2008 (7) TMI 505 - HC - Income Tax

Assessing Officer rejected the books of account and made a best judgment assessment determining the gross profit and then from out of that allowed various admissible deductions including depreciation - Tribunal has itself found that the case did not strictly fall within the parameters laid down under section 44AD, however, since the Tribunal found that it is regularly seeking guidelines from this section for applying the net profit rate the net profit rate was applied and directed to be calculated after depreciation, but before remuneration and interest to the partners. Held that in a case of rejection of accounts and estimation of net profit on best judgment basis, depreciation was to be allowed Since the gross receipts exceeded Rs. 40 lac, section 44AD of the Act was not applicable - In our view, in taxing statutes, such adopting the principle underlying other sections cannot be said to be permissible and sooner the practice is stopped, the better Tribunal was not justified in adopting the principle underlying section 44AD of the Act, when it was not applicable

Summary

Issues:
1. Whether further adjustment of profits by way of allowance of depreciation is permissible in best judgment assessment?
2. Validity of Commissioner of Income-tax assuming jurisdiction under section 263.
3. Justification of Tribunal adopting the principle underlying section 44AD when not applicable.

Analysis:
1. The appeal involved three substantial questions of law. The first issue was whether, in a best judgment assessment, adjustment of profits by allowing depreciation is permissible. The Tribunal had upheld the Assessing Officer's decision to allow deductions, including depreciation, after determining gross profit. The Tribunal applied a net profit rate and calculated the taxable income after depreciation but before remuneration and interest to partners. The appellant cited relevant judgments to support the claim that depreciation should be allowed even in best judgment assessments. The court agreed with the appellant, emphasizing the necessity of allowing depreciation in such cases.

2. The second issue pertained to the Commissioner of Income-tax assuming jurisdiction under section 263 based on the alleged erroneous allowance of depreciation by the Assessing Officer. However, both counsels agreed that this question was not relevant to the appeal, and hence, it was not addressed in the judgment.

3. The third issue revolved around the Tribunal's justification for adopting the principle underlying section 44AD, despite the case not strictly falling within its parameters. The Tribunal applied the net profit rate from section 44AD for calculation purposes. The appellant contended that such adoption was not permissible under the law, while the Revenue argued that the Tribunal's findings were factual and did not warrant interference. The court held that while the Tribunal may have relied on section 44AD for guidance, its adoption was not justified as the section was not applicable to the case. The court directed all Tribunals to cease this practice and set aside the Tribunal's order based on the incorrect adoption of section 44AD.

In conclusion, the court allowed the appeal, set aside the Tribunal's order, and remanded the matter for fresh consideration, instructing the Tribunals to adhere to the correct legal principles without adopting inapplicable sections like 44AD.