High Court Of Karnataka
C.K.K Catering Services vs. ACIT, Central Circle, Mangalore
Block Period : 1-4-1989 To 7-2-2000
Section : 158BC, 158BB
D.V. Shylendra Kumar And K. Govindarajulu, JJ.
IT Appeal No. 353 Of 2006
March 28, 2012
JUDGMENT
D.V. Shylendra Kumar, J. – The appeal by the assessee a Pantry Car Services firm engaged in the business of providing catering services in Indian Railways. Appeal is directed against the order of the Income-tax Appellate Tribunal allowing the appeal of the revenue in. part which was in turn directed against the order passed by the Commissioner of Income-tax (Appeals) who partly allowed the appeal of the assessee and set aside the earlier judgment by the Assessing Officer as per order dated: 27.02.2002 determining the undisclosed income of the assessee for the block period 01,04,1989 to 07.02.2000 pursuant to a search conducted at the business premises of the assessee on 07.02.2000.
2. The Assessing Officer after issue of notice and calling upon the assessee to file a return for the undisclosed income for the block period in terms of his order dated: 27,02.2002 had determined such undisclosed income for the different assessment years comprised in the block period on the premise that the books of account which were examined by the Searching Officer at the premises of the assessee during the search, revealed that full particulars of turnover of the assessee in the catering business carried on by it, had not been reflected in the books of account and even before the searching officer, managing partner of the firm had admitted that the firm was not in the practice of entering its entire sale transactions in the books of account, that the entries in the books of account reflected only about 75% of the actual sales/receipts etc.
3. The Assessing Officer had computed the assessment on the following premise.
| Asstt. Year | Accounted Sales as per P & L A/C | Estimated Sales (Accounted Sales X 100/60) | Unaccounted Sales | % G.P. on Accounted Sales | Undisclosed Income |
| 1 | 2 | 3 | 4 | 5 | 6 |
| 1995-1996 | 50,000 | ||||
| 1996-1997 | 7,929,387 | 13,215,645 | 5,286,258 | 30% | 1,585,877 |
| 1997-1998 | 8,896,203 | 14,827,005 | 5,930,802 | 28% | 1,585,877 |
| 1998-1999 | 100,000 | ||||
| 1999-2000 | 100,000 | ||||
| 1.4.1999 to 30.11.99 (Monthly average rate Rs. 727,797 | 5,822,378 | 9,703,963 | 3,881,585 | 31% | 1,203,291 |
| 1.12.1999 to 31.01.2000 not accounted in the book hence estimated at the average monthly rate for 1.4.99 to 30.11.99) | 1,455,596 | 2,425,930 | 970,396 | 31% as 99-2000 rate | 300,822 |
| Total undisclosed income | 50,00,614 |
| Total undisclosed income | 50,00,614 |
| Tax thereon | 30,00,368 |
| Add: 10% Surcharge | 30,00,036 |
| 33,00,404 | |
| Add: Int. u/s. 158 BFA(1) | 1,48,518 |
| 34,48,922 | |
| Less: Tax paid | 2,40,000 |
| Net Tax payable | 32,02,922 |
4. The assessment resulted in a further tax liability of Rs. 30,00,368/- on the total undisclosed income of Rs. 50,00,614/- and with 10% surcharge on the tax amount and interest under Section 158BFA(1) of the Income-tax Act, 1961 [for short ‘the Act’], the net tax liability was Rs. 32,02,922/-.
5. As against this order, assessee preferred an appeal to the Commissioner of Income Tax (Appeals).
6. The Commissioner allowed the appeal in part being of the view that the possible profits of the assessee from the undisclosed income cannot be more than 20% in respect of income attributable for the period relevant to three assessment years, directed deletion of addition as undisclosed income for the period and the Assessing Officer finalized the assessment by taking the undisclosed income for the block period as Rs. 10,72,000/- as against the determination by the Assessing Officer at Rs. 50,00,614/- and also directed the deletion of levy of surcharge at 10% on the tax amount, as surcharge was leviable only after 01.04.2002.
7. As against this order of the Appellate Commissioner the revenue went up in appeal before the Tribunal contending that the Appellate Commissioner was not justified in reducing the undisclosed income computation for the block assessment period and particularly in holding that in respect of the period from 01.04.1999 to the date of search i.e. upto 31.01.2000 which has been considered in two parts by the Assessing Officer and also contended that the partial relief extended for the other two assessment years i.e. for the assessment year 1997-98 and 1998-99 is not justified, as the regular assessments for these two years, on the basis of the disclosed income of the assessee in the return filed by the assessee for these assessment years.
8. The assessee joined issue not only on this aspect to support the view of the Commissioner of Income-tax (Appeals), but also for a good measure, chose to file a cross-appeal seeking for improvement of the relief in its favour over and above what was given by the Commissioner of Income-tax (Appeals).
9. The Tribunal which heard the appeal and the cross-appeal together allowed the appeal of the revenue in part, but rejected the cross-appeal of the assessee.
10. Cross-appeal of the assessee which relates to the assessment year 1997-98 and 1998-99 and on the premise that addition for this period was not justified as regular assessment had taken place etc, was found to be of no merit as in fact addition for this period was not subject-matter of the block assessment.
11. The Tribunal fixed the estimated undisclosed income by adopting an uniform basis of 25% non-disclosure in the books of account which in fact had been admitted by the managing partner of the firm of the assessee and also directed the profit from the undisclosed turnover to be taken at an uniform rate of 28% instead of at varying rates for different years within the block period.
12. This resulted in some addition to the undisclosed income, in the sense, the relief given by the Commissioner of Income Tax (Appeals) came to be reduced to some extent though marginally.
13. The assessee is in appeal before us and the appeal had been admitted on the following questions of law:
1. Whether the order of the Tribunal insofar as it allows the departmental appeal and rejects the appellant’s cross-objections against the order of the CIT(A) was perverse, contrary to facts and against evidences in respect of the Assessment years 1996-97, 1997-98 and 2000-2001?
2. Whether the Assessing Authority was right in law in not deducting from the undisclosed income determined by him in the block assessment for the two Assessment years 1996-97 and 1997-98 the disallowances made by him in the regular assessment and the amounts offered by the appellant in the Block assessment return for the same years?
3. Whether the Tribunal was right in holding that the estimated income for the broken period relevant to assessment year 2000-2001 is liable to be considered as undisclosed income includible in the Block Assessment notwithstanding that no return was due as on the date of search (viz., 7-02-2000) and, advance tax in the sum of Rs. 90.000-00?”
14. We have heard Sri. Sarangan, learned Senior Counsel and Smt. Vani appearing en behalf of the appellant and Sri. Indrakumar, learned senior counsel appearing on behalf of the revenue.
15. Mr. Sarangan, learned senior counsel has mainly urged two points. Firstly it is submitted that the Tribunal has failed to appreciate that the assessment of undisclosed income upto the date of search was neither proper nor justified for the reason that a major part of the accounting period corresponding to assessment year 2000-01 in respect of which, there was still time for the assessee to file its return of income and to disclose the full income and in fact even when the accounting period itself had not come to an end, assuming that the assessee would have suppressed particulars of its income even for this period, i.e., for the period from 01.04.1999 to 81.01.2000 was presumptive and speculative and therefore the block assessment insofar as considering the possibility of undisclosed income for this period is concerned, is definitely not sustainable and that the Tribunal has failed to appreciate this aspect of the matter.
16. The second contention urged is that by assessing the undisclosed income for the period relevant for the assessment year 2000-01, the Assessing Officer has virtually subjected the income attributable to this period to tax twice as the assessee is obliged to file a return and the assessee will be disclosing the income in the regular return and on the regular income it will be again brought to fax subjecting to levy twice the very income once in the assessment for the block period and again in the regular assessment and therefore to this extent levy of tax liability is vitiated and the Tribunal has failed to appreciate this aspect of the matter.
17. Smt. Vani, learned counsel for the appellant has placed reliance on the judgment of the Gauhati High Court in the case of ‘Dr. Mrs. Alaka Goswami v. CIT [2004] 268 ITR 178/ 138 Taxman 212 Submission is that this Judgment has been followed by a division bench of the Delhi High Court in [2005] 276 ITR 589 /[2006] 150 Taxman 239 in the case of CIT v. Mrs. Kumkum Kohli.
18. However, it is pointed out on behalf of the revenue that the subject matter of the block assessment period is only the undisclosed income and not the regular income whether as filed earlier or to be filed by the assessee and therefore though the two judgments cited at Bar are not applicable to the facts of the case as no income is brought to tax otherwise in the present situation.
19. Appearing on behalf of the revenue Mr. Indra Kumar, learned senior counsel, has submitted that it is not as though the assessment for the block period has been passed by the Assessing Officer based on any speculation or presumption, but it was only based on the very admission made by the Manager/ Managing partner of the firm that the assessee was in the practice of not reflecting in the books of account, its entire turnover, but only 75% of the turnover. It is therefore submitted that the same pattern as it prevailed is applied for the entire block period inclusive of the part of the period relevant for assessment year 2000-01 and therefore, no different presumption has been made in respect of this period and the order cannot be termed as either speculative or that it has no base, not can it be argued that it is not based on any material on record.
20. Mr. Indrakumar, learned senior counsel would also urge that the arguments relating to assessment of undisclosed income has resulted in assessing the very income twice, once in the block period and again in the regular assessment is not real; that in fact, it has not happened in the present situation, as the Block assessment is only in respect of the undisclosed income of the assessee and not the disclosed income,
21. We have examined submissions made at the Bar, perused the order of the Tribunal and the record.
22. The Tribunal has interfered on two grounds. Firstly, to ensure that the estimation of the undisclosed income is based on the admission made by the Manager/ Managing partner which is to the effect that the practice of the assessee was to reflect 75% of his business turnover in the books of account. This being supported by the other material found during search and admission also having been made. We do not find any irregularity or illegality or anything wrong in law in the Tribunal directing the undisclosed income being computed based on the admission made by the very assessee. Insofar as the assessment of profit on the undisclosed part of the income is concerned, making it at 25% cannot be found fault with and it is also not in dispute, particularly when the assessee itself had indicated that the profit margin was around 28%-30% of the sales turnover.
23. Insofar as the submission made by the Sri. Sarangan, learned senior counsel is concerned, it is to be noticed that insofar as the first argument is concerned while it is a fact that the assessee had time to file its return particularly as even the accounting period had not come to an end and that in fact assessee could file a return once the accounting period came to an end the subject-matter of the block assessment period was not the disclosed income or that can be disclosed, but only the undisclosed income even as indicated in Section 158BC of the Act, When the assessee had itself admitted as to what is the extent of such undisclosed income and on the basis of such an admission, if it is computed for the entire block period, one cannot find fault moth and the fact that the assessee is disclosing in its regular return to be filed in the normal course would not in any way affect the computation of the undisclosed income for the block period. In fact, the arguments also cannot be accepted for the other reason as the assessee is aware of the turnover which has already been assessed in the block period and it was naturally taken into account to its turnover by filing its return as what it will disclose is only in terms of its books of account etc. which itself reflected only 75% of the actual sales turnover.
24. The other reason is that the computation is only upto the period of search and therefore though in respect of two months of the closing period of the block period the books of accounts were not available, the Assessing Officer having taken the average turnover for the earlier eight months which again was from the books of account, one cannot find fault with the method adopted by the Assessing Officer and therefore the first argument submitted by the learned counsel for the revenue is rejected.
25. Insofar as the second argument is concerned, the same income is assessed twice i.e., both in the regular assessment and in the block period and it is frowned upon in terms of the judgment of the Gauhati High Court and Delhi High Court as cited by the learned counsel appearing: for the assessee. We find that the judgments have no application to the present situation as the subject-matter of the assessment for the block period is only the undisclosed income and no part of the disclosed income is made the subject-matter.
26. A perusal of the assessment year makes it very clear and undisclosed income being taken at 25% over and above the disclosed turnover attributable to the turnover as reflected in the books of account and that being an admission of the assessee and the profit worked out at 25% on the undisclosed turnover, there is absolutely no scope to contend that the same income has been subjected to tax twice i.e., once during the regular assessment and again in the block period Argument proceeds on an erroneous and incorrect premise and therefore cannot succeed.
27. Insofar as the rejection of the cross-appeal of the assessee before the Tribunal is concerned and the appeal of the assessee insofar as this question is concerned, though no separate appeal is filed on this aspect but nevertheless we find that the appeal of the assessee also does not have any merit and the Tribunal has rightly rejected the cross-appeal which was in the first instance not with any merit and has been rightly rejected by the Tribunal as issue has been discussed by the Tribunal while dealing with the appeal of the revenue and the questions do not vary and do not cover the answer given by the Tribunal in respect of the appeal of the revenue. We do not find any error or mistake in the order passed by the Tribunal in rejecting the cross-appeal of the assessee.
We find no scope for interference. The questions are answered against the assessee and in favour of the revenue and the appeal dismissed.
[Citation : 346 ITR 92]