2006 (8) TMI 443 - AT - Income Tax

Best judgment assessment - Form of appeal and limitation - bar in admission of appeal provided under the provisions of section 249(4 (a) - survey u/s133A - whether in the case of a builder net profit rate of 15 per cent applied by the learned CIT(A) for each assessment year is reasonable or not ? - HELD THAT - If an appeal is filed beyond time-limit but after payment of taxes as stipulated in section 249(4), it cannot be said that the requirements of section 249(4) are not complied with. The only defect in such appeal is that the appeal has been filed beyond prescribed time-limit. In such a case, the appellate authority must consider the assessee s request for condoning the delay in filing the appeal. If he is satisfied that the delay was attributable to reasonable and sufficient cause, the appellate authority must condone the delay and entertain the appeal. In our view, the order of the learned CIT(A) does not suffer from any legal infirmity and, therefore, we reject the grounds of appeal Nos. 1 and 2 raised by the department. Best judgment assessment - In our view, if the appellate authorities, on the fact and circumstances, conclude that the best judgment assessment made by the Assessing Officer is unreasonable or excessive, the appellate authorities can certainly set right any unjustice done to the assessee by the Assessing Officer. The Assessing Officer is entitled to make a best judgment assessment in the absence of books of account but such assessment cannot be arbitrary and must be reasonable. The assessment should not penalise the assessee because the books of account are not maintained or the same are defective. The duty of the Assessing Officer, in our view, is to make a fair and reasonable estimate of the total income of the assessee chargeable to tax as per the provisions of the Income-tax Act, 1961. Even if a best judgment assessment is made, the assessee cannot be saddled with a unjustifiable tax liability. Whether the net profit rate of 15 per cent directed by the learned CIT(A) causes any grievance to the revenue - HELD THAT - In our view, the learned CIT(A) has rightly directed that the profits of the assessee s business as a builder should be estimated by applying net profit rate of 15 per cent of the total consideration as per the sale agreements and also on the on money received by the assessee. In our view, the net profit rate of 15 per cent cannot be said to be on the lower side. It may be mentioned that even section 44AD prescribes net profit rate of 8 per cent only in the case of assessee engaged in the civil construction. In our view, the learned CIT(A) has decided the issue correctly and his order does not call for any interference. We, therefore, confirm his order for all the four assessment years. In the result, all the appeals of the revenue are dismissed.

Issues Involved:
1. Admission of appeal after the expiry of the specified period.
2. Admittance of appeal filed out of time.
3. Deletion of income determined by the Assessing Officer and direction to estimate profit at 15% of total receipts.
4. Consideration of the basis adopted by the Assessing Officer for determining the income.

Detailed Analysis:

Issue 1: Admission of Appeal After Expiry of Specified Period
The department contended that the CIT(A) erred in admitting the appeals after the expiry of the specified period, as the same appeals were previously dismissed for non-compliance with section 249(4)(a) of the Income-tax Act, 1961. The CIT(A) had initially dismissed the appeals due to non-payment of taxes on the returned income. However, after the payment of taxes, the assessee filed fresh appeals, which were admitted by the CIT(A). The Tribunal observed that the CIT(A) did not review his earlier order but entertained fresh appeals filed after the payment of taxes, which was in accordance with the provisions of law. The Tribunal concluded that the CIT(A) acted correctly in admitting the appeals after sufficient reasons for delay were provided.

Issue 2: Admittance of Appeal Filed Out of Time
The department argued that the CIT(A) had no legal jurisdiction to recall or review his earlier order and that the delay in filing the appeals was not condoned with sufficient reasons. The Tribunal noted that the CIT(A) admitted the fresh appeals filed after the payment of taxes due to financial crises faced by the assessee. It was emphasized that the requirement of section 249(4) is mandatory, and the appeal should not be admitted unless the taxes due on the returned income are paid. The Tribunal found that the CIT(A) acted within his powers to condone the delay and admit the appeals, as the requirement of section 249(4) was fulfilled at the time of filing the fresh appeals.

Issue 3: Deletion of Income Determined by the Assessing Officer
The department challenged the CIT(A)'s decision to delete the income determined by the Assessing Officer and instead direct the estimation of profit at 15% of total receipts, including on money receipts. The Tribunal examined the facts and found that the assessee, a builder developer, did not maintain regular books of account, and the financial statements were not supported by any books of account. The Assessing Officer used the value of work-in-progress and other information gathered during the survey to determine the income. However, the CIT(A) concluded that the method adopted by the Assessing Officer was incorrect and that a net profit rate of 15% should be applied. The Tribunal upheld the CIT(A)'s decision, stating that the net profit rate of 15% was reasonable and that the CIT(A) had properly considered all facts and circumstances.

Issue 4: Basis Adopted by the Assessing Officer for Determining Income
The department justified the Assessing Officer's action based on the decision of the Hon'ble Supreme Court in the case of P.M. Mohd. Meera Khan v. CIT. The Tribunal noted that the Supreme Court's decision was not directly relevant to the present case, as it dealt with the nature of the transaction being an adventure in the nature of trade. The Tribunal emphasized that the CIT(A) had correctly directed the estimation of profit at 15% of total receipts, considering the incomplete records and the nature of the business. The Tribunal rejected the department's grounds, stating that the CIT(A)'s order did not suffer from any legal infirmity and was in accordance with the provisions of law.

Conclusion:
The Tribunal dismissed all the appeals of the revenue, confirming the CIT(A)'s order for all four assessment years. The CIT(A) acted within his powers to admit the appeals after the payment of taxes and correctly estimated the net profit at 15% of total receipts, including on money receipts. The Tribunal found no legal infirmity in the CIT(A)'s order and upheld it as reasonable and justifiable.

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