2011 (9) TMI 666 - AT - Income Tax

Reference to Dispute Resolution Panel Assessee, being a foreign company - DRP enhanced the assessment to impute profit on estimated basis which was not a variation proposed in the draft order passed by the ADIT u/s 144C(1) dis-allowance of provision for foreseeable losses non-quantification of additional depreciation on fixed assets, arising on account of capitalization of the foreign exchange fluctuation to the cost of the asset - Held that - It is clear that in the proposed draft order vide objection No. 2, the variation proposed was only with reference to dis-allowance of future losses claimed whereas the DRP suo moto considered 20% of the total contract as completed during the year (which is in fact was not correct as assessee has offered more turnover in its books of account) and proposed bringing to tax the net profit at 8% of the above determined turnover. This direction of the DRP is wholly without jurisdiction and is not in conformity with the powers under section 144C(5) r.w.s. 144C(8). DRP can issue directions only in respect of the objections raised by the taxpayer and the objections are to be in terms of variation proposed in the draft order. In respect of provision for future losses it is held that there are evidence on record that assessee has suffered loss and loss claimed in that year on completion of the project stood allowed. Thereby, the assessee s claim for provision for loss, which was made in accordance with the guidelines of AS-7 and duly debited in the audited accounts of the company is an allowable expenditure. Further, in respect of additional depreciation A.O. is directed to examine this and allow depreciation as per law on the amount capitalized to assets and rework out depreciation accordingly.- Decided in favor of assessee.

Issues Involved:

1. Enhancement of assessment by the DRP.
2. Estimation of revenue and profit margin by the ADIT.
3. Calculation of work-in-progress and profit margin.
4. Disallowance of provision for foreseeable losses.
5. Additional depreciation on fixed assets due to foreign exchange fluctuation.

Issue-Wise Detailed Analysis:

1. Enhancement of Assessment by the DRP:

The assessee contested the DRP's direction to enhance the assessment by imputing a profit of Rs.1,05,03,587 on an estimated basis, which was not proposed in the draft order by the ADIT. The Tribunal found that the DRP's direction to tax 20% of the gross contract receipt at 8% was at variance with the draft order, which only proposed the disallowance of future losses. The Tribunal upheld the assessee's ground that the DRP's direction was without jurisdiction and not in conformity with the powers under section 144C(5) r.w.s. 144C(8).

2. Estimation of Revenue and Profit Margin by the ADIT:

The ADIT estimated 20% of the total contract price as revenue for the year and applied an ad hoc rate of 8% as profit margin, resulting in a net profit of Rs.1,05,03,587. The Tribunal noted that the DRP's direction to estimate profit at 8% on 20% of the contract price was not before the ADIT in the draft order. The ADIT's draft order proposed disallowances and additions resulting in a total income of Rs.15,03,78,290, which did not include the estimation of profit on the percentage completion method. The Tribunal found that the DRP's direction was at variance with the draft order and invalid.

3. Calculation of Work-in-Progress and Profit Margin:

The DRP directed the ADIT to consider 20% of the contract as completed and estimate a profit margin of 8%, taxing a net profit of Rs.1,05,03,587. The Tribunal observed that the assessee had already shown revenue receipts (work-in-progress) at Rs.19,83,63,908, which was more than the contract receipts determined by the DRP at Rs.13,12,94,847. The Tribunal found that the DRP's determination of receipts and estimation of profit was without any basis and not an issue before the ADIT in the draft order.

4. Disallowance of Provision for Foreseeable Losses:

The ADIT disallowed the provision for foreseeable losses amounting to Rs.32,86,17,293, considering it a contingent liability. The Tribunal noted that the assessee followed Accounting Standard AS-7, which mandates recognizing expected losses immediately when total contract costs exceed total contract revenue. The Tribunal found that the assessee provided detailed explanations and justifications for the estimated future losses, which were also verified in the subsequent year. The Tribunal allowed the provision for foreseeable losses as an allowable expenditure, directing the ADIT to allow the claim and make necessary adjustments in the subsequent year.

5. Additional Depreciation on Fixed Assets Due to Foreign Exchange Fluctuation:

The DRP directed the capitalization of foreign exchange loss to the cost of assets, but the corresponding depreciation was not allowed in the final order. The Tribunal directed the ADIT to examine and allow depreciation as per law on the capitalized amount and rework the depreciation accordingly.

Conclusion:

The Tribunal allowed the appeal in favor of the assessee, finding that the DRP's directions were without jurisdiction and not in conformity with the proposed draft order. The Tribunal upheld the assessee's grounds, allowing the provision for foreseeable losses and directing the ADIT to allow additional depreciation on the capitalized foreign exchange loss.

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