2017 (5) TMI 117 - AT - Income Tax

Escapement of income - understatement of closing work in progress - Since, the assessee has failed to substantiate the expenses claimed with proper supporting evidences and also most of the expenditure were supported by selfmade vouchers, the A.O. rejected books of accounts u/s 145(3) of the Act and estimated income and adopted net profit rate of 12.5% on main contract works, 8% on sub contract works and 4% on sub contract works given to third parties, subject to further deductions towards interest on capital and remuneration to partners u/s 40(b) of the Act - Held that - There is no straight jacket formula for estimation of net profit. Before estimation of net profit, facts and circumstances of each case should be considered. In the present case on hand, on perusal of the facts available on record, we find that the assessee is a large contractor having a turnover of more than ₹ 90 crores. Therefore, keeping in view of the facts and circumstances of the case and also considering the assessee s own case for the earlier period, to meet the ends of justice, we direct the A.O. to estimate net profit of 10% on main contract works and 7% on sub contract works, net of all expenditure including depreciation, but subject to further deductions towards interest on capital and remuneration to partners u/s 40(b) of the Act - ground raised by the revenue is partly allowed. Validity of re-assessment proceedings - A.O. has re-opened the assessment merely on change of opinion without there being any new material or information which suggests escapement of income within the meaning of section 147 of the Act - Held that - Since, we have directed the A.O. to estimate net profit by following the assessee s own case for the assessment year 2011-12, subject to a modification in respect of net profit on sub contract works, we dismiss ground raised by the assessee challenging the validity of re-assessment proceedings as not pressed. Estimation of net profit on contract works given to others - Held that - the assessee has failed to advance any reasons for estimation of 3% net profit on sub contract works given to others. We further observed that the A.O. has adopted net profit of 4% which is quite reasonable when compared to the nature of business of the assessee. Therefore, we uphold the net profit estimated by the A.O. and reject ground raised by the assessee. Appeal disposed off - decided partly in favor of assessee.

Issues Involved:
1. Validity of re-assessment proceedings.
2. Rejection of books of accounts and estimation of net profit.
3. Estimation of net profit rates for main contract works and sub-contract works.
4. Inclusion of interest income and miscellaneous receipts in the gross contract receipts for net profit estimation.
5. Estimation of net profit on contract works given to others for execution.

Detailed Analysis:

1. Validity of Re-assessment Proceedings:
The assessee challenged the re-assessment proceedings on the grounds that the Assessing Officer (A.O.) re-opened the assessments merely on a "change of opinion" without any new material or information suggesting escapement of income. The CIT(A) rejected this claim, stating that the assessee had responded to the notice under section 148 of the Income Tax Act and participated in the assessment proceedings, thus validating the re-assessment. During the appellate proceedings, the assessee conceded this ground if the bench estimated net profit following the assessee's own case for the assessment year 2011-12. Consequently, this ground was dismissed as not pressed.

2. Rejection of Books of Accounts and Estimation of Net Profit:
The A.O. rejected the books of accounts under section 145(3) of the Act due to the assessee's failure to substantiate expenses with proper supporting evidence, relying heavily on self-made vouchers. The A.O. estimated the net profit by adopting a rate of 12.5% on main contract works and 8% on sub-contract works, referencing the case of M/s. KNR Constructions Limited. The CIT(A) upheld the rejection of books but modified the net profit estimation to 8% on main contract works and 6% on sub-contract works, referencing the case of M/s. Srinivasa Lakshmi Constructions Vs. DCIT.

3. Estimation of Net Profit Rates:
The A.O.'s estimation of 12.5% and 8% was contested by the assessee, who argued that these rates were high considering the nature of their work and higher labor costs. The CIT(A) adjusted these rates to 8% and 6%, respectively. However, the appellate tribunal noted that both the A.O. and the assessee failed to provide comparable cases to justify their respective rates. Given the large turnover of the assessee and the inadequacy of the books of accounts, the tribunal directed the A.O. to estimate net profit at 10% for main contract works and 7% for sub-contract works, net of all expenses, including depreciation, but subject to further deductions under section 40(b) of the Act.

4. Inclusion of Interest Income and Miscellaneous Receipts:
The assessee argued that interest receipts and other miscellaneous receipts should be included in the gross contract receipts for net profit estimation. The tribunal rejected this argument, stating that these receipts were unrelated to the business of the assessee. The CIT(A) upheld the A.O.'s decision to treat these receipts separately under the head "income from other sources."

5. Estimation of Net Profit on Contract Works Given to Others:
The A.O. estimated a net profit of 4% on contract works given to others for execution. The assessee contended that this rate was high and suggested a 3% rate. The tribunal found no merit in the assessee's argument and upheld the A.O.'s estimation of 4%, considering it reasonable given the nature of the business.

Conclusion:
The appeals filed by the revenue were partly allowed, and the cross objections filed by the assessee were dismissed. The tribunal directed the A.O. to estimate net profit at 10% for main contract works and 7% for sub-contract works, while upholding the separate treatment of interest income and other miscellaneous receipts. The order was pronounced in the open court on 28th April 2017.

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