Delhi High Court High Court

Commissioner Of Income Tax-Viii vs M/S Paradise Holidays on 28 April, 2010

Delhi High Court
Commissioner Of Income Tax-Viii vs M/S Paradise Holidays on 28 April, 2010
Author: V. K. Jain
              THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Delivered on: 28.04.2010

+            ITA 445/2010

COMMISSIONER OF INCOME TAX-VIII                       ... Appellant


                                - versus -


M/S PARADISE HOLIDAYS                                 ... Respondent

Advocates who appeared in this case:

For the Appellant : Ms Prem Lata Bansal
For the Respondent :

CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to
see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes

V.K. JAIN, J.(ORAL)

1. This appeal is directed against the order of the Income

Tax Appellate Tribunal dated 23.12.2008, whereby it dismissed

the appeal, being ITA No.5028/Del/2007, filed by the appellant

against the order passed by Commissioner of Income

Tax(Appeals), in respect of assessment of the respondent, for

the assessment year 2004-2005.

2. The assessee firm, which is engaged in the business

of travel and tourism, as a tour operator arranging inland tour

ITA No.445/2010 Page 1 of 7
of foreign tourists visiting India, filed its return declaring

taxable income of Rs.42,53,536/- for the assessment year

2004-2005. The net profit shown in the return was at 7.93%

of the receipts. Since the Assessing Officer felt that the net

profit reported by the assessee was on lower side, he picked up

the expenses relating to seven tours organized by the

respondent. On a consideration of the accounts furnished by

the assessee, the Assessing Officer felt that the assessee could

not demonstrate any pattern as to uniformity of rates etc. and

the expenses debited in the tour Ledger did not reconcile with

the tour itinerary. He, therefore, rejected the book results in

terms of Section 145(3) of the Income Tax Act, 1961 and

assessed the income @ 12% of gross foreign receipts. Net rate

of 10% was applied by the Assessing Officer, to determine the

income from Indian business receipts.

3. In the appeal filed by the assessee, Commissioner of

Income Tax(Appeals) noted that not only the notices issued

under Sections 142(1), 143(2) were complied with by the

assessee, all the Books of Account and vouchers etc. were also

produced before the Assessing Officer, for scrutiny by him. He

also found that for all intents and purposes the assessment

was complete under Section 143(3), though the Assessing

ITA No.445/2010 Page 2 of 7
Officer purported to act under Section 144 of the Act. It was

further noted by CIT(A) that the assessee had not suppressed

any part of receipts and all the receipts were properly vouched.

He also found that the receipts as well as the expenses of each

tour were separately accounted for in the ledger account, and

even gross profit arising in respect of each tour was properly

ascertainable. He felt that the order passed by the Assessing

Officer was based on presumptions and conjectures, without

bringing any positive evidence on record. He, therefore,

directed the Assessing Officer to accept the income returned by

the appellant, after allowing deduction under Section 80 HHD.

4. The Income Tax Appellate Tribunal noted that

though one reason assigned by the Assessing Officer for

rejecting the Books of Account was that the net profit disclosed

by the assessee was on the lower side considering the line of

business in which it was engaged, no specific reasons of higher

profit having been declared by any similarly situated assessee

had not been found by the Assessing Officer. The Tribunal

accepted the contention of the assessee that considering the

nature of business of the assessee, a formal agreement with

the foreign principal was not imperative. As regards

reconciliation of the tour expenses with the tour itinerary, it

ITA No.445/2010 Page 3 of 7
was held that the itinerary was tentative for the purpose of

fixing the charges but the same could be changed depending

upon various factors, including the number of days of the

entire tour, period of stay in a particular place, the quality of

hotel services provided to the tourists and frequent travel of

tourists from one place to another. The Tribunal felt that the

exact bill could be raised only after execution of the tour

programme and, therefore, could not have been compared with

the agreement or contract note with the foreign principal in

order to ascertain the correct income of the assessee.

5. Section 145(3) of Act provides for assessment in the

manner prescribed in Section 144 of the Act where the

Assessing Officer is not satisfied about the correctness or

completeness of the accounts of the assessee or where either

the method of accounting provided in sub-Section (1) or the

accounting standards as notified under sub-Section (2) having

been regularly followed by the assessee. It is not the case of

the Revenue that the assessee had not followed either cash or

mercantile system of accounting. It is also not the case of the

Revenue that the Central Government had notified any

particular accounting standards to be followed by tour

operators. Hence, the second part of sub-Section (3) of

ITA No.445/2010 Page 4 of 7
Section 145 does not apply to this case.

6. The Assessing Officer has not pointed out any specific

defect or discrepancy in the Account Books maintained by the

assessee. Admittedly, the assessee had been maintaining

regular Books of Accounts, which were duly audited by an

independent Chartered Accountant. As noted by CIT(A), the

financial results were fully supported by the assessee with

vouchers and the Books of Account were complete and correct

in all respects. The accounts which are regularly maintained

in the course of business and are duly audited, free from any

qualification by the auditors, should normally be taken as

correct unless there are adequate reasons to indicate that they

are incorrect or unreliable. The onus is upon the Revenue to

show that either the Books of Accounts maintained by the

assessee were incorrect or incomplete or method of accounting

adopted by him was such that true profits of the assessee

cannot be deduced therefrom.

7. The question as to whether the accounts produced by

the assessee were defective/incomplete or not is a question of

fact. The Commissioner of Income Tax(Appeals) as well as

Income Tax Appellate Tribunal have found that the accounts

maintained by the respondent were neither defective nor

ITA No.445/2010 Page 5 of 7
incomplete. Even the Assessing Officer has not found any fault

as such with the system of accounting being followed by the

assessee. The Tribunal which is the final fact finding authority

has held that considering the nature of the business of the

assessee, it was not obligatory to enter into a formal agreement

with the foreign principal. Hence, non-production of formal

agreements with the foreign principals would not render the

accounts of the assessee incomplete and would not give

justification to the Assessing Officer to reject them under

Section 145(3) of the Act. Similarly, the explanation given by

the assessee for the tour expenses not reconciling with tour

itinerary having been accepted, both by Commissioner of

Income Tax(Appeals) as well as by the Tribunal, the accounts

of the assessee cannot be said to be defective on this ground

and, therefore, could not have been rejected. If any particular

expense claimed by the assessee remained unverified, the

Assessing Officer could have disallowed that particular

expense. But, that by itself cannot be a ground for rejection of

accounts as a whole under Section 145(3) of the Act. The

finding of fact recorded by the ITAT has not been shown to be

perverse, and hence cannot be interfered with by this Court.

8. For the reasons given in the preceding paragraphs,

ITA No.445/2010 Page 6 of 7
no substantial question of law arises for our consideration.

The appeal is, accordingly, dismissed.

(V.K. JAIN)
JUDGE

(BADAR DURREZ AHMED)
JUDGE
APRIL 28, 2010
RS/

ITA No.445/2010 Page 7 of 7