2017 (6) TMI 1310 - AT - Income Tax

Rejection of books of accounts - estimation of net profit rate after the books of accounts have been rejected - assessee firm declared NP rate of 11.44% - HELD THAT - Instead of specific disallowances, the ld CIT(A) as well as Tribunal have considered the position of net profit rate offered by the assessee and have thereafter directed to apply net profit rate of 11.5%. As we have held above, keeping the past history of the assessee into account, the net profit rate of 11.5% is upheld for the impunged assessment year. Further, the past history of the assessee doesn t suggest disallowance of third party interest either by the AO or by the Coordinate Benches. The Coordinate Benches have compared net profit rate as offered by the assessee which is claimed to be before depreciation, remuneration and interest payment to partners as well as interest to third parties and thereafter, directed to apply 11.5%. For the impunged assessment, we see no reason to deviate from the said settled position as both Revenue and the assessee has relied on the past history as we have discussed above. AO is directed to apply net profit rate of 11.5% before depreciation, remuneration and interest payment to partners and interest to third parties (bank). Accordingly, there would not be any further disallowance of interest paid to third parties - Appeal of the assessee is partly allowed.

Summary

Issues Involved:
1. Estimation of net profit rate at 11.50% against the declared N.P. rate of 11.44%.
2. Non-allowance of deduction towards interest paid to third parties amounting to ?24,10,948/- from the estimated net profit.

Detailed Analysis:

Issue 1: Estimation of Net Profit Rate
The assessee contested the confirmation of the net profit rate at 11.50% by the CIT(A) against the declared N.P. rate of 11.44%, resulting in an addition of ?1,05,428/-. The CIT(A) rejected the books of accounts under section 145(3) and included closing stock in the total turnover to estimate the profit by applying a higher N.P. rate of 13%. However, the assessee argued that closing stock should not be part of contract receipts for profit estimation. The CIT(A) observed that the AO did not provide specific reasons for including the closing stock in the gross receipts and noted that past assessments did not include closing stock in contract receipts. Therefore, the CIT(A) excluded the closing stock from contract receipts and determined the profit based on the contract receipts and other income, excluding the closing stock.

The CIT(A) emphasized that after invoking section 145(3), the AO must make an honest estimation based on past history or comparable cases. The CIT(A) referred to past assessments where a net profit rate of 11.50% was applied, subject to depreciation and interest/remuneration to partners, but not interest to third parties. The CIT(A) directed the AO to apply a net profit rate of 11.50% on total receipts, excluding the closing stock.

The Tribunal upheld the CIT(A)'s application of the net profit rate of 11.50%, considering the past history of the assessee, where the same rate was applied in previous years.

Issue 2: Non-Allowance of Interest to Third Parties
The assessee argued that the AO and CIT(A) erred in not allowing the deduction of interest paid to third parties amounting to ?24,10,948/- from the estimated net profit. The assessee contended that in past assessments, interest to third parties was allowed. The AO, however, did not accept this argument, stating that each assessment year is a separate proceeding and did not allow the interest deduction.

The CIT(A) held that the past history of the assessee indicated that the net profit rate of 11.50% was applied subject to depreciation and interest/remuneration to partners, but not interest to third parties. The CIT(A) noted that various case laws cited by the assessee for allowing third-party interest were case-specific and not a settled law for all contractor cases.

The Tribunal examined the past assessments and found that in AY 2007-08 and AY 2008-09, the AO did not disallow interest paid to third parties, and the net profit rate applied by the CIT(A) and Tribunal was before depreciation, remuneration, and interest to partners and third parties. The Tribunal concluded that there was no reason to deviate from this settled position and directed the AO to apply the net profit rate of 11.50% before depreciation, remuneration, and interest payments to partners and third parties. Consequently, the Tribunal allowed the deduction of interest paid to third parties amounting to ?24,10,948/-.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the net profit rate of 11.50% but allowed the deduction of interest paid to third parties from the estimated net profit. The order was pronounced in the open court on 30/06/2017.