Court's decision in CIT Vs. S. Khader Khan Son, affirmed by the Supreme Court. The Tribunal noted that the books of accounts were not reliable and directed the AO to estimate the income based on the average gross profit rate of the assessment years 2011-12, 2012-13, and 2013-14. Thus, the issue was partly allowed for statistical purposes.

2. Deletion of Addition for Unexplained Investment in Chilling Plants:
The Revenue challenged the deletion of ?1,17,66,347 for unexplained investment in Chilling Plants. The CIT(A) observed that the addition was based on an unsubstantiated statement made during a survey, lacking concrete evidence or a departmental valuation. The Tribunal upheld the CIT(A)'s decision, referencing the Supreme Court's ruling in S. Khader Khan Son that statements during surveys are not conclusive evidence. Hence, the Revenue's appeal on this issue was rejected.

3. Treatment of Expenses on Crates and Cans as Capital Expense:
The AO treated expenses on crates and cans as capital expenses, allowing depreciation at 50%, while the assessee claimed them as revenue expenses. The CIT(A) followed the Tribunal's decision in ACIT Vs. M/s. Tirumala Milk Products P Ltd., which held that such expenses do not confer an enduring benefit and should be treated as revenue expenses. The Tribunal agreed with the CIT(A), dismissing the Revenue's appeal on this issue.

4. Deletion of Disallowance of Firewood Expense:
The AO disallowed ?5,00,000 for firewood expenses due to insufficient documentation. The CIT(A) allowed the claim, noting that firewood is a forest product covered under Rule 6DD, which provides exceptions to Section 40A(3). The Tribunal upheld the CIT(A)'s decision, agreeing that the exception under Rule 6DD was applicable. Thus, the Revenue's appeal on this issue was dismissed.

Conclusion:
The Tribunal partly allowed the Revenue's appeal for statistical purposes regarding the estimation of income based on the average gross profit rate. The appeals on other issues were dismissed, upholding the CIT(A)'s decisions. The Cross Objections filed by the assessee, supporting the CIT(A)'s order, did not require further adjudication.