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TMI Blog2018 (1) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax read with Rule 2(1) (d) of the Service Tax Rules, 1994, provides for payment of service tax by consignor/consignee on reverse charge basis on the freight for transportation of goods through a goods transport agency. (ii) Whether in the facts and circumstances of the case and in law, the learned ITAT has rightly upheld the rejection of entire books of account by invocation of the provisions of section 145(3) of the Income Tax Act, 1961 and that too on minor mistake in supplementary records, whereas, Hon'ble Rajasthan Court in the case of Uttam Chuna Pathar Udyog vs. ITO reported at 192 ITR 56 (Raj.) has held that minor defects should not lead to rejection of books of account." 3. On the first issue, counsel for the appellant has taken us to the order of the Tribunal wherein it has been observed as under: "6.4 We have heard the rival contentions and perused the materials available on record. We find that the AO has rightly observed that since the assessee is not beneficiary of such transport payment in any manner, therefore, the assessee has no liability to bear the respective service tax liability. Accordingly, the service tax payment of Rs. 1.68 lacs was held as not inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer and accounts, the factory persons enter the value wrongly. When your goodself asked for factory record related to quantity. We submitted the computer generated quantitative details which also produced/submitted the wrong value figure. The wrong figure may be due to computer software average system or malfunctioning/virus in computer system. It is further submitted that coke dust, clinker and bags are excisable items. The excise paid on these purchases are input for payment of excise by the assessee. We are producing copies of the excise monthly return which is also audited/checked from time to time by excise department. The quantitative which the assessee had purchased/value has been entered and excise input has been claimed. Further we are enclosing photocopy of stock register maintained by assessee which also tally with the purchase bills. Purchase bill are being submitted and produced. Further we have already submitted the copy of the sales tax assessment order. This being the clerical mistake while feeding the computer entering by untrained computer staff who do not have any account background at all. The quantitative details of the statement of factory and Neemkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or "Income from other sources". The result would depend on the other principles of computing the income. Therefore, we hold that merely changing the basis or method of arriving at end result of working out the computation of taxable income under the Income Tax Act, necessarily does result in devising at profit or gains from business or other sources different from one returned by assessee, where he has returned his income and different from the result reached by assessee as per method of accounting employed by him, by adopting different basis by the assessing authority. (ii) Uttam Chuna Pathar Udyog vs Income-Tax Officer, 1998 65ITD 460 JP on 14 August, 1997 wherein it has been held as under: 11. This brings us to as to what would constitute correct accounts or correct profits as envisaged in Section 145(2). Section 145(2), no doubt, refers to correctness of the books. But simply, a few clerical errors, lack of some vouchers, non- maintenance of a particular record, does not perse render the accounts incorrect. In spite of these defects, the profits may be deducible. Thus, before involving the provisions of Section 145(2), it is the duty of the Assessing Officer to show how, bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnath vs. Assistant Commissioner of Income Tax(2007)207 CTR Raj 19 (26.10.2006 - RAJHC) : MANU/RH/0436/ Wherein it has been held as under: 10. In the face of these undisputed facts and circumstances, the Tribunal in our opinion could not have interfered with the order of CIT(A). In doing so, it had ignored all admitted facts noticed by us above, in the face of which there was no occasion for the AO to have resorted to estimate method. The GP is primarily result of excess of sales over purchases, opening stock, closing stock, the unsold stock at two terminals is only balancing factor. Admittedly out of this four components of trading result, there could not have been any ground for the Revenue to arrive at different result. So far as closing stock is concerned, inventories of existing stock were not found to be incorrect by the AO i.e. that position of stock as shown in the account books was not incorrect. There being no dispute about the sales and purchases, non-maintenance of stock register lost its significance so far as arriving at GP is concerned. Therefore, the CIT(A) was right in his reasoning about admitted state of affairs. Resorting to estimate of GP rate was founded on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by adding to the income returned by him various sums ranging from Rs. 17,951 for the assessment year 1956-57, to Rs. 21,536 for the assessment year 1954-55. The five assessment years with which we are concerned in this case are 1953-54, 1954-55, 1955-56, 1956-57 and 1957-58. The Income-tax Officer in his order did not give any reason for not relying on the accounts submitted. On appeal, the Appellate Assistant Commissioner after going through the notes prepared by the Income-tax Officer found that in his investigation, the Income-tax Officer had found that one of the items of interest received by the assessee during the accounting year relating to the assessment year 1953-54 had not been brought to account and another entry relating to the receipt of income during that year was not correct. Neither the Appellate Assistant Commissioner nor the Income-tax Officer found any mistake in the accounts relating to other accounting years. The two mistakes noticed by the Appellate Assistant Commissioner are insignificant mistakes. Further they afforded no basis for rejecting the accounts for the other years. Both the Income-tax Officer as well as the Appellate Assistant Commissioner arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. The market competitive, there is recession in other countries, which affects the assessee, demand and supply and also price. The ld Assessing Officer applied 33% GP without pointed out any specific defects in the books of account or bringing out any material on record. He further relied on the decision of Hon'ble Rajasthan High Court in the case of Gotan Lime Khanij Udhyog (supra) wherein it has been held that rejection of books of account U/s 145(3) does not always lead to an addition in every such circumstances, even if there is fall in GP ratio asACIT Vs. M/s Handmand Paper & Board such. Considering these case laws, the ld CIT(A) restricted the addition, therefore, he prayed to uphold the order of the ld CIT(A). 5. We have heard the rival contentions of both the parties and perused the material available on the record. Whatever defects pointed out by the Assessing Officer is not justified, the rejection of books of account U/s 145(3) of the Act. The assessee's manufacturing processes are so complexed that at every stage, the size, length and width of products changed and also the number of process in the manufacturing of handmade papers but the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or things; and where the manufacturing process is carried on without the aid of power, it employs twenty or more workers, the requirements of the provision are fulfilled. When the provision is clear and unambiguous, there is no need to read anything more into the same, as is sought to be done by the Revenue. This Court in the case of CIT v. V.B. Narania & Co. MANU/GJ/0339/2001 : 171 CTR (Guj) 416 : 252 ITR 884 (Guj), where in the facts of the said case, the ITO has disallowed the claim for deduction under Ss. 80HH and 80J of the Act, on the ground that the assessee got certain processes done from outsiders on the piecemeal basis and that the assessee had not provided regular employment to any person in its manufacturing process, held that the Tribunal was right in coming to the conclusion that the persons doing the work were employed by the assessee because the assessee was controlling not only the work to be done by those persons but also the manner of doing of the work. The Court further held that the Assessing Officer and the AAC were not right in holding that the concerned persons were not employees because they were being paid on piecerate basis or job work basis. In the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider assessment of subsequent year independently.
The appeal stands allowed.
4. We have heard learned counsel for the parties.
5. On first issue, 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 and against the Department.
6. However, on issue No.2, 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.
7. Thus, the issue No.2 is answered in favour of Department and against the assessee.
The appeal stands partly allowed to the extent as indicated above. X X X X Extracts X X X X X X X X Extracts X X X X
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