2016 (6) TMI 106 - AT - Income Tax

Computation of income - sales computation - reference to special audit u/s.142(2A) - Held that - In the present case, the books of the assessee cannot be accepted due to the complexity of the nature of business and maintenance of books of account at the same time the recasted profits & loss computed by the special auditor also has reliability issue, which were computed based on presumptions. This is the fit case to estimate the income of the assessee. In this given situation, the presumptive rate available in the section 44AD may be adopted even though the turnover of the assessee is more than the turnover of the eligible assessee as prescribed in the section 44AD. This is the rate which is near to the percentage arrived after factoring the reliability and the income computed by the special auditor. Hence, we direct the AO to adopt 8% of the sales as determined by the special auditor, to compute the income of the assessee year to year basis for AY 2000-01 to 2006-07. - Decided against revenue

Issues Involved:
1. Validity of reference to special audit under Section 142(2A) of the Income Tax Act.
2. Validity of the special audit report and its findings.
3. Disallowance under Section 40A(3) of the Income Tax Act.
4. Disallowance of 30% of site development, sales, administrative, and other expenses.
5. Estimation of income.

Issue-wise Detailed Analysis:

1. Validity of Reference to Special Audit under Section 142(2A):
The assessee objected to the reference to special audit under Section 142(2A), arguing that there was no complexity in their accounts to warrant such an audit. The Assessing Officer (AO) overruled these objections, citing the complexity and the interests of revenue. The CIT(A) upheld the AO's decision, noting that the AO did not bring any fresh material to establish that the appellant inflated expenditure to reduce profits. The CIT(A) also observed that the AO did not convincingly explain why he was not satisfied with the expenditure claimed by the appellant or why the figures suggested by the Special Auditor were unacceptable. The Tribunal found that the AO's reference to special audit was proper and within the scope of Section 142(2A).

2. Validity of the Special Audit Report and Its Findings:
The assessee contended that the special audit report was full of contradictions and based on presumptions rather than actual material. They argued that the special auditor had overstepped by preparing a fresh profit and loss account, ignoring the original one prepared in compliance with the Companies Act. The Tribunal noted that the special auditor had to rely on the information available due to non-cooperation from the assessee and the seizure of records. The Tribunal found that the special auditor's report was within the scope of the assignment and based on the available information. However, the Tribunal also noted the reliability issues in the special audit report and decided to estimate the income by adopting a flat rate of 8% of the sales, as determined by the special auditor.

3. Disallowance under Section 40A(3):
The AO disallowed 20% of ?36,56,077/- being expenditure incurred in cash, contravening the provisions of Section 40A(3). The assessee argued that the payments were made to agriculturists who insisted on cash payments due to limited banking facilities. The Tribunal upheld the AO's disallowance, noting that the assessee failed to provide sufficient evidence to support their claim.

4. Disallowance of 30% of Site Development, Sales, Administrative, and Other Expenses:
The AO disallowed 30% of site development, sales, administrative, and other expenses due to the assessee's failure to produce supporting evidence. The CIT(A) deleted this disallowance, noting that the AO did not bring any fresh material to establish that the appellant inflated expenditure. The Tribunal upheld the CIT(A)'s decision, finding no reason to disallow the expenses in the absence of concrete evidence from the AO.

5. Estimation of Income:
The Tribunal noted the complexity and reliability issues in the assessee's books of account and the special audit report. Considering the peculiar circumstances, the Tribunal decided to estimate the income at 8% of the sales, as determined by the special auditor. The Tribunal found this rate reasonable and in line with the presumptive rate under Section 44AD, even though the assessee's turnover exceeded the prescribed limit.

Conclusion:
The Tribunal allowed the assessee's appeals for statistical purposes and dismissed the revenue's appeals. The income was directed to be computed at 8% of the sales as determined by the special auditor, providing a balanced approach considering the complexity and reliability issues in the case.

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