2018 (9) TMI 411 - AT - Income Tax

Justification to apply the profit rate of 8% in view of section 44AD - rejection of books of accounts - Held that - All the books of account are maintained in ordinary course of business, but the same could not be produced before the AO for the reason that the accounts books were with the lady accountant, who had gone on long leave owing to her pregnancy. This reason, however, is not appealing to us, as the assessee has also failed to attend various dates given by first appellate authority and to produce the books of accounts before him. The application of section 44AD by the authorities below does not appear proper keeping in view the volume of gross receipts and the audit reports filed by the assessee before the AO. The Authorities below, therefore, were also not justified to apply the profit rate of 8% in view of section 44AD without examining the previous and subsequent history of the appellant and without referring to any comparable case in the line of assessee s business. Best judgment assessment should not be based on simple presumption, but should have a reasonable basis, as held in several decisions - restore the matter back to the file of Assessing Officer for passing the assessment order de-novo after giving one more opportunity to the assessee of being heard - Appeal is allowed for statistical purposes.

Issues:
1. Application of arbitrary profit rate post rejection of books under section 145
2. Restoration of returned business profits
3. Vacating ad hoc assessment made by Assessing Officer
4. Compliance with principles of natural justice in passing ex-parte orders
5. Separate assessment of interest income from other sources

Analysis:

Issue 1: Application of arbitrary profit rate post rejection of books under section 145

The assessee challenged the application of an 8% profit rate on declared receipts post rejection of books under section 145. The Assessing Officer (AO) made a best judgment assessment due to the assessee's failure to furnish details or produce books of account. The AO assessed the profit at ?95,83,090 on declared gross receipts of ?11,97,88,637, representing 8% on a presumptive basis as per section 44AD. The appellant contended that the accounts were audited, and the profit rate of 8% was unjustified, citing a previous assessment where a lower profit rate was applied. The Tribunal found the application of section 44AD by the authorities improper given the volume of receipts and audit reports submitted. It held that the best judgment assessment should have a reasonable basis and directed the matter back to the AO for a fresh assessment, emphasizing the need for the assessee's full cooperation.

Issue 2: Restoration of returned business profits

The appellant sought the restoration of returned business profits, contending that the profits were reasonable and contemporaneous at 4.26% of declared receipts. However, the AO and CIT(A) upheld the higher profit assessment due to the assessee's non-cooperation and lack of supporting documentation. The Tribunal acknowledged the need for a fair assessment based on merits and directed the AO to reevaluate the profits after providing the assessee with another opportunity to present their case with supporting evidence.

Issue 3: Vacating ad hoc assessment made by Assessing Officer

The appellant challenged the ad hoc and arbitrary assessment made by the AO without adequate analysis. The Tribunal noted the lack of cooperation from the assessee in providing necessary details or attending hearings, leading to the affirmation of the AO's order by the CIT(A). However, it emphasized the importance of a well-founded assessment and directed the AO to conduct a fresh assessment with the assessee's full cooperation.

Issue 4: Compliance with principles of natural justice in passing ex-parte orders

Both the AO and CIT(A) were criticized for passing ex-parte orders without adhering to principles of natural justice. The Tribunal highlighted the significance of allowing the assessee a fair opportunity to present their case and directed the AO to ensure due process in the reassessment proceedings.

Issue 5: Separate assessment of interest income from other sources

The authorities erred in separately assessing business interest income already declared under other sources. The Tribunal emphasized the need for assessments to align with legal provisions and directed a reevaluation of the interest income treatment to ensure compliance with applicable laws.

In conclusion, the Tribunal allowed the appeal for statistical purposes, emphasizing the importance of a fair and well-founded assessment process based on cooperation, evidence, and legal provisions.

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