2018 (1) TMI 808 - HC - Income Tax

Disallowance of service tax expenditure on freight for transportation of goods - the assessee is not beneficiary of such transport payment in any manner - Held that - Contention raised by the appellant is required to be accepted inasmuch as the cement industry when transportation is made by the manufacturer and transporter has done service on behalf of appellant assessee. In that view of the matter, he has to realize all expenses of the transporters including tax paid by the transporter. In that view of the matter, issue No.1 is required to be answered in favour of assessee Rejection of entire books of account by invocation of the provisions of section 145(3) - Held that - In view of observations made by AO that there are serious discrepancies in the stock register, the view taken by the AO as well as CIT (A) is required to be accepted. However, it will be open for the appellant assessee to rely upon the decision of this Court in the case of books of accounts where this Court has taken a view of average GP or NP on the basis of last five years. - Decided against assessee.

Summary

Issues involved:

1. Disallowance of service tax expenditure on freight for transportation of goods.
2. Rejection of books of account under Section 145(3) of the Income Tax Act, 1961 due to minor mistakes in supplementary records.

Issue-wise Detailed Analysis:

1. Disallowance of Service Tax Expenditure on Freight for Transportation of Goods:

The appellant challenged the Tribunal's decision to uphold the disallowance of service tax expenditure amounting to ?1,68,000/- on freight for transportation of goods. The Tribunal observed that since the assessee was not the beneficiary of the transport payment, the respective service tax liability did not fall on the assessee. The Tribunal held that the service tax payment was not incurred wholly and exclusively for business purposes under Section 37 of the Income Tax Act, 1961, and thus, the disallowance was sustained. The appellant contended that the Tribunal erred in not allowing the payment made for service tax paid to the transporter. However, the High Court accepted the appellant's contention, noting that in the cement industry, the manufacturer must realize all transport expenses, including the tax paid by the transporter. Therefore, the issue was decided in favor of the assessee, reversing the Tribunal's decision.

2. Rejection of Books of Account Under Section 145(3) of the Income Tax Act, 1961:

The appellant also challenged the Tribunal's decision to uphold the rejection of the entire books of account by invoking Section 145(3) of the Income Tax Act, 1961, due to minor mistakes in supplementary records. The Assessing Officer (AO) noted discrepancies in the stock register, which led to the rejection of the books of account. The appellant explained that the discrepancies were due to clerical errors by untrained computer staff and provided detailed explanations and supporting documents, including stock registers, purchase bills, and excise returns.

The appellant cited several precedents to argue that minor defects should not lead to the rejection of books of account. Notably, in *Commissioner of Income Tax vs. Gotan Lime Khanij Udhyog*, it was held that the best judgment assessment should be based on available material and should not necessarily result in a different figure of income than what was disclosed by the assessee. Similarly, in *Uttam Chuna Pathar Udyog vs. Income Tax Officer*, the court held that minor clerical errors or lack of some vouchers do not render the accounts incorrect if profits are still deducible.

Despite these arguments, the High Court upheld the AO's and CIT(A)'s decision to reject the books of account due to serious discrepancies in the stock register. The court noted that the AO's observations were significant enough to justify the rejection. However, the court allowed the appellant to rely on precedents where average GP or NP based on the last five years was considered for assessment. Thus, the issue was decided in favor of the Department, affirming the rejection of the books of account.

Conclusion:

The appeal was partly allowed. The first issue regarding the disallowance of service tax expenditure was decided in favor of the assessee, while the second issue regarding the rejection of books of account was decided in favor of the Department.