2018 (3) TMI 1706 - AT - Income Tax

Rejection of books of accounts - Net profit determination - addition on account of depreciation (u/s. 32(1)) and interest (u/s. 36(iii)) - Held that - A difficult terrain may not necessarily imply a lower profit. Rather economic theory would suggest the profit to match the risk involved so that a higher risk would entail a higher rate of profit. Further again the assessee as the person undertaking the work would both in theory and in practice be entitled to a larger share of the profit i.e. even if the same is to be considered as in the range of 7% to 8%. Considering these facts we modify the estimation of the assessee s net profit rate to even as conceded to by the ld. AR the assessee s counsel during hearing 5% of the turnover. The disallowance on account of depreciation (u/s. 32(1)) and interest (u/s. 36(iii)) shall not survive in view of the estimation of the net profit rate. Addition u/s 68 qua a secured loan/s - Held that - Though the same could be made in principal and we do not agree with the ld. CIT(A) that the same could not be in view of the assessee s profit rate being estimated (CIT v. Devi Prasad Vishwanath Prasad 1968 (8) TMI 5 - SUPREME COURT we find no basis for the said addition in the facts and circumstances of the case. True the burden of proof u/s. 68 is on the assessee which has not furnished any material in the assessment proceedings. However it is not clear if the AO had in any of the notices u/s. 142(1) required the assessee to support its claim qua the said loan with any material/ evidence. This does not appear to be the case as there is no reference thereto by him either in the assessment order or in the remand report. The addition under the circumstances could only be on the basis of some adverse material brought on record by the Assessing Officer. The addition in fact has not even been impugned by the Revenue.

Summary

Issues:
- Assessment u/s. 144 of the Income Tax Act, 1961 for Assessment Year 2009-10
- Modification of net profit rate by the Commissioner of Income Tax (Appeals)
- Addition u/s. 68 regarding a secured loan

Analysis:
1. Assessment u/s. 144:
The case involved an assessment u/s. 144 of the Income Tax Act due to the assessee's continuous non-compliance with notices. The Assessing Officer (AO) framed the assessment after the assessee failed to respond to various notices. The AO assessed the profit rate at 10%, disallowing certain expenses. In the first appeal, the Commissioner of Income Tax (Appeals) directed a remand report from the AO. The AO's findings were reiterated, but the CIT(A) felt the AO should have examined the books of account. The CIT(A) reduced the profit rate to 3.5%, considering the assessee as a sub-contractor, and disallowed other additions as the net profit rate was estimated.

2. Modification of Net Profit Rate:
The main issue was whether the CIT(A) had the authority to modify the net profit rate assessed by the AO. The Tribunal noted that the CIT(A) did not challenge the invocation of section 144 by the AO. The CIT(A) modified the net profit rate based on a decision by the Amritsar Bench of the Tribunal and considered the assessee as a sub-contractor. The Tribunal disagreed with this approach, stating that a difficult terrain does not necessarily imply a lower profit. They modified the net profit rate to 5% of the turnover, considering the risk involved. The disallowance on account of depreciation and interest was removed due to the revised profit rate.

3. Addition u/s. 68 - Secured Loan:
Regarding the addition u/s. 68 related to a secured loan, the Tribunal found no basis for the addition in the facts and circumstances of the case. While the burden of proof under section 68 lies with the assessee, there was no evidence to suggest the AO had requested the assessee to support the loan claim. The Tribunal concluded that the addition could only be based on adverse material brought on record by the AO, which was not the case here. The addition was not challenged by the Revenue, and thus, the Tribunal decided in favor of the assessee.

In conclusion, the Tribunal partly allowed the Revenue's appeal, modifying the net profit rate and removing the disallowances on depreciation and interest. The addition related to the secured loan under section 68 was also not sustained due to lack of supporting evidence.