9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (1) TMI 1238 - AT - Income TaxEstimation of profit - Held that - On examination of the books of account with reference to the voucher produced, the Assessing Officer found that the voucher does not tally with the cashbook - When the voucher does not tally with cashbook, the book results will not reflect the correct profit of the assessee - The Assessing Officer has rightly rejected the books of account. When the books of account were rejected the only method available to the Assessing Officer is to estimate the profit - The profit ratio cannot be a constant factor for each and every year - Tribunal has been uniformly estimating the profit from main contract at 8% to 12.5% depending upon the factual situation and 5% to 7% on the sub contract depending upon the factual situation. Seiniorage charges - Held that - Following Brij Bhushanlal 1978 (10) TMI 2 - SUPREME Court - The material supplied by the Government/contractor will not have any element of profit - The same shall be reduced from the contract receipts. Depreciation - Held that - By Finance (No.2) Act of 2009 with effect from 1.4.2011 - The restriction of the total contract receipts of ₹ 40 lakhs has been removed - The deduction available u/s 30 to 38 shall be deemed to have been already given full effect and no further deduction under those sections shall be allowed - Decided against assessee. Interest and salary to partners - Held that - In view of the amendment made u/s 44AD which has been made effective from 1.4.2011 - The Legislature intended to allow the interest and salary separately from the estimated income - Salary and interest paid to the partner shall be deducted from the income computed under subsection (1) of section 44AD subject to limitation u/s. 40(b) of the Act - Decided in favour of assessee.
Issues Involved:
1. Estimation of profit from the contract business. 2. Rejection of books of account. 3. Allowance of seiniorage charges. 4. Allowance of depreciation. 5. Allowance of interest and salary paid to partners. Detailed Analysis: 1. Estimation of Profit from the Contract Business: The primary issue in these appeals is the estimation of profit from the contract business. The Assessing Officer (AO) estimated the profit at 12.5%, which was contested by the assessee. The CIT(A) restricted the estimation to 8% for the main contract and 5% for the sub-contract. The Tribunal noted that the profit ratio is not a constant factor and can fluctuate based on various factors such as the place of execution, availability of raw materials, labor, and the assessee's funds. The Tribunal upheld the CIT(A)'s estimation, finding it justified based on the factual situation and previous decisions where profit estimations ranged from 8% to 12.5% for main contracts and 5% to 7% for sub-contracts. 2. Rejection of Books of Account: The AO rejected the books of account on the grounds that the vouchers did not tally with the cashbook, indicating improper maintenance of books. The Tribunal agreed with the AO's decision, stating that the book results would not reflect the correct profit of the assessee due to the discrepancies found. Consequently, the rejection of the books of account and the estimation of profit were deemed appropriate. 3. Allowance of Seiniorage Charges: The Tribunal acknowledged that seiniorage charges are related to the material supplied by the Government for executing the work and do not involve any element of profit. Citing the Apex Court's judgment in Brij Bhushanlal Kumar, the Tribunal directed that seiniorage charges should be reduced from the total contract receipts for the purpose of estimating the profit. 4. Allowance of Depreciation: The Tribunal referred to the jurisdictional High Court's judgment in Indwell Construction, which held that no separate addition should be made for depreciation when profit is estimated. Furthermore, under Section 44AD of the Income-tax Act, all deductions under Sections 30 to 38, including depreciation under Section 32, are deemed to have been given full effect. Therefore, the Tribunal concluded that the claim for depreciation on the estimated income was not justified and upheld the lower authorities' rejection of the same. 5. Allowance of Interest and Salary Paid to Partners: The Tribunal considered the proviso to Section 44AD(2), which allows for the deduction of salary and interest paid to partners from the estimated income, subject to the limitations under Section 40(b). Despite the jurisdictional High Court's earlier ruling in Indwell Construction, the Tribunal noted that Section 44AD was introduced later and intended to allow such deductions. Consequently, the Tribunal directed the AO to allow the salary and interest paid to partners, subject to the limitations specified in Section 40(b). Conclusion: The Tribunal partly allowed the appeals of the assessee by directing the AO to reduce seiniorage charges from the total contract receipts and to allow salary and interest paid to partners. The appeals of the Revenue were dismissed, upholding the CIT(A)'s estimation of profit and the rejection of the claim for depreciation. The Tribunal confirmed the lower authorities' decisions, ensuring a fair and justified estimation of profit while adhering to legal provisions and precedents.
|
