2013 (3) TMI 561 - HC - Income Tax

Bogus and unverified purchases - appellant argued that earlier CIT(A) has applied 11% as net profit rate of the contract receipts but after remand has applied 8% of the contract receipts as a net profit rate - Held that - The Tribunal in the earlier appeal found that the books of account were not rejected by AO therefore, the best judgment assessment could not be framed by the CIT(A). However, after remand, it has been found that in fact the AO has proposed to reject the books of account and to compute income by applying net profit @ 8% of the contract receipts. - Since the assessee has not maintained proper books reflecting the purchase of the material and the wages payable or paid, the revenue has no option but to frame best judgments assessment. It is not the case of the revenue that the assessee has not executed the work at all. In fact the order passed by the AO shows the details of the work executed by the assessee. AO in the following assessment year applied 8% net profit rate on contract receipt. There is no dispute to the argument that each of the assessment year is independent proceedings and the AO is within its jurisdiction to frame assessment by applying net rate of profit which he found prudent. But if in the earlier assessment years as well as in the subsequent assessment year, a particular net profit rate has been applied, it is a prudent rate of income, which has been applied by the CIT (A). Such finding cannot be said to give rise to any substantial question of law in the present appeal.

Summary

Issues:
1. Upholding of order despite sufficient opportunities given to the assessee during assessment proceedings.
2. Deletion of additions on account of wages and salary payable without proof of identity, creditworthiness, and genuineness.
3. Deletion of addition on account of purchase of material without proving genuineness.
4. Allowing the Ld. CIT(A) to delete additions without allowing the A.O to represent the case on behalf of revenue.

Issue 1:
The appeal under Section 260-A of the Income Tax Act, 1961 raised the issue of whether the ITAT was correct in upholding the order of the Ld. CIT (A) despite sufficient opportunities given to the assessee during the assessment proceedings. The assessee, a civil contractor, filed its return declaring total income. The assessment was framed by the Assessing Officer, making substantial additions, which were partly accepted by the CIT (A). The Tribunal accepted both appeals, finding that the Assessing Officer did not reject the books of account but made additions based on non-production of evidence. The appeals were remanded back to the CIT (A) for fresh decision.

Issue 2:
The second issue revolved around the correctness of confirming the deletion of additions on account of wages and salary payable without proving identity, creditworthiness, and genuineness. The CIT (A) applied a net profit rate on contract receipts, which was later reduced after remand. The appellant argued that each assessment year is independent, and the net profit rate applied in earlier years cannot be the basis for finalizing the assessment of the current year. However, the Tribunal found that since proper books were not maintained by the assessee, the revenue had to frame a best judgment assessment based on available information.

Issue 3:
Regarding the deletion of the addition on account of purchase of material without proving genuineness, the Tribunal found that the Assessing Officer proposed to reject the books of account and compute income based on a net profit rate. As the assessee failed to maintain proper records, the revenue had to rely on best judgment assessment. The Tribunal noted that the Assessing Officer had applied a similar net profit rate in a subsequent assessment year, indicating a consistent approach in determining income.

Issue 4:
The final issue questioned the correctness of confirming the order of the Ld. CIT(A) without allowing the A.O to represent the case on behalf of revenue. The Tribunal found that the Assessing Officer had proposed to reject the books of account and compute income based on a net profit rate. The Tribunal upheld the decision, stating that each assessment year is independent, and the Assessing Officer has the jurisdiction to apply a prudent net profit rate based on the circumstances of the case. The consistent application of a particular net profit rate in various assessment years was deemed prudent and did not raise substantial questions of law.

In conclusion, the High Court dismissed the appeal, finding no merit in the arguments presented by the appellant. The Tribunal's decision to uphold the CIT (A)'s order was based on the lack of proper bookkeeping by the assessee, necessitating a best judgment assessment by the revenue. The Court emphasized the independence of each assessment year and the Assessing Officer's discretion in applying a suitable net profit rate based on the circumstances of the case.