2016 (12) TMI 448 - AT - Income Tax

Estimation of profit - profit element is to be determined from the gross profit - Held that - It is not disputed by the revenue that in earlier year the Tribunal in assessee s own case pertaining to A.Y. 2008-09 had restricted the disallowance to the extent of net profit rate at 8% subject to allowance of depreciation and interest. In the year under consideration we find that the AO has pointed out reduction of hire charges expenditure. This fact is not rebutted by the assessee, hence this reduction of expenditure would certainly increase the profit margin of the assessee. As per the AO, in the assessment year 2008-09 the assessee had incurred hire charges expenditure of ₹ 45,62,140/- whereas hire charges incurred in the present year is ₹ 80,000/-. The assessee has not brought on record any material suggesting that the hire charges were paid on account of non functioning of the assessee s own machinery. Therefore, we deem it proper to restrict the disallowance @ 10% of the Net Profit subject to interest and depreciation keeping in view the fact in earlier year s net profit as estimated by the Coordinate Bench @ 8% subject to allowance of depreciation and interest. Addition u/s 68 - Held that - Once the book results are rejected by invoking provisions of section 145(3) of the Act, no separate additions could be made under section 68. As decided in CIT vs. G.K. Contractor 2009 (1) TMI 840 - RAJASTHAN HIGH COURT even if the assessee has failed to discharge his onus of proof in explaining the cash credits shown in the books of account as market outstanding , the AO having estimated the higher profit rate on total contract receipts after rejection of the books of account invoking the provisions of s. 145(3), no separate additions can be made on account of unexplained cash credit under s. 68 of the Act of 1961

Summary

Issues Involved:
1. Estimation of income and application of Net Profit (N.P.) rate.
2. Disallowance of material and labor expenses.
3. Addition under Section 68 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Estimation of Income and Application of Net Profit (N.P.) Rate:
The primary contention was whether the Assessing Officer (AO) erred in not properly estimating the income by applying an appropriate N.P. rate, which is a settled methodology for estimating the income of civil contractors. The AO had rejected the books of account and estimated the profit by applying a Net Profit rate of 12.88%, resulting in an addition of ?74,50,155/-. The assessee argued that once the books of accounts are rejected under section 145(3) of the Act, the assessment should be made under section 144 based on the past history of the assessee or similarly situated businessmen. The assessee's counsel cited the Hon’ble Jurisdictional High Court's judgment in Inani Marbles (P) Ltd. and previous Tribunal decisions which consistently upheld a Net Profit rate of 8% subject to interest and depreciation. The Tribunal found that the AO's estimation involved some guesswork but should not be purely based on guesswork. The Tribunal noted that the AO had pointed out a significant reduction in hire charges, which was not rebutted by the assessee, thus justifying an increased profit margin. Consequently, the Tribunal restricted the disallowance to 10% of the Net Profit subject to interest and depreciation, considering the facts of the earlier years.

2. Disallowance of Material and Labor Expenses:
The AO disallowed a sum of ?74,50,155/- out of material and labor expenses due to non-maintenance of supporting vouchers and registers for labor payments and stock. The assessee contended that the nature of their business, which involved working at different far-off locations, made it difficult to maintain such records. The Tribunal acknowledged the practical difficulties faced by the assessee but upheld the AO's decision to reject the books of account due to the lack of verifiable records. However, the Tribunal moderated the AO's estimation by applying a more reasonable Net Profit rate of 10% subject to interest and depreciation, rather than the AO's higher rate.

3. Addition under Section 68 of the Income Tax Act, 1961:
The AO made an addition of ?48,34,995/- under Section 68, which pertains to unexplained cash credits. The assessee argued that once the book results are rejected, no separate additions could be made under Section 68, citing several judicial precedents including the Hon’ble Jurisdictional High Court's judgment in CIT vs. G.K. Contractor. The Tribunal agreed with the assessee's contention, noting that the AO had already estimated higher profits after rejecting the books of account. It held that making a separate addition under Section 68 would be inconsistent with the estimation of profits. Consequently, the Tribunal set aside the order of the CIT (A) and allowed the ground in favor of the assessee.

Conclusion:
The Tribunal partly allowed the appeal, modifying the AO's estimation of profit by applying a Net Profit rate of 10% subject to interest and depreciation, and setting aside the separate addition under Section 68. The decision emphasized the need for reasonable estimation based on past history and the impracticality of making further additions once the books of account are rejected.