2021 (11) TMI 358 - AT - Income Tax

Estimation of income of contract receipts - CIT-A estimating the profit @ 8% of the turnover - HELD THAT - The project was undertaken, therefore, ld. CIT(A) is justified in holding that the Assessing Officer was to estimate a reasonable net profit on same as when the assessee had undertaken the project, the expenditure on same must have been incurred. Thus, if the entire amount is disallowed, it would result in a profit rate of 21.52%, which would be unjustified. Therefore, for tax purposes, as equitable considerations cannot override the provisions of Act, the ld. CIT(A) made a proper estimation of income on the ground that the actual document found during the course of search suggests that the assessee is a civil contractor for health department and the only thing objected by the AO was claim of higher expenses but the AO went on making addition largely on the basis of assumption and to some extent on the basis of deliberation of facts, gathered. CIT(A) was correct in observing that the assessee as well as AO were not justified in so far as the assessee offered income only at ₹ 29,26,994/- from the total contract receipt of ₹ 7,36,97,747/which is only 4% net profit and on the other hand, the Assessing Officer estimated a much higher net income from contract at ₹ 2,44,33,621/- which comes to an unreasonable net profit from contract. Considering both of the net profits as unjustified and incorrect, the ld. CIT(A) rightly estimated the net profit of the assessee at 8% of the contract receipt

Issues Involved:
1. Justification of restricting the addition from ?2,16,00,000/- to ?29,68,826/-.
2. Validity of the assessment order passed u/s 153A r.w.s. 153C and r.w.s. 143(3).
3. Consideration of the evidence and statements regarding the non-existence and fictitious nature of subcontractors.
4. Estimation of net profit from the contract receipts.

Detailed Analysis:

Issue 1: Justification of Restricting the Addition from ?2,16,00,000/- to ?29,68,826/-
The Revenue contended that the Ld. CIT(A) erred in reducing the addition from ?2,16,00,000/- to ?29,68,826/- without considering the facts of the case. The AO had established that the subcontractors were non-existent and fictitious, leading to the conclusion that the payments were not genuine. However, the Ld. CIT(A) found that the contract work was indeed executed and certified by the Health Department of MP Government. The CIT(A) noted that the assessee provided detailed documentation, including MOU, audited accounts, affidavits, TDS details, and PAN information. The CIT(A) concluded that disallowing the entire amount would result in an unreasonable profit rate of 21.52%. Instead, an 8% net profit rate was deemed reasonable, resulting in an addition of ?29,68,826/-.

Issue 2: Validity of the Assessment Order Passed u/s 153A r.w.s. 153C and r.w.s. 143(3)
The assessee argued that the assessment order was incorrectly passed under sections 153A and 153C, as the search was conducted on 07.09.2007, and thus notice for A.Y. 2008-09 could not be issued. However, this ground was not pressed during the hearing, and thus, it was dismissed as not pressed.

Issue 3: Consideration of the Evidence and Statements Regarding the Non-Existence and Fictitious Nature of Subcontractors
The Revenue argued that the AO had categorically found that the subcontractors were non-existent and fictitious, supported by statements from individuals who denied any acquaintance with the assessee or involvement in the work. The CIT(A) considered these statements but also took into account the affidavits and audited accounts provided by the assessee. The CIT(A) found that the work was indeed carried out and certified by the Health Department, and the payments were made through account payee cheques with TDS deducted. The CIT(A) concluded that the AO's findings were largely based on assumptions and not entirely substantiated by evidence.

Issue 4: Estimation of Net Profit from the Contract Receipts
The CIT(A) observed that the assessee had shown a net profit of ?29,26,994/- from the total contract receipt of ?7,36,97,747/-, which is approximately 4% of the turnover. The AO's addition of ?2,16,00,000/- would result in an unreasonable profit margin of 33.5%. The CIT(A) found that an 8% net profit rate was more reasonable, resulting in an addition of ?29,68,826/-. This estimation was based on the fact that the work was executed and certified, and the payments were made through proper channels.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to restrict the addition to ?29,68,826/-, finding no infirmity in the estimation of net profit at 8%. The grounds raised by the Revenue were dismissed, and the assessee's cross-objection regarding the validity of the assessment order was dismissed as not pressed. The final order confirmed the CIT(A)'s decision, emphasizing that the estimation of income was reasonable and justified based on the available evidence and documentation.

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