2013 (1) TMI 133 - AT - Income Tax

Addition on account of cash credits u/s 68 - Credit worthiness and genuineness of transactions - Assessee had taken fresh loans during the year from seven agriculturists Held that - The AO had also failed to examine the issue in detail by either summoning the creditors or for calling for further details. CIT(A) who has power co-terminus with AO in such matters has also failed to examine the issue in detail as he proceeded to make addition on agreed basis. Credit worthiness of the parties was not proved, without giving any further opportunity to the assessee to explain the credit. Remand back to AO Disallowance of bogus purchases and sub-contract charges - Purchases were not properly substantiated Assessee submit wrong P.A number Assessee declared net profit @ 6.5% - Disallowance on account of purchases and sub-contract charges aggregating to Rs. 725 lakhs - Held that - Disallowance mad by AO result into abnormally high net profit rate of 34.43%. Assessee had done the contract work and had shown total contract receipts of Rs. 2114 lakhs. The business cannot be done without purchases and other expenses, and therefore, the entire claim cannot be disallowed. Profit calculated by AO is highly abnormal cannot be considered as reasonable. Section 44AD deems the net profit rate at 8% in cases where accounts are not maintained and turnover is up to Rs.40.00 lacs. This however, does not mean that profit will lower when the turnover is more than Rs.40.00 lacs. In fact with rise in volume, working becomes more economical and profitability may normally be higher. Each case has to be decided on its own facts and circumstances. Even in the comparable cases cited, the net profit rate had varied from 2.93% to 9.96%. These are big concerns who maintain proper accounts and also maintain quality standards. Estimation of net profit rate of 8% by CIT(A) is justified. In favour of revenue Addition on account of penal charges u/s 37(1) - Delayed execution of contract work - AO had treated the payment as penalty for infraction of law Held that - The payment was not for infraction of law cannot be faulted with. Any payment for violation for contractual obligation has to be allowed as normal business expenditure. In favour of assessee

Summary

Issues Involved:
1. Addition on account of cash credit.
2. Disallowance of purchases and sub-contract charges.
3. Estimation of net profit.
4. Disallowance of penalty.

Detailed Analysis:

1. Addition on Account of Cash Credit:
The Assessing Officer (AO) treated cash credits of Rs.54,50,000/- as income under section 68 of the Income Tax Act, due to the assessee's failure to prove the creditworthiness and genuineness of transactions. The CIT(A) confirmed the addition of peak credit of Rs.44,50,000/- based on the assessee's agreement to avoid litigation. However, the assessee later denied this agreement, claiming it was signed without understanding its implications. The Tribunal found that the assessee had provided confirmations and landholding details of the creditors but lacked evidence of substantial agricultural income. The AO and CIT(A) failed to thoroughly examine the creditworthiness. The Tribunal set aside the CIT(A)'s order and remanded the matter for a fresh examination of the creditworthiness and genuineness of the transactions.

2. Disallowance of Purchases and Sub-Contract Charges:
The AO disallowed purchases of Rs.2,87,57,709/- from three parties, citing discrepancies such as incorrect PAN numbers and non-existent parties at given addresses. Similarly, sub-contract charges of Rs.4,37,62,148/- were disallowed due to the lack of evidence supporting the transactions. The CIT(A) observed that disallowing the entire amount resulted in an abnormally high net profit rate of 34.43%, which was unreasonable. The CIT(A) estimated a net profit rate of 8%, considering the discrepancies in the books of account and the comparative cases provided by the assessee. The Tribunal upheld the CIT(A)'s decision, agreeing that the books of account were unreliable and that a reasonable estimation of net profit was necessary.

3. Estimation of Net Profit:
The CIT(A) estimated the net profit at 8% of the gross contract receipts, resulting in an addition of Rs.30,68,325/-. The assessee argued that the net profit rate of 6.5% declared was reasonable, supported by comparative cases. The department contended that the disallowed purchases and sub-contract charges were not substantiated. The Tribunal agreed with the CIT(A) that the books of account were unreliable and that an 8% net profit rate was justified given the circumstances and comparative cases.

4. Disallowance of Penalty:
The AO disallowed Rs.2,88,353/- paid as penal charges for delayed execution of contract work, treating it as a penalty for infraction of law under section 37(1). The CIT(A) deleted the addition, accepting the assessee's claim that the charges were for delayed execution and not for any legal infraction. The Tribunal upheld the CIT(A)'s decision, confirming that payments for contractual violations are allowable as business expenditures.

Conclusion:
The Tribunal partly allowed both the appeals and the cross-objection, remanding the issue of cash credit for fresh examination, upholding the CIT(A)'s estimation of net profit at 8%, and confirming the deletion of penal charges as allowable business expenditures.