Rajiv Sharma, Advocate for the Assessee. Dr. G.S. Phani Kishore, CIT DR for the Revenue

The captioned are the cross appeals, two by the assessee bearing ITA Nos. 663 & 664/Chd/2017 relating to assessment year 2012-13 and 13-14 respectively, whereas, ITA No. 773/Chd/2017 is an appeal preferred by the Revenue for assessment year 2013-14 against the orders of Commissioner of Income Tax (Appeals)-5, Ludhiana [hereinafter referred to as ‘CIT (A)’].

2. First, we take up assessee’s appeals for assessment years 2012- 13 & 2013-14, wherein, following grounds have been raised by the assessee :-

ITA No. 663/Chd/2017 (A.Y. 2012-13):-

1. That the order of the learned Commissioner of Income Tax (Appeals)-5, Ludhiana dated 10.02.2017 is wrong against law and facts of the case.

2. That the learned Commissioner of Income Tax (Appeals)-5, Ludhiana erred in confirming not allowing to set off business losses with the surrendered/ disclosed business income of Rs. 9,10,00,000/-.

3. That the learned Commissioner of Income Tax (Appeals)-5, Ludhiana failed to appreciate the facts and erred in confirming addition made by learned Assessing Officer of Rs. 63,16,429/- on account of disallowance of depreciation on machinery.

4. That the learned Commissioner of Income Tax (Appeals)-5, Ludhiana failed to appreciate the facts and erred in confirming addition made by learned Assessing Officer of Rs. 5,65,00,000/- on substantive basis on account of funds invested by M/s Sigma Fincap Private Limited in appellant company.

5. That the learned Commissioner of Income Tax (Appeals)-5, Ludhiana failed to appreciate the facts and erred in confirming addition made by learned Assessing Officer of Rs. 9,00,65,888/- on account of alleged excess raw material consumption without any basis and adding the same to the returned income of the assessee.

6. That the assessee craves to amend, alter, delete or supplement any ground of appeal before the appeal is finally heard and disposed off.

ITA No. 664/Chd/2019 (A.Y. 2013-14):-

1. That the order of Ld. CIT(A)-1, Ludhiana dated 17.2.2017 is wrong against law and facts of the case.

2. That the Ld. CIT(A)-5, Ludhiana erred in confirming not allowing to set off business loses with the surrendered/ disclosed business income of Rs. 8.12,00,000/-.

3. That the Ld. CIT(A)-5,Ludhiana failed to appreciate the facts and erred in confirming addition made by Ld. Assessing Officer of Rs. 53,68,965/- on account of disallowance of depreciation on machinery.

4. That the Ld. CIT(A)-5,Ludhiana failed to appreciate the facts and erred in confirming addition made by Ld. Assessing Officer of Rs. 2,43,107,918/- on substantative basis on account of the funds invested by M/s Sigma Fincap Private Limited in appellant company.

5. That the Ld. CIT(A)-5,Ludhiana failed to appreciate the facts and erred in confirming addition made by Ld. Assessing Officer of Rs. 3,47,03,234/- on account of alleged excess raw material consumption without any basis and adding the same to the returned income of the assessee.

6. That the Ld. CIT(A)-5,Ludhiana erred in confirming addition made by the Ld. Assessing Officer of Rs. 6,73,77,284/- on account of unexplained cash credits.

7. That the surrendered / disclosed covers the entries recorded in seized annexure. A-1. A-2 and A-3 and the learned CIT(A)-5, Ludhiana failed to appreciate the facts in proper perspective.

8. The appellant craves to amend, alter, delete or supplement any ground of appeal before the appeal is finally heard and disposed off.

3. The Ld. Counsel for the assessee, at the outset, has submitted that except ground No.2 in each of the appeal, he does not press the remaining grounds of appeals. Hence, the other grounds in both the appeals stand dismissed as ‘not pressed’.

4. Vide to ground No. 2 of both the appeals, the assessee has contested the action of the lower authorities in not allowing set off of business losses against the surrendered / disclosed business income. This issue now stands clarified with the CBDT Circular No.11 of 2019 whereby the CBDT has clarified that an assessee will be entitled to set off of losses against income determined u/s 115BBE of the Act till assessment year 2016-17. The relevant part of the Circular is reproduced as under:-

2. In this regard, it has been brought to the notice of the Central Board of Direct Taxes(the Board) that in assessments prior to assessment year 2017-18, while some of the Assessing Officers have allowed set off of losses against the additions made by them under Section(s) 68/69/69A/69B/69C/69D, in some cases, set off of losses against the additions made under Section 115BBE(1) of the Act have not been allowed. As the amendment inserting the words 'or set off of any loss' is applicable with effect from 1st of April, 2017 and applies from assessment year 2017-18 onwards, conflicting views have been taken by the Assessing Officers in assessments for years prior to assessment year 2017-18. The matter has been referred to the Board so that a consistent approach is adopted by the Assessing Officers while applying provision of section 115BBE in assessments for period prior to the assessment year 2017-18.

3. The Board has examined the matter. The Circular No. 3/2017 of the Board dated 20th January, 2017 which contains Explanatory notes to the provisions of the Finance Act, 2016, at para 46.2, regarding amendment made in section 115BBE(2) of the Act mentions that currently there is uncertainty on the issue of set-off of losses against income referred to in section 115BBE. It also further mentions that the pre-amended provision of section 115BBE of the Act did not convey the intention that losses shall not be allowed to be set-off against income referred to in section 115BBE of the Act and hence, the amendment was made vide the Finance Act, 2016.

4. Thus keeping the legislative intent behind amendment in section 115BBE(2) vide the Finance Act, 2016 to remove any ambiguity of interpretation, the Board is of the view that since the term 'or set off of any loss' was specifically inserted only vide the Finance Act 2016, w.e.f. 01.04.2017, an assessee is entitled to claim set-off of loss against income determined under section 115BBE of the Act till the assessment year 2016-17.

5. The contents of this Circular may be circulated widely for information of all stakeholders and departmental officers. The pending assessments and litigations on this issue may be handled accordingly.

6. Hindi version to follow. Sd/- Under Secretary (ITA.II), CBDT”

5. The assessment years involved in these appeals being 2012-13 & 2013-14, therefore, the assessee is accordingly entitled to set off of current year losses against deemed income. In view of our observations made above, Ground No.2 in both the appeals is accordingly allowed in favour of the assessee. Both these appeals of the assessee stand partly allowed.

6. Now we take up appeal of the Revenue in ITA No. 773/Chd/2017, wherein, following grounds have been raised:-

ITA No. 773/chd/2017

1 Whether on the facts and circumstances of the case, the Ld. CIT(A) is justified in deleting the addition of Rs. 2,48,013/- on account of disallowance of interest in respect of investment made in jewellery ignoring the fact that investment in jewellery does not serve any business purpose. Rajara jeswaw R.)

2 Whether on the facts and circumstances of the case, the Ld. CIT(A) is justified in deleting the addition of Rs. 1,69,36,940/- made on account of gross profit earned from alleged unaccounted sales ignoring the fact that the cash and stock as per books of account did not match with the actual cash and stock found on the date of search. 3 The Appellant craves leave to add or amend the grounds of appeal on or before is heard and disposed off.

7. Ground No.1 : So far as ground No.1 is concerned, the Ld. Counsel for the assessee has fairly agreed that he does not have a case in respect of ground No.1. He, therefore, conceded that the investment made in jewellery did not have any link / concern with the business of the assessee, therefore, the disallowance of interest made by the Assessing Officer was justified. In view of this, ground No.1 of the Departmental appeal stands allowed.

8. Ground No.2: Vide ground No.2, the Revenue has agitated the action of the CIT(A) in deleting the addition of Rs. 1,69,36,940/- made in the gross profit for alleged unaccounted sales and corresponding investment in purchases.

The Assessing Officer noticed that during the course of search proceedings at the factory premises of the assessee company, the cash and stock as per books of account did not match with the actual cash and stock found on the date of search. The assessee was asked to explain the shortfall in cash amounting to Rs. l0,66,924/- and shortfall in stock amounting to Rs.1,58,70,016/- and why these may not be treated as unaccounted transactions / sales to be added back to the total income of the assessee. The assessee vide letter dated 10.03.2015 submitted that this issue has already been explained in trading account of unaccounted business transactions relating to annexures A-l, A-2 and A-3. The explanation of the assessee was considered but not found acceptable by the Assessing Officer as the same could not be verified and further that the AR of the assessee failed to prove the genuineness along with independent evidence to corroborate the same with documentary evidences. Thus, the Assessing Officer made an addition of Rs. 1,69,36,940/- on account of gross profit earned by the assessee on the unaccounted sales and corresponding investment in the purchases.

9. The Ld. CIT(A), however, deleted the additions so made by the Assessing Officer, observing as under:-

“The AR during the course of appellate proceedings submitted that these aspects were taken into consideration while making the surrender. The assessee has accepted transactions of sale and purchase not recorded in the books of accounts. The AR argued that the difference in stock and cash is on account of these unrecorded sale purchase carried out by the assessee for which adequate amount of income has been surrendered during the search. It has also been argued that the AO has made a total addition of Rs. 12,47,68,112/- in A.Y. 2012-13 and A.Y. 2013-14 on account of excess consumption of Raw Material shown by the assessee. AR argued that this amount is sufficient to cover the addition of Rs.6,73,77,184/- in Ground No.5, Rs.2,75,00,000/- in Ground No.6 and Rs.1,69,36,940/- in Ground No.7 (total Rs.11,18,14,124/-). The AR argued that this has resulted into double addition. The facts of the case, the order passed by the A.O. and the arguments of the AR during the appellate proceedings have been considered. These issues were confronted to the Director of the assessee company in his statement recorded on 18.09.2012 and the relevant part of the statement is reproduced below:

Q11. It is seen as per the trial balances submitted by you at the corporate office on 13 09.2012 that the stock in M/s Saber papers Limited is short. Please explain. The difference is around Rs.1.5 crores.

Ans 11 Sir, this different is on account of sale made outside book as per Annexures A- 1 to A-3. The remaining might be due to differences in valuation." There is merit in the arguments of the AR that once the addition has been made on account of unrecorded sales, then no addition on account of shortage of stock or investment in stock is required to be made. Under the facts and circumstances of the case the arguments of the AR appears acceptable and the addition made by the AO is not found sustainable and hence deleted.”

10. Since the Ld. CIT(A) has held that the aforesaid addition of income stand covered by the income already declared by the assessee, hence, we do not find any infirmity in the order of the CIT (A) on this issue.

Ground No.2 of the Revenue’s appeal, therefore, stands dismissed.

11. Ground No.3: This ground is general in nature and does not require any specific adjudication.

In the result, both the appeals of the assessee and the appeal of the Revenue stands partly allowed.

Order could not be pronounced earlier due to non-functioning of the Bench on account of curfew / lockdown in the wake of Covid-19 Pandemic.