2010 (12) TMI 1230 - HC - Income Tax

Summary

Issues Involved:
1. Justification of Tribunal in withdrawing the statutory claim u/s 32 while computing income u/s 29.
2. Assessment of income and additions made by the Assessing Officer.
3. Application of net profit rate and entitlement to depreciation.

Summary:

1. Justification of Tribunal in withdrawing the statutory claim u/s 32 while computing income u/s 29:
The High Court addressed whether the Tribunal was justified in withdrawing the statutory claim u/s 32 while computing the chargeability of income u/s 29, especially when there was no dispute arising out of the assessment order and no ground of appeal by the respondent. The Tribunal concluded that no further deduction on account of depreciation would be justified as it had been taken care of while applying the net profit rate. The Tribunal observed that allowing separate depreciation would give the assessee an additional allowance, which was not permissible under Section 44AD.

2. Assessment of income and additions made by the Assessing Officer:
The assessee, a partnership firm engaged in construction, filed its return of income, which was processed and later scrutinized. The Assessing Officer made additions of Rs. 39,74,129/- for purchases and Rs. 26,99,959/- for expenses deemed not wholly and exclusively for business purposes. The assessment was completed at Rs. 69,04,910/-, creating a demand of Rs. 25,69,525/- and charging interest u/s 234B. The CIT(A) partly allowed the appeal, upholding the assessment u/s 144 but not the additions. The Tribunal, on further appeal, directed the Assessing Officer to recompute the income afresh.

3. Application of net profit rate and entitlement to depreciation:
The Tribunal noted that for contractors with gross receipts exceeding Rs. 40 lacs, maintaining books of account is obligatory u/s 44AA, and the net profit rate of 8% u/s 44AD is not applicable. The assessee failed to produce books of account, leading to the rejection of book results and estimation of profits. The Tribunal applied a net profit rate of 10%, referencing the Supreme Court decision in Brij Bhushan Lal Parduman Kumar v. CIT, and concluded that no further deduction on account of depreciation was justified as it was deemed allowed in the net profit rate.

Conclusion:
The High Court found no merit in the assessee's submission and upheld the Tribunal's decision. The substantial question of law was answered against the assessee, and the appeal was dismissed.