2013 (8) TMI 1023 - AT - Income Tax

Rejection of books of accounts - Held that - AO has accepted the wages upto the month of February, 2009 and it is only with respect to the wages for the month of March, 2009 he had a doubt but at the same time as per findings of the ld. CIT(A) and the AO these wages have been paid up to July, 2009 i.e. in the following year. In the absence of any wages paid or payable during the year to be bogus, the AO was not justified in rejecting the books of account. Non maintenance of stock register with regard to the sand, soil, bajri, cement, crusher etc. - Held that - In the absence of proper record maintained or in the absence of calculation of consumption presented before the authorities below or before us of such material, books of account cannot be treated as complete and accurate and therefore, we find no infirmity in the order of the ld. CIT(A), who has rightly invoked the provisions of section 145(3) of the Act. Estimation of income - Held that - The assessee has declared Net Profit rate of 4.42% on the gross receipts of ₹ 23,09,62,133/- and to cover up possible leakage, we estimate Net Profit rate at 5% of the gross receipts as mentioned hereinabove and direct the A.O. to allow depreciation as per law subject to the income does not go down below the returned income. We order accordingly.

Issues Involved:
1. Rejection of books of account by invoking Section 145(3).
2. Application of net profit rate on gross contract receipts/turnover.
3. Disallowance of depreciation and other deductions.
4. Validity and accuracy of wages and stock registers.
5. Applicability of the decision in Shivam Construction Co. vs. CIT.

Detailed Analysis:

1. Rejection of Books of Account by Invoking Section 145(3):
The primary issue was whether the AO was justified in rejecting the books of account under Section 145(3). The AO pointed out several alleged defects, including discrepancies in wages, non-maintenance of site-wise muster rolls, and lack of proper stock registers for materials like sand, soil, and cement. The CIT(A) upheld the AO's decision, noting that the books of account were not accurate and complete due to these deficiencies. The Tribunal, however, found that while some of the AO's concerns were valid, the rejection of the books solely based on these issues was not entirely justified. Specifically, the Tribunal noted that the wages to receipt ratio was consistent with previous years and that the non-maintenance of stock registers, while a concern, did not alone warrant rejection of the books.

2. Application of Net Profit Rate on Gross Contract Receipts/Turnover:
The AO applied a net profit rate of 10% on the gross contract receipts, relying on the decision in Shivam Construction Co. vs. CIT. The CIT(A) reduced this rate to 8%. The Tribunal further reduced the net profit rate to 5%, considering the specific facts and circumstances of the case, including the consistency of the wages to receipt ratio with previous years and the genuine nature of the purchases. The Tribunal emphasized that the estimation of income should be based on the facts of the current year rather than solely relying on past results or comparable cases.

3. Disallowance of Depreciation and Other Deductions:
The CIT(A) disallowed the claim of depreciation amounting to Rs. 33,43,247/- and other deductions from the gross contract receipts, including the value of materials supplied by contractees, VAT/Sales Tax, and Labour Cess. The Tribunal directed the AO to allow depreciation as per law, subject to the condition that the income does not fall below the returned income. This decision was based on the principle that depreciation is a legitimate business expense and should be allowed if the books of account are not entirely rejected.

4. Validity and Accuracy of Wages and Stock Registers:
The AO raised concerns about the validity of wages, noting that verification letters sent to some laborers were not delivered, and some muster rolls were incomplete. The Tribunal found that the explanation provided by the assessee regarding the use of Headmen to collect wages on behalf of laborers was plausible. Additionally, the Tribunal noted that the wages to receipt ratio was consistent with previous years, which supported the genuineness of the wages. Regarding the stock registers, the Tribunal acknowledged that the non-maintenance of detailed stock registers for materials was a concern but did not alone justify the rejection of the books. Instead, it warranted a reasonable estimation of income to cover potential discrepancies.

5. Applicability of the Decision in Shivam Construction Co. vs. CIT:
The AO and CIT(A) relied heavily on the decision in Shivam Construction Co. vs. CIT to justify the rejection of books and the application of a higher net profit rate. The Tribunal found that the facts of the present case were distinguishable from Shivam Construction Co. The Tribunal noted that the AO had not provided a copy of the Shivam Construction Co. decision to the assessee, and the nature of the civil contracts in that case was not comparable to the present case. Therefore, the Tribunal concluded that the reliance on Shivam Construction Co. was misplaced, and a lower net profit rate of 5% was more appropriate given the specific circumstances of the case.

Conclusion:
The Tribunal partly allowed the assessee's appeal by reducing the net profit rate to 5% and directing the AO to allow depreciation. The Revenue's appeal was dismissed. The Tribunal emphasized the importance of considering the specific facts and circumstances of the current year rather than relying solely on past results or comparable cases. The decision balanced the need for accurate and complete books of account with the practical realities of the assessee's business operations.

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