2014 (10) TMI 487 - AT - Income Tax

Reduction of net profits from 12% to 5.5% - Failure to produce books of accounts, bills and vouchers - Held that - The assessee did not produce the bills and vouchers for verification before the AO - there was no other option except to estimate the income, however the estimate by applying the net profit rate of 12% by the AO was without any basis and even the past history of the case was not considered - CIT(A) considered the past history of the assessee and applied the net profit rate of 5.5% - the net profit rate applied by the CIT(A) by considering the net profit rate declared by the assessee and accepted by the various authorities for the last five assessment years i.e. A.Y. 2004-05 to 2008-09 was fair and reasonable the order of the CIT(A) is upheld Decided against revenue. Salary and interest paid to partners disallowed Held that - There was no change in the partnership deed - The provisions contained in section 184 of the Act requires that a certified copy of the partnership deed is to be furnished along with return if there is change in the partnership deed or it was the first return of income of the partnership firm - it was not the first year of the partnership firm and there was no change in the partnership - The AO also had not established how and in what manner, the assessee failed to comply with the provisions of section 184 of the Act thus, the AO was not justified in making the disallowance and the CIT(A) rightly deleted the same the order of the CIT(A) is upheld Decided against revenue.

Summary

Issues Involved:
1. Reduction of net profit rate from 12% to 5.5% for the A.Y. 2008-09.
2. Deletion of addition made by applying a net profit rate of 6% as against 4.06% declared by the assessee for the A.Y. 2007-08.
3. Deletion of disallowance of salary and interest paid to partners for the A.Y. 2007-08.

Issue 1: Reduction of Net Profit Rate from 12% to 5.5% for the A.Y. 2008-09

The assessee, engaged in civil construction, filed a return declaring a total income of Rs. 29,23,781. The Assessing Officer (AO) rejected the books of accounts due to non-production of bills and vouchers and estimated a net profit rate of 12%. The assessee appealed, arguing that the AO did not consider the net profit rates of earlier years, which ranged from 4% to 6%. The CIT(A) directed the AO to apply a net profit rate of 5.5%, considering the past history and the increasing trend in the net profit rate. The Tribunal upheld the CIT(A)'s decision, noting that the AO's estimate lacked basis and did not consider the past history of the case.

Issue 2: Deletion of Addition Made by Applying a Net Profit Rate of 6% as Against 4.06% Declared by the Assessee for the A.Y. 2007-08

The AO applied a net profit rate of 6% instead of 4.06% declared by the assessee. The CIT(A) allowed relief by following the ITAT's decision in the assessee's own case for the A.Y. 2003-04, where a net profit rate of 4% was confirmed. The Tribunal found no merit in the department's appeal, noting that the net profit rate declared by the assessee was better than in earlier years and the AO had no basis for estimating a 6% rate.

Issue 3: Deletion of Disallowance of Salary and Interest Paid to Partners for the A.Y. 2007-08

The AO disallowed Rs. 5,22,629 on account of salary and interest paid to partners, invoking section 185 of the Act. The CIT(A) deleted the disallowance, stating that the provisions of section 185 were not applicable as there was no change in the partnership deed and it was not the first return of the partnership firm. The Tribunal upheld the CIT(A)'s decision, noting that the AO did not establish how the assessee failed to comply with section 184.

Conclusion:

The Tribunal dismissed both appeals by the department, upholding the CIT(A)'s decisions on all issues. The net profit rate of 5.5% for the A.Y. 2008-09 and 4.06% for the A.Y. 2007-08 were deemed fair and reasonable, and the disallowance of salary and interest to partners was rightly deleted.