2018 (12) TMI 655 - AT - Income Tax

Appeal Partly Allowed: Assessments Adjusted, Capital Expenditure Remitted for Review

Titan Laboratories Pvt. Ltd. Versus DY. Commissioner of Income Tax-10 (2), Mumbai

The appeal was partly allowed. The Tribunal estimated the additions at 10% of the alleged bogus purchases, amounting to Rs. 43,90,016/-, and remitted the ... Addition to VAT payment to the income of the appellant - Held that:- Full disallowance of the purchases under dispute as made by lower authorities was not justified. AR has canvassed that input VAT was never claimed as deduction and therefore disallowance thereof amounted to double taxation. We do not agree with the same since the input VAT has been adjusted against output VAT and the net amount of VAT has been paid / refunded by the assessee, which in effect amounts to indirect debit to the financial statements keeping in view that fact that purchases were not considered as genuine and therefore, the input VAT claimed there against also could not be considered to be genuine. Additional income on account of alleged bogus purchases - Held that:- Addition from a supplier against which the surrender was not made by the assessee. However, as noted by lower authorities, the purchases made from this supplier were also not proved conclusively as in the case of suspicious dealers. Therefore, the same stand on similar footing. This ground stand dismissed. Addition on account of claim of loss arising out of foreign currency term loan - Held that:- AR, while fairly conceding that the issue stood against the assessee by the order of this Tribunal in immediately preceding AY 2009-10, submitted that the fact that the machinery was already put to us by the assessee has not been considered by the Tribunal and therefore, the same was rendered on erroneous assumption of facts. However, since a view has already been taken by the Tribunal on identical facts and circumstances, refraining from adjudicating the same and respectfully following the same, we conclude that the loss was not allowable as revenue expenditure. Ground Number-4 & 9 stands dismissed. However, we find force in the alternative plea that the same should be treated as capital expenditure and eligible for depreciation. Therefore, the matter stand remitted back to the file of Ld. AO to consider the alternative plea as raised by Ld. AR before us and re-adjudicate as per law. Issues Involved:1. Adjudication of Additional Grounds of Appeal.2. Addition of Alleged Bogus Purchases.3. Initiation of Penalty Proceedings.4. Application of Gross Profit Ratio.5. Disallowance of Loss on Foreign Currency Term Loan.6. Deduction and Double Addition of VAT Payment.7. Confirmation of Addition of Purchases.8. Treatment of Revenue Expenditure as Capital Expenditure.Issue-wise Detailed Analysis:1. Adjudication of Additional Grounds of Appeal:The assessee raised additional grounds of appeal which were admitted and renumbered as ground numbers 9 & 10. These grounds pertained to the purchase of machinery from India, conversion of a loan into foreign currency, and the treatment of incurred loss as revenue expense. The Tribunal noted that these grounds did not require appreciation of new facts and were thus admitted for consideration.2. Addition of Alleged Bogus Purchases:The primary issue was the addition of Rs. 4,39,00,166/- to the assessee's income based on alleged bogus purchases from 14 suspicious dealers. The genesis of this addition stemmed from information received from the Income Tax and Sales Tax Departments, indicating that these dealers issued fake purchase bills without actual delivery of goods. During a survey, the assessee admitted to these bogus purchases and declared additional income. However, the assessee later retracted this statement, claiming it was made under pressure. The Tribunal found that while the assessee provided primary purchase documents and bank payment proofs, there was no corroborative evidence of actual delivery of goods. Consequently, the Tribunal estimated the additions at 10% of the alleged bogus purchases, amounting to Rs. 43,90,016/-.3. Initiation of Penalty Proceedings:The assessee contended that the penalty proceedings were unjustified as the surrender of income was conditional on the assurance that no penalty would be levied. The Tribunal did not provide a specific ruling on this issue within the detailed analysis of the judgment.4. Application of Gross Profit Ratio:The assessee argued that the CIT(A) erred in not applying the Gross Profit Ratio on the disputed purchases, which were used for testing, quality control, and production. The Tribunal did not find merit in this argument and upheld the lower authorities' decision to disallow the gross purchases.5. Disallowance of Loss on Foreign Currency Term Loan:The assessee claimed a loss of Rs. 17,47,899/- on a foreign currency term loan as a revenue expense. The Tribunal noted that this issue had already been decided against the assessee in the previous assessment year (AY 2009-10). Respectfully following the earlier decision, the Tribunal concluded that the loss was not allowable as revenue expenditure. However, the Tribunal remitted the matter back to the AO to consider the alternative plea of treating the loss as capital expenditure eligible for depreciation.6. Deduction and Double Addition of VAT Payment:The assessee contended that the addition of VAT payment of Rs. 16,14,268/- resulted in double taxation as it was not claimed as an expense in the Profit and Loss Account. The Tribunal disagreed, noting that the input VAT had been adjusted against output VAT, effectively debiting the financial statements. Thus, the input VAT could not be considered genuine if the purchases were not genuine.7. Confirmation of Addition of Purchases:The CIT(A) confirmed the addition of Rs. 19,11,000/- out of other purchases, leading to a total addition of Rs. 4,39,00,166/-. The Tribunal found that the purchases from this supplier were also not conclusively proved, similar to the other suspicious dealers. Therefore, this ground was dismissed.8. Treatment of Revenue Expenditure as Capital Expenditure:The Tribunal agreed with the assessee's alternative plea that if the loss on the foreign currency term loan was not allowable as revenue expenditure, it should be treated as capital expenditure and eligible for depreciation. The matter was remitted back to the AO for re-adjudication in this regard.Conclusion:The appeal was partly allowed. The Tribunal estimated the additions at 10% of the alleged bogus purchases, amounting to Rs. 43,90,016/-, and remitted the matter of foreign currency term loan loss back to the AO for reconsideration as capital expenditure eligible for depreciation. Other grounds raised by the assessee were dismissed.