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2022 (1) TMI 682 - AT - Income TaxRevision u/s 263 - As per CIT action of the A.O. in granting depreciation and interest expenditure as deduction is not in accordance with provisions of section 44AD(2) - PCIT has also expressed the view that the dropping of penalty u/s 271A of the Act was clearly on a wrong appreciation - HELD THAT - Assessee furnished a reply dated 27.8.2018 contending that the CBDT has not prescribed books of accounts required to be maintained for the purpose of section 44AA read with Rule 6F(1) for civil contract works. The assessee also placed reliance on case of Sammurai Techno Trading Company Pvt. Ltd. 2009 (11) TMI 938 - KERALA HIGH COURT wherein it was held that even where books of accounts are not maintained, section 44AD percentage of 8 can be guideline for estimation of income from civil works though the section 44AD is not applicable A.O. again issued another notice dated 10.9.2018 u/s 142(1) of the Act, wherein he proposed to estimate income before interest and depreciation @ 10% of the turnover. Thereafter, the A.O. has completed the assessment estimating the gross income @ 10% of the turnover and allowed deduction of depreciation and interest. From the foregoing discussions, it can be noticed that the A.O. has applied his mind on the impugned issue and has taken a conscious decision to allow deduction of depreciation and interest after estimating gross income @ 10% of the gross receipts. We find merit in the contentions of the assessee that the AO has taken a plausible view in this matter and hence it cannot be considered to be prejudicial to the interest of the revenue. In the instant case, there are two views possible with regard to estimation of income from civil contract works and the assessing officer has taken a plausible view. Accordingly, we are of the view that the revision order passed by Ld. PCIT on this issue cannot be sustained. Accordingly, we set aside his order in directing the A.O. to do de-novo assessment. Dropping of penalty u/s 271A of the Act was on wrong appreciation of the judgement of the High Court - A.R. contended that the Ld. PCIT should have passed separate order on this issue. However, the Ld. A.R. did not cite any authority in support of his contentions. In any case we notice that the Ld. PCIT has given opportunity to the assessee in this regard. Accordingly, we do not find it necessary to interfere with observations made by Ld. PCIT on the second issue. Appeal of assessee partly allowed.
Issues Involved:
1. Validity of the revision proceedings initiated by the Ld. Principal CIT. 2. Estimation of income from civil contract works. 3. Allowance of depreciation and interest expenditure. 4. Dropping of penalty proceedings under Section 271A. 5. Non-initiation of penalty proceedings under Section 271B. Detailed Analysis: 1. Validity of the Revision Proceedings Initiated by the Ld. Principal CIT: The assessee challenged the revised order dated 30.3.2021 passed by the Ld. Principal CIT-3, Bengaluru, for the assessment year 2016-17, questioning the validity of the revision proceedings. The Principal CIT initiated revision proceedings under Section 263 of the Act, deeming the assessment order erroneous and prejudicial to the interests of the revenue. The Tribunal noted that the A.O. had applied his mind and taken a plausible view on the matter, following the precedent set by the Hon'ble High Court of Karnataka in the case of CIT Vs. P. Sudhakar. Consequently, the Tribunal found that the revision order on this issue could not be sustained. 2. Estimation of Income from Civil Contract Works: The A.O. noticed that the assessee had not maintained books of accounts for civil contract business and estimated the income before depreciation and interest at ?90,89,254/-. The A.O. proceeded to estimate the income at 10% of the gross contract receipts, resulting in an addition of ?22,72,313/- to the total income. The Tribunal observed that the A.O. had taken a conscious decision to estimate the income and allow deductions, which was a plausible view supported by the Hon'ble High Court of Karnataka in CIT Vs. P. Sudhakar. 3. Allowance of Depreciation and Interest Expenditure: The Ld. Principal CIT held that the A.O.'s action of granting depreciation and interest expenditure as deductions was not in accordance with Section 44AD(2) of the Act. The Tribunal, however, noted that the provisions of Section 44AD were not applicable to the assessee due to the turnover exceeding the prescribed limit. The Tribunal found that the A.O.'s decision to allow these deductions was a plausible view, supported by the Hon'ble High Court of Karnataka's decision in CIT Vs. P. Sudhakar. 4. Dropping of Penalty Proceedings under Section 271A: The Ld. Principal CIT observed that the A.O. had dropped the penalty proceedings initiated under Section 271A, accepting the decision of the Hon'ble High Court in CIT Vs. Babu Reddy. The Tribunal found that the Ld. Principal CIT should have passed a separate revision order on this issue but did not interfere with the observations made by the Ld. Principal CIT, as the assessee had been given an opportunity to respond. 5. Non-initiation of Penalty Proceedings under Section 271B: The Ld. Principal CIT noted that the non-initiation of penalty proceedings under Section 271B was another error leading to a loss of revenue. The Tribunal did not specifically address this issue but set aside the Ld. Principal CIT's order directing a de-novo assessment. Conclusion: The Tribunal partly allowed the appeal filed by the assessee, setting aside the Ld. Principal CIT's order on the issue of estimation of income and allowance of depreciation and interest expenditure. The Tribunal upheld the observations made by the Ld. Principal CIT regarding the dropping of penalty proceedings under Section 271A.
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