2017 (2) TMI 1526 - AT - Income Tax

Rejection of books of accounts - NP Profit estimation - A.O. estimated net profit of 7% on gross receipts net of all deductions including depreciation - HELD THAT - Though, the assessee has maintained katcha books of accounts, which does not give true and correct profit of the business as the assessee has not accounted certain receipts from return trips. A.O. opined that trading result disclosed by the assessee are not amenable for verification going by the fact that the assessee did not produce regular books of accounts duly supported by documentary evidence such as bills/vouchers for different items of expenditure such as diesel, driver betas, loading unloading charges and particularly other expenses which contributes major part of the total expenditure for the assessment year under review. A.O. further influenced from the statement of the managing partner deposed an oath at the time of recording sworn deposition dated 5.2.2010 to the effect that the freight receipts others than Raasi Cements are not reflected in the books of accounts. Therefore, we are of the view that the A.O. was right in rejection of books of accounts and estimation of net profit. NP estimation - We find that the coordinate bench of this Tribunal in the case of ITO Vs. Sri Gundapaneni Nageswara Rao 2014 (5) TMI 344 - ITAT HYDERABAD under similar set of facts, has directed the A.O. to estimate net profit of 3% net of all deductions including depreciation. Though, there are divergent views from the appellate authorities, the view which is more beneficial to the assessee has to be adopted in view of the Supreme Court, decision in the case of CIT vs. Vegetable Products Limited 1973 (1) TMI 1 - SUPREME COURT Therefore, we are of the considered view that since, the assessee has not proved the ownership of assets to claim the depreciation we deem it appropriate to direct the A.O. to estimate net profit of 3% on gross receipts net of all deductions including depreciation. Accordingly, we direct the A.O. to estimate net profit of 3% on gross contract receipts net of all deductions for all the assessment years 2006-07 to 2009-10. Revenue appeal is partly allowed.

Summary

Issues Involved:
1. Rejection of books of accounts and estimation of net profit.
2. Allowance of depreciation on assets.
3. Validity of new claims in re-assessment proceedings.
4. Estimation of net profit percentage.

Detailed Analysis:

1. Rejection of Books of Accounts and Estimation of Net Profit:
The assessee, a partnership firm engaged in transport contract business, did not produce regular books of accounts during a survey operation conducted under section 133A of the Income Tax Act, 1961. The survey revealed that the assessee maintained only katcha account books, which were impounded. The Assessing Officer (A.O.) found that the trading results disclosed by the assessee were not amenable for verification due to the absence of regular books of accounts and supporting documentary evidence for various expenditures. Consequently, the A.O. rejected the books of accounts under section 145(3) of the Act and resorted to a reasonable estimate of net profit under section 144 of the Act, estimating a net profit of 7% on gross receipts net of all deductions, including depreciation. The CIT(A) upheld the principle of income estimation but directed the A.O. to estimate income at 10% of gross receipts subject to allowance of depreciation, based on judicial precedents.

2. Allowance of Depreciation on Assets:
The A.O. rejected the depreciation claim on the grounds that the assessee failed to prove ownership of the assets, which is mandatory for claiming depreciation under section 32 of the Act. The CIT(A), however, allowed the depreciation claim, stating that the assessee had beneficial ownership of the assets and that depreciation is a statutory allowance on the value of the assets. The CIT(A) relied on judicial precedents where depreciation was allowed even after the estimation of net profit. The A.O. contended that the assessee could not make a fresh claim for depreciation in the revised return filed in response to a notice under section 148 of the Act, as re-assessment proceedings are meant for addressing escaped income beneficial to the revenue.

3. Validity of New Claims in Re-assessment Proceedings:
The revenue argued that re-opening of an assessment could only be for the benefit of the revenue and that the assessee could not raise a new claim or deduction not claimed earlier. The D.R. emphasized that the re-assessed income should not go below the returned income, which was not permitted under law. The CIT(A) allowed the depreciation claim, leading to a reduction in the assessed income, which the revenue contested.

4. Estimation of Net Profit Percentage:
The A.O. estimated a net profit of 7% on gross receipts, which the assessee contended was high given the nature of its business. The CIT(A) directed the A.O. to estimate income at 10% of gross receipts subject to allowance of depreciation, based on judicial precedents. The assessee argued for a lower net profit rate, citing judicial precedents where net profit was estimated at 3% net of all deductions. The Tribunal found that the books of accounts were not susceptible to verification and that the A.O.'s estimation was based on judicial precedents. However, considering the Supreme Court's decision in CIT vs. Vegetable Products Limited, which favors the view beneficial to the assessee, the Tribunal directed the A.O. to estimate net profit at 3% on gross receipts net of all deductions, including depreciation.

Conclusion:
The Tribunal partly allowed the revenue's appeals and dismissed the assessee's cross objections. The Tribunal directed the A.O. to estimate net profit at 3% on gross contract receipts net of all deductions for the assessment years 2006-07 to 2009-10, aligning with judicial precedents and the principle of adopting the view beneficial to the assessee.