2016 (7) TMI 453 - AT - Income Tax

Determination of Profit rate - @ 10% by CIT(A) as against 42.48% determined by AO - books of accounts not produced - Held that - We find that the accounts of the assessee were duly audited and no adverse inference was drawn by the auditor. The books of accounts could not be produced before the ld. AO as the assessee s unit had been taken over by the lending institution. The entire unit including its assets and the books of accounts were in the possession of the bank. The ld. AO was duly aware of this fact and accordingly had also issued summons u/s 131 of the Act to the bank but despite that they have not produced the books of accounts. In such a situation, in our opinion, adverse inference cannot be drawn against the assessee on the ground that books of accounts were not produced by the assessee. We find that asking the assessee to produce the books of accounts in these circumstances would only result in impossibility of performance. The legal maxim LEX NON COGUT AD IMPOSSIBLIA a law cannot compel a man to perform an act which he cannot possibly perform would come to the rescue of the assessee. Adoption of preceding year s gross profit would only result in absurdity as rightly pointed out by the ld. CITA. We find that the assessee had declared profit at 8.42% in its return based on audited data. We find under these circumstances, the revenue had to place the complete reliance on the audited financial statements for the purpose of determination of total income. The ld. CIT-A had estimated the total income at 10% of turnover. However , we, in our considered opinion, in the facts and circumstances of the case, especially considering the state of affairs in which assessee is placed, feel that adoption of profit at the rate of 9% of turnover would meet the ends of justice. The ld. AO is directed to adopt 9% of turnover as income of the assessee as against 42.48%. Accordingly the grounds raised by the revenue are dismissed and cross objections of the assessee are partly allowed.

Summary

Issues Involved:

1. Justification of the gross profit (G.P.) rate determined by the Assessing Officer (AO).
2. Validity of the rejection of books of accounts under section 145(3) of the Income Tax Act, 1961.
3. Determination of an appropriate G.P. rate for the assessment year under dispute.

Issue-wise Detailed Analysis:

1. Justification of the Gross Profit Rate Determined by the Assessing Officer:

The primary issue in the revenue's appeal was whether the Commissioner of Income Tax (Appeals) [CIT(A)] was justified in determining the profit rate at 10% as opposed to the 42.48% determined by the AO. The AO had completed the assessment under section 144 of the Income Tax Act, 1961, due to non-compliance by the assessee and the inability to serve notices or obtain the books of accounts from the creditor bank, which had taken over the assessee's unit. The AO adopted the G.P. rate of 42.48% based on the preceding assessment year. However, the CIT(A) noted that the AO did not dispute the turnover or the incidental expenditure incurred by the assessee. The CIT(A) found that the AO had no basis for adopting the G.P. rate of the previous year, especially given the significant increase in turnover during the disputed assessment year. The CIT(A) concluded that the fall in the G.P. rate was in line with the circumstances and directed the AO to adopt a G.P. rate of 10%.

2. Validity of the Rejection of Books of Accounts under Section 145(3):

The assessee raised cross objections challenging the rejection of its books of accounts under section 145(3) of the Income Tax Act. The CIT(A) upheld the rejection of the books of accounts due to the non-availability of the books, which were in the possession of the creditor bank. The Tribunal noted that the books of accounts were duly audited, and no adverse inference was drawn by the auditor. The Tribunal referred to the legal maxim "LEX NON COGUT AD IMPOSSIBLIA" and the Delhi High Court's decision in Addl CIT vs. Jay Engineering Works Ltd, which held that adverse inference cannot be drawn if it is impossible for the assessee to produce the books of accounts. The Tribunal concluded that in such circumstances, the reliance should be placed on the audited financial statements.

3. Determination of an Appropriate G.P. Rate:

The Tribunal considered the arguments from both sides, including the significant increase in turnover and the adverse conditions faced by the assessee due to Maoist insurgency, which affected its business operations. The Tribunal observed that the turnover had increased sevenfold compared to the previous year, and the assessee had to compromise on the G.P. margins to increase sales and service its debt. The Tribunal found that the AO's adoption of the previous year's G.P. rate was not justified, given the changed circumstances. The Tribunal agreed with the CIT(A) that the G.P. rate should be adjusted but concluded that a G.P. rate of 9% would be more appropriate instead of the 10% determined by the CIT(A).

Conclusion:

The Tribunal dismissed the revenue's appeal and partly allowed the assessee's cross objections. It directed the AO to adopt a G.P. rate of 9% of turnover for the assessment year under dispute, thereby modifying the CIT(A)'s order. The Tribunal emphasized the importance of considering the specific circumstances and challenges faced by the assessee in determining a fair G.P. rate.