2016 (11) TMI 1295 - AT - Income Tax

Revision u/s 263 - Advances for the flats - Held that - We find that the assessee has shown both the figures of advance for the flats and sundry creditors under the head booking advance of flats and sundry creditors . Therefore in our considered, it is not appropriate to draw the conclusion that only the ld. CIT(A) directed to verify the advances for the flats only and not sundry creditors. It is also important to note that the assessee has not been co-operative at the time of impugned proceedings u/s 263 and 144 of the Act. Considering the fact and circumstances of the case, we uphold the order of Ld. CIT(A) and this ground of assessee is dismissed. Disallowance of sundry creditors balance - Held that - The addition was made by the lower authorities in the absence of necessary documents for the verification of the sundry creditors. It is beyond doubt that it is the primary duty of the assessee to produce the necessary details for the justification of the sundry creditors. The necessary details include the address, PAN, confirmation, their income tax returns etc. However, we find that the assessee failed to produce the same in spite of several opportunities. In our considered view merely paying the amount through banking channel and submitting the bank statements in support of it, the assessee does not get discharged from his responsibility. However, at the same time we cannot ignore the fact that the assessee has shown its income from the business of civil construction which has been accepted and the assessee cannot generate the income without incurring the expenses on the material. Therefore, once the income has been accepted then its corresponding expenses should also be accepted by the lower authorities. As the material supplier are not responding in terms of the notice issued u/s 131 of the Act, the assessee should not be punished for the same. In view of above and in the interest of the justice & fair play, we are inclined to give one more opportunity to the assessee to justify the amount of creditors. Advance received against the sale of flat - Estimation of profit - Held that - We find that assessee in earlier year has declared profit @ 2.35% which was accepted by the Department. In our considered view, the estimated profit calculated@ 20% is on much higher side. After considering the facts in totality we restrict the estimated profit @ 5%. Hence, this ground of assessee s appeal is partly allowed.

Summary

Issues:
1. Confirmation of addition of ?78,45,882 representing balances of Sundry Creditors.
2. Disallowance of ?4,60,000 as profit element on advances against sale of flats.

Issue 1 - Confirmation of addition of ?78,45,882 representing balances of Sundry Creditors:
The appeal challenged the order of Commissioner of Income Tax (Appeals) confirming the addition of ?78,45,882 made by the Assessing Officer under section 263/144 of the Income Tax Act. The appellant argued that this addition was not directed by the Commissioner of Income Tax under section 263. The appellant contended that the CIT's direction was limited to examining the advance for flats, not sundry creditors. However, the CIT(A) upheld the addition, stating that the CIT had never excluded the issue of Sundry Creditors from the order. The ITAT Kolkata upheld the CIT(A)'s decision, noting the lack of cooperation from the appellant during the proceedings and the failure to provide necessary details. The ITAT concluded that the appellant failed to prove the genuineness of the sundry creditors, leading to the dismissal of the appeal.

Issue 2 - Disallowance of ?4,60,000 as profit element on advances against sale of flats:
The second issue involved the disallowance of ?4,60,000 as a profit element on advances against the sale of flats. The appellant contended that the estimation of profit at 20% was excessive compared to the 8% specified under section 44AD of the Act. The ITAT Kolkata considered the appellant's previous declared profit rate of 2.35% and restricted the estimated profit to 5%, partly allowing the appeal. The ITAT directed the Assessing Officer to adjust the profit calculation accordingly.

In conclusion, the ITAT Kolkata upheld the confirmation of the addition of ?78,45,882 representing balances of Sundry Creditors due to the appellant's failure to provide necessary details. However, the ITAT partially allowed the appeal regarding the disallowance of ?4,60,000 as profit element on advances against the sale of flats, adjusting the estimated profit rate to 5%. The judgment was pronounced on 07/09/2016.