2012 (10) TMI 48 - AT - Income Tax

Rejection of books of accounts u/s 145 Calculation of profit by applying Net Profit ratio Whether AO in making best judgment assessment u/s 144 has possess absolute arbitrary authority to assess any figure he likes - Assessee engage in construction business Labour expense constitute 37% of total expense Vouchers do not contain details like labour rate, working days etc. Cash payment of labour expense amounting Rs. 1.39 cr. out of total exp. of labour of Rs. 7.47 cr. - Cash payment were made of only 20% of total labour exp. Held that - Assessee working at 21 sites during the year and most of the labour was unskilled and illiterate, don t have permanent address, not have bank account. Net Profit rate shown by assessee was on higher side in comparison to earlier years. On the basis of decided case of Brij Bhushan Lal Parduman Kumar(1978 (10) TMI 2 - SUPREME COURT) that even in the case of best judgment assessment u/s 144, the same has to be done on reasonable basis and it should not be vindictively or capriciously. Therefore, AO is not justifying in rejection of books and applying NP rate. Treating Foreign expenses as bogus AO contended that it does not have any relation with the business need Held that - As the assessee furnished break-up details of local and foreign traveling of the partners. No family members accompanied the partners and that by itself is sufficient to show that the expenditures are for business purpose. Visits to foreign country were made to know for its high standard urban infrastructure like Hong Kong, Malaysia which led to increase of knowledge of recent technology in construction business. Further, the machinery was purchased from abroad in the later years. Therefore, same cannot be treated as bogus. Appeal decides in favour of assessee

Summary

Issues Involved:
1. Invocation of Section 145(3) for rejection of books of account.
2. Estimation of income at 12% of total receipts.
3. Allowance of remuneration and interest to partners.

Detailed Analysis:

1. Invocation of Section 145(3) for Rejection of Books of Account:
The department contended that the conditions for invoking Section 145(3) were met due to discrepancies in the assessee's books of account, including bogus expenditure and unverified vouchers. The Assessing Officer (AO) found that the assessee did not maintain proper books of account and debited bogus expenditures, particularly in labor charges, which constituted 37% of total construction income. The AO impounded vouchers amounting to Rs. 4,10,68,225 against a claim of Rs. 7,46,83,620, noting a shortfall of Rs. 3,36,14,795, and concluded that the vouchers for the said amount did not exist. Further, the AO found defects in the vouchers, such as lack of numbering, signatures, and addresses, and deemed them fabricated. The AO also questioned the genuineness of labor payments and travel expenses.

The CIT(A) held that the AO did not make a case for invoking Section 145(3). The books of account were subjected to tax audit under Section 44AB, and no adverse remarks were made by the auditor regarding the genuineness of labor payments. The CIT(A) noted that the AO's findings were based on minor discrepancies and that the assessee provided credible explanations for these discrepancies. The CIT(A) also pointed out that the AO did not provide an opportunity for the assessee to clarify the issues before rejecting the books of account.

2. Estimation of Income at 12% of Total Receipts:
The AO estimated the income of the assessee at 12% of total contract receipts, amounting to Rs. 2,47,02,521. The CIT(A) found this estimation to be without basis, noting that the AO did not provide any comparable cases to justify the 12% rate. The CIT(A) highlighted that the assessee's net profit ratio was 9.75%, contrary to the AO's claim of 3.69%, and that the AO's estimation lacked material support. The CIT(A) also noted that the AO's action was arbitrary and not supported by any reasonable basis, citing judicial precedents that best judgment assessments should not be vindictive or capricious.

3. Allowance of Remuneration and Interest to Partners:
The AO disallowed remuneration and interest to partners, arguing that these were already considered in the net income estimation at 12% of total receipts. The CIT(A) directed the AO to allow these deductions, as the rejection of books of account and the subsequent estimation of income were not justified. The CIT(A) emphasized that the assessee's books of account were audited, and the AO did not bring any specific material to show that the books were unreliable or did not reflect the real profit.

Conclusion:
The Tribunal upheld the CIT(A)'s order, agreeing that the AO's rejection of books of account and estimation of income were not justified. The Tribunal noted that the AO's findings were based on minor discrepancies and assumptions, and the assessee provided satisfactory explanations for these discrepancies. The Tribunal also agreed that the AO's estimation of income at 12% was arbitrary and lacked a reasonable basis. Consequently, the appeal filed by the department was dismissed.