2014 (12) TMI 4 - AT - Income Tax

Estimation restored by CIT(A) - Receipt of sub-contract payments - Whether the CIT(A) erred in resorting to estimation even in respect of so called sub-contractors, who either denied having done any work or denied receipt of sub-contract payments Held that - As decided in assessee s own case for the earlier assessment year, it has been held that the AO disallowed various amounts only of sub-contracts given by assessee and in some cases monies seems to have deposited or advanced to the Directors of the assessee company - revenue could not point out any of those clinching evidences which are to be excluded from the turnover or to be brought to tax separately - as both the authorities of Revenue accepted the estimation of income and as CIT(A) resorted to estimation based on the norms already been formed in this regard i.e., estimation of income at 12.5% on the main contracts and 8% on subcontracts undertaken, there was no reason to interfere with the order of the CIT(A) Decided against revenue. Disallowance u/s 40(a)(ia) deleted Held that - Following the decision in Indwell Constructions vs. CIT 1998 (3) TMI 121 - ANDHRA PRADESH High Court - section 40 provides for certain disallowances in certain cases notwithstanding that those amounts are allowed generally under other sections - The computation under Section 29 is to be made under section 145 on the basis of the books regularly maintained by the assessee - If those books are not correct or complete, the Income-tax Officer may reject those books and estimate the income to the best of his judgment - when such an estimate is made it is in substitution of the income that is to be computed u/s 29 - all the deductions which are referred to u/s 29 are deemed to have been taken into account while making such an estimate - the embargo placed in Section 40 is also taken into account the order of the CIT(A) is upheld Decided against revenue.

Issues Involved:
1. Disallowance of sub-contract expenses.
2. Disallowance under Section 40(a)(ia) of the Income Tax Act.
3. Disallowance under Section 43B of the Income Tax Act.
4. Disallowance of depreciation.
5. Estimation of income by CIT(A).

Detailed Analysis:

1. Disallowance of Sub-Contract Expenses:
The Assessing Officer (AO) disallowed sub-contract expenses totaling Rs. 143.07 crores due to non-receipt of replies from sub-contractors and returned unserved notices. The AO doubted the existence of these sub-contractors and added the expenses to the income returned. The CIT(A) observed that disallowing the entire sub-contract expenditure would result in abnormally high profit margins, which is impractical in the civil contract business. The CIT(A) directed the AO to estimate the profit of the assessee-company at 12.5% on direct contract works and 8% on sub-contract works. This estimation was based on the norms of the civil contract business and previous appellate orders.

2. Disallowance under Section 40(a)(ia):
The AO made a disallowance of Rs. 4.62 crores under Section 40(a)(ia) due to non-remittance of TDS to the Government account before the due date. The CIT(A) held that since the income is being estimated, no separate disallowance of interest expenditure on account of provisions of Section 40(a)(ia) is necessary. The Tribunal upheld this view, referencing the jurisdictional High Court's decision in Indwell Constructions vs. CIT, which states that all deductions are deemed to have been taken into account while making an income estimate.

3. Disallowance under Section 43B:
The AO disallowed Rs. 30.30 crores under Section 43B for statutory payments classified as outstanding. The CIT(A) found that the entire amount was remitted before the due date of filing the return of income, and therefore, no disallowance under Section 43B was necessary. The Tribunal agreed with this conclusion, noting that the income estimation covers all statutory deductions and disallowances.

4. Disallowance of Depreciation:
The AO disallowed depreciation of Rs. 54.37 lakhs. The CIT(A) held that since the income is being estimated, no separate allowance or disallowance for depreciation is necessary. The Tribunal upheld this view, emphasizing that the estimation of income takes care of all statutory deductions and disallowances.

5. Estimation of Income by CIT(A):
The CIT(A) estimated the income of the assessee at 12.5% on direct contract works and 8% on sub-contract works. This estimation was based on the norms of the civil contract business and previous appellate orders. The Tribunal found no reason to interfere with the CIT(A)'s order, as the estimation was consistent with the accepted norms and previous decisions. The Tribunal also noted that the AO and the Additional CIT had accepted the estimation of income in their reports.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s order to estimate the income at 12.5% on direct contract works and 8% on sub-contract works. The Tribunal confirmed that no separate disallowances under Sections 40(a)(ia), 43B, or for depreciation were necessary, as the income estimation covered all statutory deductions and disallowances. The Tribunal emphasized that the estimation of income was consistent with the norms of the civil contract business and previous appellate decisions.

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