2019 (4) TMI 674 - AT - Income Tax

Estimating the profit on alleged unrecorded sales - A.O. estimated G.P. @ 22.7% - HELD THAT - We had carefully gone through the order of the Hon ble Rajasthan High Court in the case of Anita Choudhary and found that in that case the assessee was engaged in the business of trading of marble and granite, whereas in the present case, the assessee was engaged in manufacturing of marble slabs and tiles. The profit rate of manufacturing is always high as compared to the traders, therefore, considering the totality of facts and circumstances of the case, we direct the A.O. to make addition by estimating profit @ 15% of the amount so deposited in the bank account with respect to unaccounted sales. Penalty u/s 271(1)(c) - HELD THAT - After considering the entire facts and circumstances while disposing the quantum appeal hereinabove we have directed the A.O. to estimate the profit @ 15% and upheld the addition only to that extent. It is clear that the addition to the income is based on estimate of profit rate when the A.O. passed order vis a vis when we dispose the quantum appeal. In such estimated addition, no penalty is to be levied in view of the decision of the Hon ble Jurisdictional High court in COMMISSIONER OF INCOME-TAX VERSUS KRISHI TYRE RETREADING AND RUBBER INDUSTRIES 2014 (2) TMI 21 - RAJASTHAN HIGH COURT . Considering the totality of facts and circumstances of the case we direct the A.O. to delete the penalty so imposed on the estimated addition so made.

Summary

Issues:
1. Appeal against addition made by A.O. on unaccounted sales.
2. Imposition of penalty under section 271(1)(c) of the Income Tax Act.

Issue 1: Appeal against addition made by A.O. on unaccounted sales:

The appeal was filed by the assessee against the order of the ld. CIT(A) for the A.Y. 2010-11 regarding the addition of ?31,94,223 made by the A.O. at a G.P. rate of 22.7% on unaccounted sales discovered during a survey at the premises of a third party. The AO found incriminating documents during the survey, indicating undisclosed sales. The AO concluded that the unaccounted sales of ?1,40,71,468 were received through the bank account of a third party and belonged to the assessee. The ld. CIT(A) upheld the AO's action, leading to the appeal before the ITAT.

The assessee argued that there was no evidence connecting them to the unaccounted sales and that the addition was based on assumptions. The assessee also contended that the profit margin for unrecorded sales should be lower than the declared rate for recorded sales. The ITAT analyzed the facts, noting the connection between the assessee and the unaccounted sales, leading to upholding the addition. However, considering the nature of the business and previous judgments, the ITAT directed the A.O. to make the addition by estimating profit at 15% instead of 22.7%.

Issue 2: Imposition of penalty under section 271(1)(c) of the Income Tax Act:

The penalty under section 271(1)(c) was imposed by the A.O. based on the estimated addition made at a G.P. rate of 22.7%. The ld. CIT(A) confirmed the penalty, leading to the appeal before the ITAT. The assessee alleged that the penalty was levied arbitrarily without a valid notice specifying the grounds and that there was a discrepancy between the grounds mentioned in the assessment order and the penalty order.

The ITAT considered the merit of the penalty and referred to relevant court decisions. It noted that the addition was based on an estimate of profit rate and directed the A.O. to estimate the profit at 15% instead of 22.7%. In light of this, the ITAT held that no penalty should be levied on the estimated addition. Therefore, the ITAT directed the A.O. to delete the penalty imposed on the estimated addition.

In conclusion, the ITAT allowed the appeal of the assessee in part regarding the addition made on unaccounted sales and completely allowed the appeal against the penalty imposed under section 271(1)(c) of the Income Tax Act.