2012 (8) TMI 797 - AT - Income Tax

Estimation of profit at 10%, based on the statement recorded during course of survey after considering the incriminating documents found at assessee s business premises - books of accounts rejected in view of the admission of assessee of estimation of profit - subsequent retraction of statement - Held that - During the survey operations, on the basis of incriminating documents the appellant himself admitted that the accounts of contract business were maintained in a rough manner. Appellant also admitted illegal payments. Assessee had not only accepted 10% net profit but also computed profit thereon and surrendered income and also agreed to pay tax thereon. Therefore, keeping in view such glaring defects in the books of account and the statement of the appellant during the course of survey A.O. has rightly applied provisions of section 145(3). When the profit is accepted by the assessee at 10 %, all the expenditure/deductions allowable under the provisions of Section 30 to 38 are deemed to be allowed. Accordingly, we confirm the action of the lower authorities for dis-allowance of claim of depreciation. It is not merely question of rejection of books of account, but the issue of application of 10% profit rate as accepted by the assessee himself is based on the incriminating documents found during survey and the non-maintenance of basic records to indicate true and correct profit, therefore, plea of the assessee to the effect that the rate of profit decided by the AO in cases of other civil contractors should be applied, is of no substance where facts are materially different - Decided against assessee

Summary

Issues:
Estimation of net profit at 10% based on incriminating documents found during survey, Retraction of statement recorded during survey, Applicability of Section 145(3) of IT Act, Disallowance of claim of depreciation, Comparison with assessment order of other assessee.

Estimation of Net Profit at 10%:
The appellant, engaged in civil contract business, filed a return showing income of Rs. 58,34,290/- initially, later revised to Rs. 95,47,610/-. During a survey, incriminating documents were found, and the appellant admitted to discrepancies in books of account, accepting 10% net profit for the assessment year 2007-08. The Assessing Officer rejected the books of account and estimated net profit at 10%. The CIT(A) upheld this decision, leading to the appellant's appeal. The appellant argued that the statement recorded during the survey was retracted, citing coercion, and questioned the evidentiary value of such statements. However, the CIT DR supported the estimation of profit at 10% based on the statement and incriminating documents.

Retraction of Statement Recorded During Survey:
The appellant retracted the statement recorded during the survey, claiming it was made under duress. The authorized representative argued that the statement lacks evidentiary value and should not be solely relied upon for estimating profit. However, the CIT(A) analyzed the appellant's statement in detail, concluding that the retraction was an afterthought to avoid tax consequences. The statement was found to be systematic, supported by incriminating documents, and signed by the appellant, indicating conscious submission.

Applicability of Section 145(3) of IT Act:
The CIT(A) examined the applicability of Section 145(3) concerning the correctness and completeness of the appellant's accounts. The survey revealed significant irregularities, including the maintenance of rough accounts, absence of proper records, and admission of illegal payments. These defects led to the conclusion that the books of account were unreliable, justifying the application of Section 145(3) to estimate net profit at 10%.

Disallowance of Claim of Depreciation:
The appellant's acceptance of 10% net profit, surrendering additional income, and agreeing to pay tax indicated a comprehensive acknowledgment of the profit rate. Consequently, the lower authorities correctly disallowed the claim of depreciation, as all deductions allowable under Sections 30 to 38 are deemed to be included when the profit rate is accepted at 10%.

Comparison with Assessment Order of Other Assessee:
The appellant's plea to apply a lower net profit rate based on assessment orders of other civil contractors was dismissed. The difference lay in the incriminating documents found during the survey, necessitating the 10% profit rate. Comparisons with regular assessment cases were deemed irrelevant, as the unique circumstances of the present case justified the estimation of profit at 10%.

In conclusion, the appeal was dismissed, affirming the estimation of net profit at 10% based on the incriminating documents and the appellant's admission, while also upholding the disallowance of depreciation claim and rejecting the comparison with assessment orders of other assesses due to differing factual contexts.