2016 (2) TMI 1237 - AT - Income Tax

Rectification u/s 154 - netting of interest income against interest payment - assessment was completed u/s 143(3) and books of account were rejected by the AO and a flat rate of 8% of total receipts as net profit was applied - HELD THAT - We find that the assessment in this case was completed by applying net profit rate of 8% of the gross receipts and the books of account were rejected during the assessment proceedings and, therefore, the same books of account cannot be relied upon for carrying out mistake u/s 154 of the Act. Once the books of account has been rejected, the AO cannot fall back upon the same books for making addition on the interest accrued on the FDRs reflected in the books of account. Once the books of account were rejected, no separate addition on account of interest earned on FDRs, which was made for business purposes was maintainable, therefore, we are in agreement with arguments of the ld. AR. Moreover, we find that for invoking the provisions of section 154 the mistake has to be apparent from the record and rectification is not possible if the question is debatable. This has been held by the Hon ble Supreme Court, in the case of CIT vs. Hero Cycles Pvt. Limited, 1997 (8) TMI 6 - SUPREME COURT . Also further held that for invoking the provisions of section 154, the point should have been examined on facts and in law. The Hon ble Kerala High Court in the case of Satish Chandra vs. CIT 1998 (7) TMI 73 - KARNATAKA HIGH COURT has held that where the point is debatable, rectification was not valid. Depreciation and interest as allowable deduction from deductions from the net profits - total income is calculated by applying net profit rate - HELD THAT - The matter is no longer res integra. The Division Benches of this Court in Commissioner of Income Tax vs. Chopra Bros. India (P) Limited 2001 (9) TMI 90 - PUNJAB AND HARYANA HIGH COURT and Girdhari Lal vs. Commissioner of Income Tax 2001 (9) TMI 28 - PUNJAB AND HARYANA HIGH COURT while considering the aforesaid issue, in view of the circular issued by the Board, had held in a case where the assessee makes a specific claim for depreciation and gives the information as required under section 32 of the Act, the assessing officer is bound to take the claim of the assessee into consideration. Following the aforesaid judgments, it is held that the assessee is entitled to deduction on account of depreciation from receipts while applying net profit rate on the gross receipts Allowability of salary and interest to the partners - Allow payment of salary and interest out of the estimated income subject to the condition that the income thus, arrived at should not fall below the returned income.

Summary

Issues Involved:
1. Validity of proceedings under section 154 of the Income Tax Act.
2. Netting of interest income against interest payment.
3. Allowability of depreciation on fixed assets after applying net profit rate.
4. Allowability of salary and interest paid to partners after applying net profit rate.

Issue-wise Detailed Analysis:

1. Validity of Proceedings under Section 154:
The assessee contended that the proceedings under section 154 were incorrectly initiated by the Assessing Officer (AO). The Tribunal noted that the assessment was completed by rejecting the books of account and applying a net profit rate of 8% on gross receipts. The AO later identified that an interest income of Rs. 4,02,038 had escaped regular assessment due to netting of interest paid and received. The AO rectified this under section 154, treating the interest earned on fixed deposits as income from other sources under section 56, not adjustable against business loan interest. The Tribunal found that once the books of account were rejected, the AO could not rely on the same books for making additions under section 154, as established in the case of Daljit Singh & Bros. vs. ACIT. The Tribunal concluded that the rectification under section 154 was not valid as the mistake was not apparent from the record and was debatable, citing the Supreme Court's decision in CIT vs. Hero Cycles Pvt. Ltd.

2. Netting of Interest Income Against Interest Payment:
The assessee argued that the interest received on fixed deposits, made for providing bank guarantees for business purposes, had a direct nexus with its business and should be assessed as business income. The Tribunal agreed, emphasizing that the interest income was reflected in the profit and loss account and had a direct business connection. The Tribunal, relying on the precedent set in Daljit Singh & Bros., held that no separate addition on account of interest earned on FDRs was maintainable once the books of account were rejected.

3. Allowability of Depreciation on Fixed Assets After Applying Net Profit Rate:
For the assessment year 2006-07, the AO did not allow depreciation on fixed assets after applying a net profit rate of 8% on gross receipts. The Tribunal referred to the Punjab & Haryana High Court's decision in Lali Constructions vs. ACIT, which held that depreciation is allowable if the assessee makes a specific claim for it. The Tribunal noted that in the assessee's own case for the assessment year 2004-05, depreciation had been allowed under similar circumstances. Consequently, the Tribunal allowed the depreciation claim.

4. Allowability of Salary and Interest Paid to Partners After Applying Net Profit Rate:
The AO also disallowed salary and interest paid to partners from the determined net profit. The Tribunal referenced its decision in Walia Construction Company vs. DCIT, where it was held that salary and interest to partners should be allowed out of the estimated income, provided the income does not fall below the returned income. The Tribunal followed this precedent and allowed the salary and interest to partners subject to the condition that the income should not fall below the returned income.

Conclusion:
The Tribunal allowed both appeals filed by the assessee, concluding that the AO's actions under section 154 were not justified, the interest income should be treated as business income, and both depreciation and partner-related expenses should be allowed from the estimated net profit. The decision was pronounced in the open court on 11/02/2016.