M/s. D. Nitin & CO.,, Surat v. The ACIT., Range-9,, Surat

ITA 2298/AHD/2009 | 2006-2007
Pronouncement Date: 19-03-2010 | Result: Partly Allowed

Appeal Details

RSA Number 229820514 RSA 2009
Assessee PAN AADFD0042R
Bench Ahmedabad
Appeal Number ITA 2298/AHD/2009
Duration Of Justice 7 month(s) 23 day(s)
Appellant M/s. D. Nitin & CO.,, Surat
Respondent The ACIT., Range-9,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 19-03-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 19-03-2010
Date Of Final Hearing 17-03-2010
Next Hearing Date 17-03-2010
Assessment Year 2006-2007
Appeal Filed On 27-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI T.K.SHARMA JUDICIAL MEMBER AND SHRI N.S. SAINI ACCOUNTANT MEMBER DATE OF HEARING: 17.03.10 DRAFTED ON: 17.03.10 ITA NO.2298/AHD/2009 ASSESSMENT YEAR : 2006-2007 M/S. D. NITIN & CO. 201 HIRA PANNA APARTMENT OPP. CRYSTAL CHAMBERS KOHINOOR SOCIETY ROAD VARACHHA ROAD SURAT. VS. THE ADDL. COMMISSIONER OF INCOME TAX RANGE-9 SURAT. PAN/GIR NO. : AADFD 0042 R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI R.N.VEPARI A.R. RESPONDENT BY: SHRI JAGDEO CIT O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V SURAT DATED 30.06.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE READS AS UNDER:- I. REJECTION OF BOOKS (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN CONFIRMING REJECTION OF BOOKS PARTI CULARLY WHEN NO DEFECTS WERE POINTED OUT. (2) THE APPELLANT SUBMITS THAT THE LEARNED CIT(A ) HAS NOT STATED CORRECTLY THAT (A) THE APPELLANT COULD NOT SUBMIT STOCK RECORDS AND DOES NOT CONTAIN DETAILS OF DIAMONDS WHEN DAILY STOCK BOOK W AS PRODUCED AND FILED BOTH WITH A.O. AND CIT(A) (PAGE 6) WHO DI D NOT REGISTER ANY DISSATISFACTION. ITA NO. 2298/AHD/2009 - 2 - (B) THE STOCK BOOK HAS BEEN PREPARED IN A FEW SIT TINGS WHEN THERE IS NO EVIDENCE TO SUGGEST THAT; NOR A.O OR CIT(A) BROUGHT THIS POINT IN HEARING (PAGE 7). (C) NOT FURNISHED PRELIMINARY RECORD OR DOCUMENT ARY EVIDENCE IN CONNECTION WITH VARIOUS PROCESSES INVOLVED WHEN LAB OUR REGISTER JANGAD REGISTER ETC WERE PRODUCED AND NO DISSATISF ACTION WAS EXPRESSED IN HEARING BY A.O. OR CIT(A) (PAGE 7). (3) THE LEARNED CIT(A) HAS NOT DEALT WITH POINT TO POINT REPLY GIVEN TO EACH PARA OF ASSESSMENT ORDER AS ALSO EVID ENCE AND JUDGEMENTS CITED. II. ADDITION OF ALLEGED LOW YIELD (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF YIELD MADE. (2) THE APPELLANT SUBMITS THAT THE LEARNED CIT(A ) HAS NOT DEALT WITH PARTICULARS OF YIELD IN EARLIER TWO YEARS WHEN YIELD WAS LESS NOR MONTHLY / DAILY FIGURES OF YIELD. (3) THE LEARNED CIT(A) HAS ALSO NOT DEALT WITH T HE FACT THAT THERE WAS NO JUSTIFICATION FOR ADDITION WHEN GROSS PROFIT RATE HAD IMPROVED. (4) THE APPELLANT THEREFORE SUBMITS THAT ADDITI ON MADE MAY BE DELETED 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DECIDED THESE ISSUES AS UNDER:- THE GROUNDS OF APPEAL NO. (I) AND (II) ARE COMMON AND INTERRELATED AND ARE HENCE DISCUSSED TOGETHER. THE APPELLANT DERIVES INCOME FROM IMPORT EXPORT AN D MANUFACTURING OF DIAMONDS. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS THE AO OBSERVED THAT ON ONE HAND THE AP PELLANT HAD SHOWN THAT IT'S GP HAD INCREASED TO 9.04% IN TH E CURRENT YEAR AS AGAINST 8.37% IN THE EARLIER YEAR I.E. AN I NCREASE OF 0.67% BUT ON THE OTHER HAND THE YIELD OF THE APPELL ANT HAD DECREASED TO 30.90% IN THE CURRENT YEAR FROM 33.20% IN THE EARLIER YEAR I.E. A SUBSTANTIAL DECREASE OF 2.30%. THUS THE AO WAS OF THE OPINION THAT THE APPELLANT WAS TRYING TO PAINT A ROSY PICTURE BY SHOWING MORE GP OF 0.67% AS AGAINST SUPPRESSION OF YIELD OF 2.30%. THEREFORE THE AO FI RSTLY RECAST THE TRADING AND PROFIT AND LOSS ACCOUNT BY FOLLOWIN G THE SAME ITA NO. 2298/AHD/2009 - 3 - METHOD AS ADOPTED BY THE APPELLANT IN THE PRECEDING YEAR AND BY DOING SO THE AO DERIVED THAT THERE WAS ONLY A N EGLIGIBLE INCREASE OF 0.32% IN THE GP OF THE APPELLANT. FURTHER THE AO OBSERVED THAT IT IS THE APPELLANT W HO DECIDES THAT HOW MUCH REJECTION IS TO BE SHOWN IN REGULAR B OOKS AS THE APPELLANT HAS NEITHER FURNISHED ANY BASIS NOR RECOR DS TO JUSTIFY THE SAME AND HAS MERELY ARGUED THAT THE YIELD CAN R ANGE FROM AS LOW AS 2-3% TO AS HIGH AS 50% OF THE TOTAL ROUGH DIAMONDS. IN VIEW OF THE ABOVE ARGUMENT OF THE APPELLANT THE AO HAS OPINED THAT THE APPELLANT HAS SHOWN A HIGHER REJECT ION THEN THE ACTUAL AND THE PRODUCTION OBTAINED FROM THE SAID IN FLATED FIGURE OF REJECTION IS SOLD IN THE OPEN MARKET. IN THIS TRANSACTION THE ENTIRE SALE CONSIDERATION IS THE APPELLANT'S PROFIT AS HE HAS ALREADY DEBITED THE ENTIRE PURCHASE VALUE OF SUCH STOCK. THE AO THUS C ONCLUDED THAT IN THE DIAMOND INDUSTRY THIS IS THE MOST COMMO N WAY OF SUPPRESSION OF PRODUCTION AND DURING ASSESSMENT STA GE THE ASSESSEES GENERALLY AVOID TO FURNISH THE BASIC DOCU MENTS PERTAINING TO THE MOVEMENT OF STOCK IN VARIOUS STAG ES OF PRODUCTION LOT-WISE DETAIL OF DIAMONDS ETC. FROM WHICH THE CORRECTNESS OF THE BOOKS OF ACCOUNTS COULD BE JUSTI FIED WHEREAS IN ACTUAL PRACTICE DIAMOND BEING A VERY PRECIOUS I TEM ALL SUCH BASIC DOCUMENTS ARE KEPT AND MAINTAINED IN PROPER O RDER SO THAT THE BUSINESSMAN CAN HAVE A CONTROL OVER ITS EM PLOYEES COST AS ALSO MONITOR PRODUCTIVITY AND LEAKAGES OF REVENUE. IT IS A VERY WELL ACCEPTED NORM IN THE DIAMOND INDU STRY THAT HIGHER THE COST OF ROUGH DIAMONDS THE YIELD THEREOF WILL ALSO BE HIGH AND VICE-VERSA. ACCORDINGLY KEEPING THIS FACT OR IN MIND THE AO ALSO COMPARED THE YIELD WITH OTHER ASSESSES ENGAGED IN THE SIMILAR LINE OF ACTIVITY AND WHOSE PURCHASE COS T OF ROUGH DIAMONDS WERE AT PAR WITH THAT OF THE APPELLANT TH E SUMMARY OF WHICH IS AS UNDER. SR. NO. NAME OF THE APPELLANT /O OF YIELD ACHIEVED AVERAGE COST OF ROUGH PER CT. (IN RUPEES) TURNOVER 1 M/S. D NITIN & CO (ASSESESSE) 30.90 2383 124.95 CRORE ITA NO. 2298/AHD/2009 - 4 - 2 ANJANA EXPORTS 34.25 2176 101.69 CRORE 3 PAVASIA EXPORTS 34.20 2141 43.96 CRORE 4 M/S RAJIYA BROTHERS 34.87 2488 38.58 CRORE 5 M/S. KANTILAL EXPORTS 35.57 2867 247.17 CRORE ON MAKING THE ABOVE COMPARISON THE AO OBSERVED THA T THE YIELD AS SHOWN BY THE APPELLANT WAS MUCH LOWER THAN THAT SHOWN BY OTHER ASSESSES ENGAGED IN SIMILAR LINE OF BUSINESS AND WHOSE PURCHASE COST WERE AT PAR WITH THAT OF THE AP PELLANT. FURTHER DURING THE COURSE OF VERIFICATION OF BOOKS OF ACCOUNTS AND OTHER RECORDS IT WAS OBSERVED BY THE AO THAT T HE APPELLANT WAS NOT MAINTAINING PROPER STOCK REGISTER. THE STOC K REGISTER PRODUCED BY THE APPELLANT DID NOT REVEAL ANY SORT O F SPECIFICATION GRADATION QUALITY OR COLOUR ETC. OF THE DIAMONDS. THE AO ALSO OBSERVED THAT THE STOCK REGISTER WAS WR ITTEN IN FEW SITTINGS AND NOT IN A DAY-TO-DAY MANNER WHICH EVIDE NCED THE FALSITY OF THE ACCOUNTS. IT WAS ALSO OBSERVED THAT THE JANGADS / CHALLANS IN SUPPORT OF THE STOCK REGISTER DID NOT C ONTAIN ANY SERIAL NUMBER OR LOT NO. OR DETAILS OF DIAMONDS IN TERMS OF CUT SIZE SHAPE COLOUR PIECES ETC. THE AO ALSO OBSER VED THAT THERE WAS NO MENTION ABOUT ANY SORT OF BIFURCATION GRADA TION SPECIFICATION LOTS OR VALUE-WISE SEGREGATION IN TH E STOCK REGISTER SO AS TO DERIVE THE CORRECT VALUE OF THE CLOSING STOCK. FURTHER THE APPELLANT ALSO FAILED TO PRODUCE ANY D OCUMENTARY EVIDENCE WHICH COULD REVEAL THE CATEGORY OF CUTS OR COLOUR OF A PARTICULAR DIAMOND OR A GROUP OF DIAMONDS. ACCORDINGLY THE AO WAS NOT SATISFIED WITH THE CORR ECTNESS AND THE METHOD OF MAINTENANCE OF BOOKS OF ACCOUNTS. MOR EOVER THE AO ALSO OBSERVED THAT THE APPELLANT HAD SOPHISTICAT ED AND HIGH-TECH LASER MACHINERIES TO CUT AND POLISH THE D IAMONDS IN SUCH A WAY THAT OPTIMUM YIELD COULD BE ACHIEVED HOW EVER ON THE CONTRARY THE YIELD OF DIAMONDS WAS NOT ONLY LOW ER AS COMPARED TO THAT OF THE EARLIER YEAR BUT WAS ALSO L OW AS COMPARED TO THAT ACHIEVED BY OTHER SIMILAR ASSESSES . ITA NO. 2298/AHD/2009 - 5 - FURTHER DURING THE COURSE OF ASSESSMENT PROCEEDING S THE APPELLANT COULD ALSO NOT FURNISH ANY PLAUSIBLE EXPL ANATIONS BACKED BY CORROBORATIVE DOCUMENTARY EVIDENCE IN RES PECT OF THE DEFECTS POINTED OUT BY THE AO IN THE BOOKS OF ACCOU NTS STOCK REGISTER JUSTIFICATION OF THE VALUE OF CLOSING STO CK AND REASONS FOR DECREASE IN THE YIELD AND COULD NOT EXPLAIN THA T IN THE ABSENCE OF SUCH DETAILS AS TO HOW IT WAS ABLE TO VA LUE ITS STOCK FIX THE SALES PRICE OF FINISHED GOODS KEEP A CHECK ON THE MOVEMENT OF ROUGH DIAMONDS AND RECEIPT BACK OF FINI SHED GOODS. ACCORDINGLY THE AO REJECTED THE BOOK RESULTS OF TH E APPELLANT AND ESTIMATED THE YIELD AT 31.90% I.E. 1% ABOVE THE YIELD SHOWN BY THE APPELLANT AND THEREBY MADE AN ADDITION OF R S. 3 65 88 431/- FOR SUPPRESSED YIELD. DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPELLANT HAS MAINLY REITERATED THE SUBMISSIONS AS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. AS REGARDS THE AO'S ALLEGATIONS THAT THE STOCK REGI STER DID NOT CONTAIN THE QUALITY OR SPECIFICATION OF STOCK THE AR RELIED ON THE DECISION OF THE AHMEDABAD TRIBUNAL IN THE CASE OF B. SURESHKUMAR & CO. AND CONTENDED THAT STOCK RECORDS ARE TO BE ACCEPTED CONSIDERING THE PECULIARITIES OF THE BUSIN ESS. THE AR ALSO ARGUED THAT THE WAGES TO WORKERS HAVE BEEN PAI D ON THE BASIS OF THE STOCK REGISTER AND THAT THERE IS COMPL ETE CHECK OVER THE PROCESS AND STOCK AND HENCE CONTENDED THAT THE GENUINENESS OF THE STOCK REGISTER CAN NOT BE DOUBTE D. THE AR CONTENDED THAT IN THE DIAMOND INDUSTRY EACH AND EVERY PIECE OF DIAMOND IS DIFFERENT AND THERE COULD NOT B E ANY FIX STANDARD FOR MEASURING THE YIELD AND VALUE OF THE D IAMONDS AND THERE ARE BOUND TO BE VARIATIONS IN THEIR YIELD. THE AR HAS ALSO ARGUED THAT THE AO HAS COMPARED THE YIELD OF THE APPELLANT WITH THAT OF OTHER ASSESSES WITHOUT F URNISHING THE DETAIL REGARDING THE TYPE OF DIAMONDS INFRASTRUCTU RE HUMAN RESOURCE ETC. OF THE SAID ASSESSES AND HENCE THEI R YIELDS ARE NOT COMPARABLE WITH THAT OF THE APPELLANT. THE AR ALSO SUBMITTED THAT THE APPELLANT HAS MAINTA INED COMPLETE QUANTITATIVE DETAIL OF DIAMONDS PURCHASED PROCESSED ITA NO. 2298/AHD/2009 - 6 - AND SOLD AND ALSO SUBMITTED THAT THE GP OF THE APPE LLANT HAS INCREASED IN THE CURRENT YEAR AS COMPARED TO THE EA RLIER YEAR THE AR ALSO SUBMITTED THAT THE APPELLANT HAD SHOWN YIELD OF 29.20% 30.64% AND 33.20% IN THE EARLIER YEAR VIZ. A.Y. 2003- 04 A.Y. 2004-05 AND A.Y. 2005-06 RESPECTIVELY WH ICH HAVE BEEN ACCEPTED BY THE DEPARTMENT. IN VIEW OF THESE ARGUMENTS THE AR PLEADED THAT THE REJECTION OF BOOK RESULTS IS ERRONEOUS AND THE YIELD AS SHOWN BY THE APPELLANT NEEDS TO BE ACCEPTED. I HAVE GONE THROUGH THE FACTS OF THE CASE VIEW TAK EN BY THE AO AND THE SUBMISSIONS MADE BY THE APPELLANT. THE MAIN ARGUMENT OF THE APPELLANT IS THAT EACH AND EVERY PIECE OF DI AMOND IS DIFFERENT FROM EACH OTHER AND THE YIELD CANNOT R EMAIN CONSTANT AND VARIES DEPENDING ON FACTORS VIZ. (1) T YPE OF THE DIAMOND; (2) SHAPE OF THE DIAMOND; (3) TALENT OF TH E WORKERS; (4) TECHNOLOGY USED ETC. AND EVEN THE AO HAS NOT DISPUTED THESE FACTORS AFFECTING THE YIELD. HOWEVER IN SUPPORT OF THIS ARGUMENT THE APPELLANT COULD NOT SUBMIT ANY CORROB ORATIVE EVIDENCE OR DOCUMENTARY EVIDENCE OR QUALITY-WISE ST OCK RECORDS IN ORDER TO PROVE AS TO HOW THESE FACTORS HAVE AFFECTED ITS YIELD AND ALSO JUSTIFY AS TO HOW THE YIELD OF DIAMONDS HAD DECREASED IN THE CURRENT YEAR AS COMPA RED TO THAT IN THE EARLIER YEAR. IT IS A WELL ACCEPTED STA NDARD THAT THE YIELD DIRECTLY VARIES WITH THE VALUE OF ROUGH DIAMO NDS AND IN THE PRESENT CASE IT IS OBSERVED THAT THE COST OF ROUGH DIAMONDS PER CARAT IS RS. 2 385/- IN THE CURRENT YEAR AS COMPARED TO RS. 2 383/- IN THE EARLIER YEAR. THUS FT IS EVIDEN T THAT ON ONE HAND THE COST PER CARAT OF ROUGH DIAMONDS HAS REMAI NED ALMOST CONSTANT HOWEVER ON THE OTHER HAND THE RE IS A SHARP DECREASE IN THE YIELD OF POLISHED DIAMONDS. THE APP ELLANT HAS NOT BEEN ABLE TO FURNISH ANY PLAUSIBLE EXPLANATION IN RESPECT OF THE FACT THAT HOW THE YIELD HAS DECREASED WHEN THE COST OF THE ROUGH DIAMONDS HAVE REMAINED ALMOST THE SAME AND TH US IN MY OPINION THIS ASPECT ALSO EVIDENCES THAT THERE IS SUPPRESSION IN THE YIELD. FURTHER THE AO HAS ALSO GIVEN THE DETAIL OF AVERAG E COST PER CARAT AND TURNOVER OF OTHER ASSESSES WITH WHOM HE H AS COMPARED YIELD OF THE APPELLANT AND ON GOIN G THROUGH THE SAME IT IS OBSERVED THAT THE COST PER CARAT OF THESE ASSESSES IS AROUND RS. 2 176/- TO RS. 2 867/- I.E. ALMOST ITA NO. 2298/AHD/2009 - 7 - COMPARABLE WITH THE COST OF RS. 2 385/- OF THE APPE LLANT AND THESE ASSESSES HAVE SHOWN YIELD AROUND 34% - 36% WH EREAS THE APPELLANT'S YIELD IS SIGNIFICANTLY LOW AT JUST 30.9 0%. MOREOVER EVEN ON COMPARISON OF THE APPELLANT'S OWN RESULTS I N THE EARLIER YEAR THERE IS A SUBSTANTIAL FALL OF 2.30% IN THE Y IELD IN THE CURRENT YEAR. HENCE EVEN THESE ASPECTS EVIDENCE TH AT THERE IS SUPPRESSION IN THE YIELD. FURTHER IN THE PRESENT CASE IT IS ALSO FOUND THAT THE APPELLANT HAS NOT MAINTAINED PROPER BOOKS OF ACCOUNTS STOCK REGISTER AND OTHER PRIMARY DOCUMENTS IN SUPPORT THEREOF. THE AO HAS POINTED OUT VARIOUS DEFECTS IN THE STOCK REGISTER V IZ. (I) THE STOCK REGISTER DOES NOT CONTAIN THE DETAIL OF DIAMONDS IN TERMS OF QUALITY OR SPECIFICATION; (II) THE STOCK REGISTER H AS BEEN PREPARED IN A FEW SITTINGS AND NOT IN A DAY-TO-DAY MANNER; (III) THERE IS NO MENTION ABOUT ANY SORT OF BIFURCATION GRADATION LOTS OR VALUE IN RESPECT OF THE CLOSING STOCK; ETC. THE APPELLANT HAS GROSSLY FAILED TO GIVE ANY CONCRETE EXPLANATION S IN RESPECT OF THESE DEFECTS AS POINTED OUT BY THE AO AND HENCE I AM INCLINED TO AGREE WITH THE AO THAT THE STOCK REGIST ER IS DEFECTIVE. IT IS ALSO ARGUED BY THE APPELLANT THAT AT THE YEAR END THE STOCK ARE TAKEN ASSORTED GRADED AND VALUATION IS DONE A CCORDINGLY HOWEVER THE APPELLANT HAS COMPLETELY FAILED TO PRO VIDE ANY EVIDENCE AS TO HOW SUCH GRADATION OR ASSORTMENT WAS DONE. FURTHER THE APPELLANT HAS ALSO FAILED TO PRODUCE A NY EVIDENCE WHICH COULD REVEAL THE CATEGORY OF CUTS COLOUR SI ZE AND SHAPE OF A DIAMOND OR GROUP OF DIAMONDS. FURTHER THE APP ELLANT COULD NOT FURNISH ANY PRELIMINARY RECORD OR DOCUMEN TARY EVIDENCE IN CONNECTION WITH THE VARIOUS PROCESSES I NVOLVED IN THE MANUFACTURING OF DIAMONDS VIZ. ASSORTMENT REJE CTION CLEAVING BOILING SAWING GHAT TALIA MATHALA ON THE BASIS OF WHICH THE ACCOUNTS ARE PREPARED AND YIELD IS WORKED OUT. MOREOVER FROM THE BOOKS OF ACCOUNTS AND RECORDS MA INTAINED THE BY THE APPELLANT IT IS NOT POSSIBLE TO ASCERTA IN EVEN THE LOT- WISE MOVEMENT OF DIAMONDS FROM THE STAGES OF PURCHA SE OF ROUGH DIAMONDS TO FINAL SALES OF POLISHED DIAMONDS. THESE ASPECTS AMPLY EVIDENCE THAT THERE ARE SIGNIFICANT D EFECTS AND DEFICIENCIES IN THE BOOKS OF ACCOUNTS STOCK RECORD S AND OTHER PRIMARY RECORDS AS MAINTAINED BY THE APPELLANT. MO REOVER IN THE ABSENCE OF PROPER BASIC DATA AND DOCUMENTS IT IS NOT POSSIBLE TO VERIFY AND RELY ON THE CORRECTNESS OF T HE BOOKS OF ITA NO. 2298/AHD/2009 - 8 - ACCOUNTS THE VALUE OF CLOSING STOCK AND THE YIELD AS SHOWN BY THE APPELLANT AND THEREFORE THEIR CORRECTNESS IS N OT ACCEPTABLE. IT IS PERTINENT TO MENTION THAT EVEN THE AUDITOR OF THE APPELLANT HAS NOT TAKEN THE RESPONSIBILITY OF CERTIFYING THE CORRECTNESS OF THE QUANTITY DETAILS AND HAS SORT OF QUALIFIED HIS REPORT IN RESPECT OF THE CORRECTNESS OF THE DETAILS OF REJECT IONS YIELD AND CLOSING STOCK BY STATING THAT THE SAID FIGURES HAV E BEEN REPORTED AS GIVEN BY THE APPELLANT. THUS EVEN ON T HIS COUNT IT GETS AMPLY EVIDENT THAT THE APPELLANT HAS NOT MAINT AINED ANY PROPER RECORD FROM WHICH THE CORRECTNESS OF THE QUA NTITATIVE DETAILS REJECTIONS YIELD AND CLOSING STOCK COULD BE VERIFIED SINCE IF THE APPELLANT HAD MAINTAINED PROPER RECOR DS IT WOULD HAD DEFINITELY FURNISHED THE SAME TO ITS AUDITOR AS ALSO TO THE AO FOR VERIFICATION OF THE CORRECTNESS THEREOF WHI CH IS NOT THERE IN THE PRESENT CASE. HENCE THERE IS NO DOUBT REGAR DING THE FACT THAT THE BOOKS OF ACCOUNTS STOCK RECORDS ETC. AS MAINTAINED BY THE APPELLANT ARE INCOMPLETE INCORRECT AND DEFECTI VE. NEITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOR DURING THE COURSE OF THESE APPELLATE PROCEEDINGS THE APPE LLANT HAS BEEN ABLE TO FURNISH ANY PROPER EXPLANATIONS IN RES PECT OF THE DEFECTS POINTED OUT IN THE MAINTENANCE OF BOOKS OF ACCOUNTS STOCK RECORDS AND OTHER BASIC & PRIMARY RECORDS IN SUPPORT THEREOF IN ORDER TO PROVE THAT THE RECORDS MAINTAI NED BY IT ARE CORRECT BUT THE APPELLANT HAS MERELY GIVEN GENERAL EXPLANATIONS WHICH ARE NOT ACCEPTABLE CONSIDERING THE FACTS OF THE PRESENT CASE. MOREOVER THE APPELLANT HAS ALSO COMPLETELY FAILED TO FURNISH ANY EXPLANATION WHICH IS BACKED B Y CORROBORATIVE DOCUMENTARY EVIDENCE WHICH COULD JUS TIFY THE STEEP FALL IN ITS YIELD BY 2.30% OVER THE LAST YEAR . I AM OF THE OPINION THAT WHEN ALL THE FACTORS AFFECTING THE YIE LD ARE CONSTANT IN THE CURRENT YEAR AS COMPARED TO THE EARLIER YEAR THEN THE ONUS SHIFTS ON THE APPELLANT TO PROVE AS TO HOW THE YIELD HAS DECREASED SIGNIFICANTLY AND THE SAME HAS TO BE DONE BY FURNISHING SIGNIFICANT EVIDENCES BACKING THE EXPLAN ATIONS. IT IS ALSO OBSERVED THAT AS AGAINST THE FALL IN YIELD OF 2.30% THE AO HAS MADE AN ADDITION OF 1% TO THE YIELD AND HAS THU S TAKEN INTO CONSIDERATION ALL THE ARGUMENTS AS FURNISHED BY THE APPELLANT WHICH IS FAIR AND REASONABLE. ACCORDINGLY I AGREE WITH THE AO THAT THE BOOKS OF ACCOUNTS AS MAINTAINED BY THE APPELLANT ARE INCOMPLETE AND INCO RRECT AND THEREFORE I HEREBY HOLD THAT THE BOOKS OF ACCOUNTS OF THE ITA NO. 2298/AHD/2009 - 9 - APPELLANT HAVE BEEN RIGHTLY REJECTED BY THE AO AND I ALSO UPHOLD THE ADDITION OF 1% IN THE YIELD AMOUNTING TO RS. 3 65 88 431/- AS MADE BY THE AO AS FAIR AND REASONA BLE. IN THE RESULT GROUNDS OF APPEAL NO. (I) AND (II) ARE DISM ISSED. 4. THE LD. A.R. RELIED UPON THE DECISION OF THIS TR IBUNAL IN THE CASE OF M/S. PANKAJ DIAMOND VS. ACIT IN ITA NO.555/ AHD/2008 DATED 5.09.2008 AND SUBMITTED THAT THE TRIBUNAL HA S HELD AS UNDER:- 16. WE FIND THAT THE BOOK RESULT WAS REJECTED BY THE LO WER AUTHORITIES ONLY ON THE GROUND THAT QUALITY-WISE DE TAILS OF DIAMONDS WERE NOT KEPT BY THE ASSESSEE. FURTHER TH E ADDITION WAS MADE MERELY ON ESTIMATE BASIS WITHOUT BRINGING ON RECORD ANY MATERIAL TO SHOW THAT THE ASSESSEE HAS EARNED A NY INCOME IN EXCESS OF THE AMOUNT DISCLOSED IN THE RETURN. IT IS AN ESTABLISHED POSITION OF LAW THAT EVEN AFTER REJECTING THE BOOK RESULT IF THE ASSESSING AUTHORITY ADD ANY INCOME TO THE INCOME DE CLARED BY THE ASSESSEE THEN THE SAID ADDITION HAS TO BE BAS ED ON SOME MATERIAL AND THE SAME CANNOT BE ADDED ON THE WHIMS OR CAPRICE OF THE ASSESSING AUTHORITY. IN THE INSTANT CASE IT IS OBSERVED THAT THE TRADING RESULT SHOWN BY THE ASSESSEE COMPARES F AVOURABLY WITH THE PAST ACCEPTED POSITION IN THE CASE OF THE ASSESSEE ITSELF. THEREFORE MERELY REJECTING THE BOOK RESULT ON THE GROUND THAT QUALITY-WISE DETAILS OF DIAMONDS HAS NOT BEEN MAINT AINED WILL NOT EMPOWER THE A.O TO ADD ANY INCOME TO THE INCOME SHOWN BY THE ASSESSEE. WE ALSO OBSERVE THAT NO MATERIAL COUL D BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE VALUE OF CLOSING STOCK OF DIAMONDS SHOWN BY THE ASSESSEE AT RS.16 25 60 00 0/- WAS INCORRECT OR THE METHOD OF VALUATION CONSISTENTLY A DOPTED AND FOLLOWED BY THE ASSESSEE WAS INCORRECT. IN THE ABSE NCE OF ANY MATERIAL TO SHOW THAT THE ACTUAL VALUE OF CLOSING S TOCK POSSESSED BY THE ASSESSEE AS ON 31.3.2004 WAS MORE THAN THE VALUE SHOWN BY THE ASSESSEE IN OUR CONSIDERED OPINION THE A.O WAS NOT JUSTIFIED IN MAKING TRADING ADDITION OF RS.53 07 21 8/-. FURTHER IT IS OBSERVED THAT NONE OF THE LOWER AUTHORITIES H AVE FOUND THAT THE VARIOUS EXPENSES CLAIMED BY THE ASSESSEE IN ITS P&L A/C WERE NOT SUPPORTED BY VOUCHERS OR NOT VERIFIABLE OR WERE NOT GENUINE. IN THE ABOVE CIRCUMSTANCES THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING VARIOUS EXPENSES DISCLOSED B Y THE ASSESSEES DAY-TO-DAY MAINTAINED BOOKS OF ACCOUNT. FURTHER IN BUSINESS PROFIT IS A RESULT OF VARIOUS DYNAMICS. T HE RESULT OF TWO DIFFERENT BUSINESSMEN DOING THE BUSINESS IN THE SAM E LINE MAY ITA NO. 2298/AHD/2009 - 10 - DEFER GREATLY BECAUSE OF VARIOUS REASONS FOR E.G. THE VALUE OF PLANT AND MACHINERY EMPLOYED IN THE BUSINESS THE R ATIO OF OWN CAPITAL VERSES BORROWED CAPITAL EMPLOYED IN THE BUS INESS TIME DEVOTED BY THE OWNER OF THE BUSINESS RISK TAKING C APACITY OF THE OWNER ETC. THUS MERELY BECAUSE THE PROFIT DISCLOS ED BY THE OTHER BUSINESSMEN IN TERMS OF THE TURNOVER OF ITS B USINESS DEFERS WITH THE RATE OF PROFIT DISCLOSED BY THE ASSESSEE I N TERMS OF HIS TURNOVER WILL NOT BY ITSELF EMPOWERS THE LD. CIT( A) TO ADD ANY AMOUNT TO THE INCOME OF THE ASSESSEE. THE LD. CIT(A ) HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THE RATE OF NET PROFIT OF THE ASSESSEE SHOULD BE THE SAME AS THAT IN THE C ASE OF OTHER ASSESSEE WHICH WERE CONSIDERED BY HIM. WE ARE CONF IDENT THAT THE REVENUE AUTHORITIES MUST HAVE COME ACROSS THE C ASE OF OTHER ASSESSEES WHEREBY SECURING SIMILAR OR MORE TURNOVE R THE ASSESSEE SUFFERS A LOSS IN THE BUSINESS OR SECURED LESSER PROFIT THAN THE ASSESSEE. IN THE INSTANT CASE AS NO SPECI FIC DEFECT IN THE VARIOUS EXPENSES CLAIMED BY THE ASSESSEE IN THE P&L A/C COULD BE POINTED OUT BY THE REVENUE THE LD. CIT(A) WAS N OT JUSTIFIED IN ARBITRARILY APPLYING THE RATE OF NET PROFIT OF 3 % IN MAKING ADDITION OF RS.2 19 33 591/-. AS THE ADDITION OF RS .53 07 218/- AND RS.2 19 33 591/- ARE FOUND TO BE NOT BASED ON C OGENT AND RELEVANT MATERIAL AND ARE BASED MERELY ON THE SURMI SES AND CONJECTURES THE SAME ARE FOUND UNSUSTAINABLE ON TH E FACTS OF THE INSTANT CASE. WE THEREFORE DELETE THE ADDITIO N OF RS.53 07 218/- AND RS.2 19 33 591/-. 5. HE ALSO RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF ITA VS. M/S. B. SURESHKUMAR & CO. IN ITA NO.2632/AH D/2003 ORDER DATED 19.12.2007 WHERE THE TRIBUNAL HELD AS UNDER: - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND THE FAC TS AND CIRCUMSTANCES OF THE CASE. AFTER CAREFUL CONSIDERAT ION OF THE PENALTY OF THE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE OPINION THAT THE ASSESSEE HAVING FURNISHED THE QUAN TITY-WISE AND RATE-WISE DETAILS OF CLOSING STOCK OF FINISHED DIAMONDS THERE WAS NO QUESTION FOR THE ASSESSING OFFICER TO ARRIVE AT THE CONCLUSION THAT THE ASSESSEE INFLATED THE VALUE OF COST PRICE WITHOUT BRINGING ANY EVIDENCE TO SHOW THAT THE RATE ADOPTED BY THE ASSESSEE FOR EVERY QUALITY OF DIAMOND WAS MORE THAN THE COST PRICE OR THE MARKET PRICE. SIMPLY REPLYING ON ONE SALE BILL WITHOUT VERIFYING THE QUALITY OF DIAMOND SOLD UNDER THAT BILL IN ITA NO. 2298/AHD/2009 - 11 - OUR OPINION WAS NOT THE RIGHT COURSE TO ARRIVE AT THE CONCLUSION THAT THE ASSESSEE HAD INFLATED ITS CLOSING STOCK. T HE FACT THAT THE ASSESSEE HAD SOLD 175.18 CARAT OF DIAMOND @ RS.14 7 05/- AS PER INVOICE NO.2 DATED 29.05.2001(IN THE COPY SUBMI TTED BY THE ASSESSEE THE DATE IS APPEARED AS 29/05/02 BUT WHE N THE LD. COUNSEL FOR THE ASSESSEE ASKED TO CLARIFY HE SUBMI TTED THAT THE CORRECT DATE IS 29/05/2001 AND MAY BE READ ACCORDIN GLY) WHICH WAS OUT OF CLOSING STOCK AS ON 31.03.2000 AND THE L D. LD. D.R. HAVING NOT DISPUTED THIS FACT THE ASSESSEES PLEAS THAT VALUATION OF CLOSING STOCK AS ON 31/03/2000 WAS AS PER METHOD FOLLOWED BY IT CONSISTENTLY I.E. COST PRICE OR MARKET PRICE WHICHEVER WAS LESS GETS SUPPORTED. IT IS AN ADMITTED FACT THAT SO FAR AS DIAMOND INDUSTRY IS CONCERNED EACH AND EVERY PIECE OF POLIS HED/FINISHED DIAMOND HAS GOT TO BE OF DIFFERENT QUALITY AND FETC HES DIFFERENT PRICE IN THE MARKET AND SINCE THE ASSESSING OFFICER HAD NOT BROUGHT ANY MATERIAL TO DEAL WITH THIS ASPECT OF IS SUE WE ARE IN AGREEMENT WITH THE SUBMISSION OF THE ASSESSEE AS WE LL AS THE FINDING AND THE CIT(APPEALS) THAT APPLICATION OF AV ERAGE METHOD ON THE BASIS OF ONE SALE BILL WAS NOT JUSTIF IED ON THE PART OF THE ASSESSING OFFICER. 6. RELYING ON THE ABOVE DECISIONS THE LD. A.R. SUB MITTED THAT NON-MAINTENANCE OF QUALITY-WISE STOCK REGISTER FOR PURCHASE AND SALE OF DIAMOND WOULD NOT BE A GROUND FOR REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE IS UNRELIABLE. 7. HE FURTHER RELIED ON THE ASSESSMENT ORDER IN THE CASE OF MS. BHOJAL GEMS PAN NO. AACFB 6118Q FOR ASSESSMENT YEA R 2005-06 AND SUBMITTED THAT ON THE ISSUE OF LOW YIELD OF DIA MONDS THE ASSESSING OFFICER HAD MADE ADDITION OF 1% OF THE RO UGH DIAMONDS USED IN PRODUCTION. HE FURTHER ARGUED THAT IT CAN B E SEEN FROM THE CHART FILED THAT THE YIELD SHOWN BY THE ASSESSEE AN D ACCEPTED BY THE DEPARTMENT IN THE IMMEDIATELY PRECEDING YEARS WAS 2 9.02% FOR AY 2003-04 30.64% FOR AY 2004-05 AND 33.20% FOR A.Y. 2005-06 AND THE YIELD SHOWN IN THE CURRENT YEAR WAS 30.92%. HE FURTHER SUBMITTED THAT THE AVERAGE YIELD OF IMMEDIATELY THREE PRECEDI NG YEARS IS 31.01% ITA NO. 2298/AHD/2009 - 12 - AND THEREFORE ADDITION IF ANY THAT CAN BE MADE TO THE YIELD OF THE ASSESSEE CAN BE 0.09%. 8. HE FURTHER SUBMITTED THAT THE GROSS PROFIT SHOWN AND ACCEPTED IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR WAS 9.17% FOR AY 2004- 05 8.37% FOR AY 2005-06 AND THAT THE GROSS PROFIT OF 9.04% SHOWN IN THE PRESENT YEAR WAS BETTER THAN THAT OF THE EARLIE R YEAR. 9. HE THUS SUBMITTED THAT CONSIDERING THE ENTIRE F ACTS AND CIRCUMSTANCES OF THE CASE THE BOOK RESULT SHOWN BY THE ASSESSEE SHOULD BE ACCEPTED AND ADDITION MADE BY THE AO AND SUSTAINED BY THE CIT(A) SHOULD BE DELETED. 10. THE LD. D.R. ON THE OTHER HAND VEHEMENTLY ARGU ED AND SUPPORTED THE ORDER OF THE CIT(A). 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE O N RECORD. IN THE INSTANT CASE THE ASSESSEE IS ENGAGED IN THE BUSINE SS OF IMPORTS EXPORTS AND MANUFACTURING OF DIAMONDS. THE AO OBSERVED THAT THE STOCK REGISTER MAINTAINED BY THE ASSESSEE WAS WRITTEN ON A FEW SITTINGS AND WAS NOT MAINTAINED ON DAY TO DAY BASIS. FURTHER ST OCK REGISTER CONTAINS ONLY QUANTITY AND AMOUNT AND DOES NOT CONT AIN SPECIFICATION- WISE COLOUR-WISE GRADATION-WISE OR QUALITY-WISE DETAILS. THEREFORE HE REJECTED THE BOOK RESULT OF THE ASSESSEE. HE OBS ERVED THAT YIELD SHOWN BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERAT ION COMES TO 30.92% WHEREAS THE YIELD IN THE IMMEDIATELY PRECED ING ASSESSMENT YEAR WAS 33.20%. THUS THERE WAS A DECLINE OF 2.30% IN THE YIELD. IN VIEW OF THE ABOVE HE ESTIMATED THE YIELD OF THE AS SESSEE AT 31.90% ITA NO. 2298/AHD/2009 - 13 - AND THEREBY ADDED RS.3 65 88 431/- TO THE INCOME OF THE ASSESSEE AS SUPPRESSED SALE OF DIAMOND RECEIVED BY SHOWING LOWE R YIELD. ON APPEAL CIT(A) CONFIRMED THE ABOVE ACTION OF THE AO . THE LD. A.R. OF THE ASSESSEE SUBMITTED BEFORE US THAT IN THE LIN E OF THE BUSINESS IN WHICH THE ASSESSEE WAS ENGAGED IT WAS NOT POSSIBLE TO MAINTAIN SPECIFICATION-WISE GRADATION WISE QUALITY-WISE AN D COLOUR-WISE STOCK REGISTER. FOR THE ABOVE HE PLACED RELIANCE ON THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. B.SURESHKUMAR & CO. IN ITA NO.2632/AHD/2003 DATED 19.12.2007. THE LD. A.R. OF THE ASSESSEE FURTHER CONTENDED THAT MERELY THE ABOVE DEFECT IN T HE STOCK REGISTER DOES NOT EMPOWER THE AO TO REJECT THE BOOK RESULT I N ABSENCE OF ANY OTHER DEFECT AND ALSO CONTENDED THAT WHEN THE GROSS PROFIT RATE DECLARED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDE RATION WHICH IS 9.04% FOR THE YEAR IS BETTER THAN THE GROSS PROFIT RATE OF 8.37% ACCEPTED IN THE CASE OF THE ASSESSEE IN THE IMMEDIA TELY PRECEDING YEAR THE ABOVE MENTIONED DEFECTS BY THE AO DOES NOT EMPO WER THE AO TO MAKE ADDITIONS ON THE BASIS OF WHIMS AND CAPRICES. FOR THE ABOVE SUBMISSIONS HE PLACED RELIANCE OF THE DECISION OF THIS TRIBUNAL IN THE CASE OF M/S.PANKAJ DIAMONDS VS. ACIT ITA NO.555/AH D/2008 ORDER DATED 5.09.2008. LASTLY THE LD. A.R. OF THE ASSESS EE CONTENDED THAT THE YIELD ACCEPTED IN THE CASE OF THE ASSESSEE IN P RECEDING THREE ASSESSMENT YEARS WERE 29.02% FOR AY 2003-04 30.64% FOR AY 2004- 05 AND 33.20% FOR A.Y. 2005-06 AND THUS THE AVERAG E YIELD COMES TO 31.01% AND THEREFORE THE ADDITION COULD BE SUSTAIN ED ONLY UPTO 0.09% (I.E. DIFFERENCE BETWEEN 31.01% AND 30.92%) . WE FIND THAT IN THE INSTANT CASE NO SPECIFIC DEFECT IN THE OPENING STOCK PURCHASE SALE AND CLOSING STOCK SHOWN BY THE ASSESSEE COULD BE PO INTED OUT BY THE REVENUE. FURTHER IT IS ALSO NOT IN DISPUTE THAT TH E GROSS PROFIT DISCLOSED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION CO MPARES FAVOURABLY ITA NO. 2298/AHD/2009 - 14 - WITH THE RATE OF GROSS PROFIT ACCEPTED BY THE DEPAR TMENT IN THE CASE OF THE ASSESSEE IN THE IMMEDIATELY PRECEDING ASSESSMEN T YEAR. IN SUCH CIRCUMSTANCES IN OUR CONSIDERED OPINION NO ADDITI ON CAN BE MADE BY THE AO IN THE INCOME DISCLOSED BY THE BOOKS OF ACCO UNT BY THE ASSESSEE WITHOUT BRINGING ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAS ACTUALLY EARNED MORE INCOME. THE ASSES SEE EXPLAINED BEFORE US THAT THE PERCENTAGE OF YIELD DEPENDS UPON VARIOUS FACTORS LIKE SIZE OF DIAMONDS QUALITY OF DIAMONDS HARDNES S OF DIAMOND AND VARIES FROM PIECE TO PIECE. THE ABOVE CONTENTION OF THE ASSESSEE COULD NOT BE CONTROVERTED BY THE REVENUE BY BRINGING ANY MATERIAL ON RECORD. IT IS OBSERVED THAT THOUGH THE PERCENTAGE OF YIELD SHOWN BY THE ASSESSEE IS LESSER IN COMPARISON TO THE IMMEDIATELY PRECEDING YEAR BUT THE RATE OF GROSS PROFIT SHOWN BY THE ASSESSEE IS B ETTER THAN THE RATE OF GROSS PROFIT ACCEPTED IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. THUS WE FIND THAT THE ESTIMATE 31.90% AS YIELD BY THE REVENUE IS WITHOUT ANY COGENT BASIS AND THEREFORE NOT SUSTAIN ABLE. AS THE LD. A.R. OF THE ASSESSEE ACCEPTED BEFORE US FOR ACCEPTA NCE OF YIELD IN THE INSTANT CASE AT 31.01% WHICH IS THE AVERAGE OF PAST THREE YEARS YIELD ACCEPTED IN THE CASE OF THE ASSESSEE AND THEREBY RE TENTION OF ADDITION UPTO 0.09% WILL HAVE NO GRIEVANCE TO THE ASSESSEE ON THE ABOVE FACTS AND CIRCUMSTANCES IN OUR OPINION IT SHALL MEET TH E ENDS OF JUSTICE IF ADDITION IS RETAINED BY ESTIMATING THE YIELD OF ASS ESSEE AT 31.01%. WE THEREFORE SET ASIDE THE ORDERS OF THE LOWER AUTHOR ITIES ON THIS ISSUE AND DIRECT THE AO TO RETAIN THE ADDITION BY ESTIMATING YIELD AT 31.01% AND DELETE THE BALANCE ADDITION. THUS THIS GROUND OF A PPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 12. GROUND NO.III OF THE APPEAL READS AS UNDER:- III. MISCELLANEOUS ITA NO. 2298/AHD/2009 - 15 - (1) THE LEARNED CIT(A) APPEALS OUGHT TO HAVE DEL ETED INTEREST U/S.234B AND 234C OF THE ACT. (2) THE APPELLANT CRAVES LEAVE TO ADD ALTER OR VARY ANY OF THE GROUNDS OF APPEAL. 13. AT THE TIME OF THE HEARING NO ARGUMENTS WERE A DVANCED BY THE LD. A.R. ON THIS GROUND OF APPEAL TAKEN IN THE MEMORAND UM OF APPEAL. WE HOLD THAT CHARGING OF INTEREST UNDER SECTION 234B A ND 234C OF THE ACT IS CONSEQUENTIAL AND ACCORDINGLY DISMISS THIS GROUND O F THE APPEAL OF THE ASSESSEE. 14. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 19/03/2009. SD/- SD/- ( T.K. SHARMA ) ( N.S. SAINI ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED 19/03/2009 PREPARED AND COMPARED BY : PARAS # COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD