2009 (10) TMI 593 - AT - Income Tax

Rejection of books of accounts and estimation of income - Disallowance - the assessee is carrying on three kinds of contracts, as in earlier years, i.e.. (i) own contracts, (ii) contracts taken from the sub-contractors, (iii) contracts given to other parties on sub-contracts - In the present case, the AO rejected the books of account on the reason that, the assessee has not maintained proper books of account and also failed to produced vouchers for verification and the expenditure claimed by the assessee are not substantiated - The AO after rejecting the books of account made a reasonable estimate of the income at a reasonable percentage of gross receipts at 10 per cent - The assessee had a higher rate of profit on the contracts executed by the assessee itself - Thus, accordingly the AO is directed to estimate the income on the contracts executed by the assessees own at 9 per cent - Accordingly, this ground of the assessee appeal is partly allowed Once the AO has observed that books of account are not reliable, how the same books can be relied for other purpose for invoking other provisions of the Act - The AO rejected the claim on the ground that according to s. 194C stipulates that the person making payment to a contractor or at the time of credit to the account has to deduct tax at source - If amount is actually paid and tax is not deducted under the above section, s. 40(a)(ia) is not applicable - in the case of Indwell Construction vs. CIT(1999) 151 CTR (AP) 207 (1998 -TMI - 17056 - ANDHRA PRADESH High Court) it has been clearly held that where the books of account have been rejected, the Revenue cannot rely on the same books of account for addition of an exact amount of expenditure in the P&L a/c Decided in the favour of the assessee

Summary

Issues Involved:
1. Rejection of Books of Account and Estimation of Income
2. Applicability of Section 194C and Section 40(a)(ia)
3. Charging of Interest under Section 234B

Detailed Analysis:

1. Rejection of Books of Account and Estimation of Income:
The primary issue was the rejection of the books of account by the Assessing Officer (AO) and the subsequent estimation of income. The AO rejected the books on the grounds of improper maintenance and lack of supporting vouchers and bills, making it impossible to deduce true profits or losses. The AO estimated the income at 10% of the gross receipts. However, the Commissioner of Income Tax (Appeals) [CIT(A)] reduced this to 9%. The tribunal directed the AO to estimate the income at different rates for different types of contracts: 9% for contracts executed by the firm itself, 8% for contracts taken on sub-contract, and 4% for contracts given to third parties on sub-contract. The tribunal also directed that depreciation, remuneration, and interest to partners should be allowed on the profit estimated by the AO.

2. Applicability of Section 194C and Section 40(a)(ia):
The AO disallowed payments made to sub-contractors without deducting TDS under Section 40(a)(ia). The tribunal noted that once the books of account are rejected and income is estimated, no further additions can be made based on the same books. The tribunal cited the case of Indwell Constructions vs. CIT, where it was held that no separate addition under Section 40 can be made when the books are rejected. The tribunal also noted that Section 40(a)(ia) applies only to amounts payable and not to amounts already paid. The tribunal found that the AO's reliance on the same rejected books to invoke Section 40(a)(ia) was improper and amounted to punishing the assessee twice for the same offence.

3. Charging of Interest under Section 234B:
The assessee also contested the charging of interest under Section 234B. However, this issue was not elaborated upon in the judgment, and the tribunal's decision on this matter was not explicitly stated.

Conclusion:
The tribunal partly allowed the appeal, directing the AO to recompute the income based on different rates for different types of contracts and to allow depreciation, remuneration, and interest to partners. The tribunal also deleted the disallowance under Section 40(a)(ia), emphasizing that no further additions can be made once the books are rejected and income is estimated. The tribunal upheld the principle that the estimation of income takes care of all irregularities, and any further disallowance would amount to double jeopardy.