2022 (9) TMI 51 - AT - Income Tax

NP estimation on unaccounted turnover - Assessment u/s 153A - grievance of the assessee is that the income/net profit embedded in unaccounted turnover must have been taxed and not the entire turnover - HELD THAT - As noted that the unaccounted turnover of the assessee works out to 33% of the total turnover both disclosed and undisclosed and hence the assessee has disclosed nearly 67% of the turnover in the books of accounts. The net profits declared for the various assessment years as per the above table was assessed and not disputed by the AO. Similarly, it is also admitted that the seized material contains unaccounted expenditure also. We find that the AO has merely relied on the sworn-in statement recorded by the Managing Director of the assessee-company admitting the total income for various assessment years but has failed to give deduction for the unaccounted expenditure by the assessee for earning unaccounted income.In the case of CIT vs. President Industries 1999 (4) TMI 8 - GUJARAT HIGH COURT has held that it cannot be the matter of an argument that the amount of sales by itself cannot represent the income of the assessee. It is the realization of excess over the cost incurred that only forms part of the profit included in the configuration of sale. We are of the opinion that the entire unaccounted turnover cannot be brought to tax or the turnover admitted at the time of search operations cannot be brought to tax and as such there can only be a reasonable estimation of net profit on the unaccounted turnover. Since the assessee has declared an average net profit of 8.18% for the AYs 2012-13 to 2018-19, we are of the considered view that the same net profit percentage shall be adopted on the unaccounted turnover of the assessee for the various assessment years. We are therefore inclined to set-aside the orders of the Revenue and the grounds raised by the assessee are allowed.

Summary

Issues Involved:
1. Delay in filing appeals.
2. Dismissal of appeals by CIT(A) due to non-attendance.
3. Additions made by AO based on undisclosed income and turnover.
4. Consideration of unaccounted expenditure.
5. Validity of assessment based on seized documents and statements.
6. Application of net profit percentage on unaccounted turnover.

Detailed Analysis:

1. Delay in Filing Appeals:
The Tribunal noted a delay of 31 days in filing the appeals. The assessee attributed this delay to the shifting of his office and change of address, which led to a delay in receiving the CIT(A)'s order. The Tribunal found the reasons sufficient and reasonable, thereby condoning the delay and proceeding to adjudicate the appeals on merits.

2. Dismissal of Appeals by CIT(A) Due to Non-Attendance:
The CIT(A) dismissed the appeals in limine as no one attended the first appellate proceedings. The Tribunal acknowledged this procedural aspect but focused on the substantive issues raised in the appeals.

3. Additions Made by AO Based on Undisclosed Income and Turnover:
The AO made additions totaling Rs. 27,45,12,189/- for various assessment years based on the statement of the Managing Director recorded under Section 132(4) of the Act. The AO taxed the income admitted during the search proceedings without considering the unaccounted expenditure.

4. Consideration of Unaccounted Expenditure:
The assessee argued that the AO failed to consider the unaccounted expenditure, which was available in the seized material. The Tribunal found merit in this argument, noting that the AO should have deducted unaccounted expenditure from the unaccounted income before making the additions.

5. Validity of Assessment Based on Seized Documents and Statements:
The Tribunal examined the validity of the assessment based on the seized documents and the statement recorded under Section 132(4). The Tribunal emphasized that the entire unaccounted turnover could not be taxed and only the net profit embedded in the unaccounted turnover should be considered for taxation.

6. Application of Net Profit Percentage on Unaccounted Turnover:
The Tribunal noted that the assessee consistently declared a net profit percentage ranging from 3% to 10% on the accounted turnover. The average net profit for the relevant assessment years was 8.18%. The Tribunal ruled that this net profit percentage should be applied to the unaccounted turnover, rather than taxing the entire unaccounted turnover.

Conclusion:
The Tribunal concluded that the AO erred in not considering the unaccounted expenditure and in taxing the entire unaccounted turnover. It was held that only the net profit percentage (8.18%) should be applied to the unaccounted turnover for the assessment years in question. Consequently, the Tribunal set aside the orders of the Revenue Authorities and allowed the appeals of the assessee.

Result:
All six appeals of the assessee were allowed, and the decision was pronounced in the open Court on August 30, 2022.