2013 (11) TMI 1366 - AT - Income Tax

Rejection of books of accounts A.O. rejected the books of accounts only because of non maintenance of measurement book - prescribed books of accounts as per Rule 6F of Income-tax Rules Held that - Books of accounts were rejected as it was found to be very difficult to ascertain the consumption of various raw material as shown in the books of accounts in absence of a measurement book - DVO has not completely relied upon the books of accounts. Had it been the case then the DVO would have accepted the cost of construction declared by the assessee before him at Rs.6,59,57,184/- and would not have determined it at Rs.7,48,58,300/- - In the circumstances, it cannot be said that the rejection of books of accounts was not valid Decided against the Assessee. Deduction, when there is variance between CPWD and State PWD rate Held that - CIT(A) was justified in upholding plinth area basis for determining cost of construction over the CPWD rates and further reduction of 10% on account of personal supervision. - No force in department s submission that the object of determining that rate of 10% for personal supervision was given only because, the assessee in that case himself was an engineer. The assessee is entitled for deduction of 15% on account of rate variation between CPWD and State PWD and 10% towards self supervision. If the aforesaid deductions are allowed, then the cost of construction shown by the assessee at Rs.6,59,57,184/- would be more than the cost of construction determined by the DVO and there will be no case for addition on account of excess cost of expenditure incurred by the assessee Decided in favor of Assessee.

Summary

Issues Involved:
1. Rejection of Books of Accounts
2. Estimation of Cost of Construction
3. Allowance for Self Supervision and Rate Variance between CPWD and State PWD Rates
4. Imposition of Penalty under Section 271(1)(c) of the Income Tax Act

Issue-wise Detailed Analysis:

1. Rejection of Books of Accounts:
The assessee, a private limited company, filed returns declaring 'nil' income, stating no commercial activities had commenced. The Assessing Officer (AO) rejected the books of accounts due to the absence of a measurement book, which made it difficult to ascertain the consumption of raw materials. The AO concluded that the books could not be relied upon and referred the matter to the Departmental Valuation Officer (DVO). The assessee contended that the books were maintained regularly and subjected to statutory audit without any qualification from the auditor. The CIT (A) upheld the AO's rejection, noting the lack of a measurement book and discrepancies in the quantities of materials like steel and cement. The Tribunal agreed with the rejection, stating that the non-maintenance of a measurement book justified the AO's decision.

2. Estimation of Cost of Construction:
The DVO estimated the cost of construction at Rs.7,48,58,300/- against Rs.6,59,57,184/- declared by the assessee. The DVO used the accounts method but also applied standard coefficients from the Central Building Research Institute (CBRI) for certain materials. The assessee objected, arguing that the DVO did not consider loading, unloading, and transport charges, and did not allow a rebate for personal supervision. The CIT (A) upheld the DVO's estimation, noting the discrepancies in the quantities of materials recorded in the books. The Tribunal found that the DVO's partial reliance on the books and partial use of coefficients was contradictory. It held that the DVO should have allowed deductions for self-supervision and rate variance between CPWD and State PWD rates.

3. Allowance for Self Supervision and Rate Variance between CPWD and State PWD Rates:
The assessee argued for deductions on account of self-supervision and rate variance between CPWD and State PWD rates. The Tribunal referred to previous decisions, noting that CPWD rates are generally higher and not always reflective of local conditions. It allowed a 15% deduction for rate variance and a 10% deduction for self-supervision. This brought the cost of construction in line with the assessee's declared amount, leading to the deletion of the addition of Rs.13,99,255/-.

4. Imposition of Penalty under Section 271(1)(c) of the Income Tax Act:
The penalty was imposed based on the additions made due to the difference in the cost of construction. Since the Tribunal deleted the additions, the basis for the penalty no longer existed. Consequently, the Tribunal also deleted the penalties imposed under Section 271(1)(c) for the relevant assessment years.

Conclusion:
The appeals related to the rejection of books of accounts and the estimation of the cost of construction were partly allowed. The Tribunal upheld the rejection of books but directed the deletion of the addition after allowing deductions for self-supervision and rate variance. The appeals against the imposition of penalties were allowed, as the basis for the penalties was removed.