2014 (11) TMI 766 - AT - Income Tax

Estimation of rate of NP @ 4% of gross contractual receipt or @ 8% - Held that - The assessee company is a sub-contractor to execute the civil construction works awarded by the principals, which is a small part of the projects executed by the principals - On the contract receipts, the principals had also deducted the tax u/s 194C of the Act - Besides, the assessee company is also engaged in the business of trading of sarees - the assessee filed duly audited profit and loss account and balance sheet along with its annexure - It also produced the audited books of account, bills/vouchers and bank statements before the AO as admitted by him n the assessment order - it further produced all the details and explanations called for by the AO from time to time - It also produced labour registers before the AO - assessee contended that the estimation of net profit @ 8% by relying on provisions of section 44AD of the Act is totally incorrect and without any basis for the reason that the assessee company is subcontractor and its prof t margin is low in compar son to the contractors. The AO has compared the profit of the assessee with the companies whose turnover and business paraphernalia is huge in comparison to the assessee company - the assessee company had executed the part of work of civil construction for these companies and, therefore, it is not correct to compare the profit of those companies with the profit margin of the assessee - the profit margin of those companies is also less than the margin which has been estimated by the AO in the case of assessee - assessee argued that the AO has failed to appreciate that the profit margins of contractors and sub-contractors cannot be same - the net profit is ranging from 5.19% to 6.15%, definitely there will be lower profit in the case of sub contractor i.e. the assessee and hence, the CIT(A) has rightly estimated the net profit rate at 4% - thus, the order of the CIT(A) is upheld Decided against revenue.

Summary

Issues Involved:
- Estimation of net profit rate by CIT(A) at 4% versus AO's estimation at 8%.

Detailed Analysis:

Common Issue: Estimation of Net Profit Rate
The primary issue in these appeals is the estimation of the net profit rate by the CIT(A) at 4% of the gross contractual receipts, as opposed to the 8% estimated by the AO.

Facts and Background:
A search and seizure operation under Section 132 of the Income-tax Act, 1961, was conducted on the business and residential premises of two companies on 17.03.2010. During the search, documents belonging to the assessee company were seized, and a consequential survey operation under Section 133A was carried out at the assessee's business premises. Consequently, a notice under Section 153C was issued, and the assessee filed its return of income. The assessee is engaged in civil construction, supply of labor, and trading in sarees.

AO's Observations and Actions:
The AO noted that the assessee failed to produce all relevant vouchers, bills, and invoices to support its expenses. The labor registers did not contain signatures or thumb impressions of all recipients, leading the AO to reject the books of account under Section 145. The AO then estimated the net profit at 8% of the gross contract receipt, amounting to Rs. 91,56,267/-.

CIT(A)'s Observations and Actions:
The CIT(A) considered the submissions and noted that the assessee had produced audited books of account, bills, vouchers, and bank statements. The CIT(A) found that the AO did not specify how the labor register should have been maintained and only made adverse observations without pointing out specific defects in the audited books. The CIT(A) also noted that the AO compared the profit margins of the assessee with those of larger companies, which was inappropriate since the assessee was a subcontractor with inherently lower profit margins. Consequently, the CIT(A) restricted the net profit rate to 4% of the gross contractual receipts.

Tribunal's Analysis:
The Tribunal noted that the assessee's net profit rate declared was 0.67% for the year under consideration. The AO had rejected the books of account due to perceived irregularities in the labor register and non-production of certain bills and vouchers. The AO compared the assessee's profit margins with those of larger companies and applied an 8% profit rate as per Section 44AD, which was not applicable due to the assessee's turnover exceeding Rs. 40 lakhs.

The Tribunal agreed with the CIT(A) that the profit margins of subcontractors are typically lower than those of contractors. The Tribunal found that the CIT(A) had rightly estimated the net profit rate at 4%, considering the factual position and comparative figures of the principal companies. The Tribunal upheld the CIT(A)'s order and dismissed the revenue's appeals.

Conclusion:
The Tribunal confirmed the CIT(A)'s decision to estimate the net profit rate at 4% instead of 8%, considering the nature of the assessee's business as a subcontractor and the lack of specific defects in the audited books of account. The revenue's appeals were dismissed, and the order was pronounced on 05.11.2014.