2012 (8) TMI 229 - AT - Income Tax

Rejection of books of accounts - assessee has not been submitting the daily report to the Market Committee which were required to be submitted as per agreement with the Market Committee - AO accordingly, rejected the books of account by invoking the provisions of section1 145(3) of the Act As regards the employment of 34 persons - no material in the possession of the AO to support the factum of employment of 34 alleged employees by the assessee - no work done by them. There was no question of any payment of any salary to them for any alleged work in the contract business. No collection of market fee or RDF has been brought on record by the AO AO not justified in rejecting books of accounts of the assessee As regards the commission income - assessee was not required to maintain books of account in respect of collection of Market fee and RDF and since the payments are collected in the name of Market Committee, they are deposited with the Market Committee only. All the details for the collections which were tallied weekly were available with the AO Held that - Collections made from commission agents till the amount of the contract entered is not the income of the assessee and, therefore, the assessee is not required to maintain books of account with regard to income of other persons. Therefore, the books of account to that extent cannot be rejected by the A.O - no estimation of income can be made Assessment under section 144 of the Act Held that - AO is not justified in making any addition to the income of the assessee, even if the books of account are rejected u/s 145(3) of the Act, on the basis of the material on record, which was available before the AO as well as before the ld. CIT(A). The Ld. CIT(A) is not justified in sustaining the addition on this account. Penalty under section 271(1)(c) of the Act - on concealing the income and furnishing inaccurate particulars of income Held that - When no addition remains in pursuance of order mentioned hereinabove, no penalty u/s 271(1)(c) can be sustained - no infirmity in the order of the ld. CIT(A), who has rightly deleted the addition

Issues Involved:
1. Legality of the assessment framed.
2. Application of Section 145(3) of the Income-tax Act.
3. Estimation of income from contract business.
4. Rejection of books of account and estimation of income.
5. Deletion of disallowance under Section 40(a)(ia) of the Income-tax Act.
6. Deletion of penalty under Section 271(1)(c) of the Income-tax Act.

Detailed Analysis:

1. Legality of the Assessment Framed:
The assessee contended that the assessment framed was against the law and facts of the case, deeming it illegal, unjustified, and uncalled for. However, the tribunal did not find any specific ruling on this issue, indicating that it was not a primary focus of the judgment.

2. Application of Section 145(3) of the Income-tax Act:
The assessee argued that the provisions of Section 145(3) were applied erroneously by the ITO and CIT(A) without offering a mandatory opportunity. The tribunal upheld the application of Section 145(3) by the CIT(A), agreeing that the assessee failed to maintain proper books of account for the collection of Market Fee and RDF, which justified the rejection of the books of account.

3. Estimation of Income from Contract Business:
The AO estimated the income from the contract business at Rs. 2,45,500/- by applying a net profit rate of 5% of the total contract amount. The CIT(A) reduced this rate to 2%, computing the income accordingly. The tribunal found that the AO should have based the assessment on material evidence rather than arbitrary estimation. The tribunal ruled that no addition was called for even if the books of account were rejected under Section 145(3), given the material on record.

4. Rejection of Books of Account and Estimation of Income:
The AO rejected the books of account on the grounds that the assessee did not maintain records of collections and expenses and allegedly employed 34 persons without recording their salaries. The tribunal agreed with the rejection of books of account but emphasized that any addition must be based on definite and specific materials. The tribunal concluded that the AO had sufficient material to assess the income as returned by the assessee, thus no addition was justified.

5. Deletion of Disallowance under Section 40(a)(ia) of the Income-tax Act:
The CIT(A) allowed the claim of interest of Rs. 12,83,967/- after admitting additional evidence and considering the assessee's submissions. The tribunal found no infirmity in this order, agreeing that the CIT(A)'s decision was reasoned and justified.

6. Deletion of Penalty under Section 271(1)(c) of the Income-tax Act:
The AO had levied a penalty of Rs. 27,73,000/- under Section 271(1)(c) for concealing income and furnishing inaccurate particulars. Since the tribunal deleted the addition made by the AO, it ruled that no penalty under Section 271(1)(c) could be sustained. The tribunal found no infirmity in the CIT(A)'s order deleting the penalty.

Conclusion:
The appeal of the assessee in ITA No. 204(Asr)/2010 was partly allowed, and the appeals of the Revenue in ITA No. 231(Asr)/2010 and ITA No. 526(Asr)/2010 were dismissed. The tribunal emphasized the need for assessments to be based on definite and specific materials rather than arbitrary estimations.

← Previous Next →