2025 (4) TMI 976 - AT - Income Tax

Rejection of books of accounts - Estimating of net profit - CIT(A) directed to estimate profit before depreciation @ 10.32% subject to depreciation except depreciation on fixed assets claimed to be added during the year under consideration - Disallowance made u/s 40a(ia) by appellant as the TDS amount was deposited delayed and based on the provisions of law the same would have to be disallowed while making the computation of income and would be claimed only in the year of payment - HELD THAT - Since the said amount stands already included in the income while making the computation of income there is hardly any need to make any comment on the same and to draw any adverse inference on the basis of the same. If the books of accounts are rejected and net profit is estimated by application of net profit rate there cannot be again addition on account of any disallowance based on the same set of books of accounts. Here we note that the books of accounts were rejected and net profit rate was applied. Thus having accepted the fact of rejection of book results making separate addition from the same set of books is incorrect. The issue raised in this year also prevailed in the earlier year wherein no separate addition were made in relation to payments for default of section 40a(ia) while estimating the income even by the AO himself. Thus taking a different stand in the current year is not only bad in law but is also unjustified on the facts. As is available from the above finding that while allowing the grounds of appeal of the assessee ld. CIT(A) has considered the decision of the ITAT in the case of the assessee s case and has accordingly allowed the grounds of appeal. The ld. DR did not demonstrate any contrary decision having binding precedent and therefore we do not find any merit in the grounds of appeal raised by the revenue and therefore ground no. 2 3 raised by revenue has no merit and therefore dismissed. Excluding amount from turnover of the assessee for determining GP 29.29% whereas the above amount was shown by assessee itself in its ITR under the had other income in P L account so it is part of business receipts along with amount from revenue from operations shown by assessee and holding that this amount as un- accrued income when the assessee itself has shown the same as part of income in its ITR - When the book results were rejected while estimating the profit only the real income be taxed and not the notional income. While deciding this issue the ld. CIT(A) has considered the issue that there is no finality about the income and the estimated income is accrued at once subject to correction when the amount is agreed upon. If the amount is litigated however even though liability is admitted it has been held that income does not accrue until the litigation is finally terminated. But if liability is not admitted income does not arise from mere accrual of a cause of action. The income may not be accrued until a settlement is made or if the claim is litigated until all possible appeals have been taken or the liability has become final by the expiration of time to appeal from a judgement for the taxpayer and that too when book results are rejected and at that point of time only the real income be taxed and not the litigated income be considered while estimating the income. In the light of this observation we do not find any infirmity in the finding of the ld. CIT(A) and therefore ground no. 4 raised by the revenue stands dismissed. CIT(A) in excluding amount from turnover of the assessee for determining GP @ 29.29% when the assessee failed in the appellate proceedings to explain the difference in amount shown in form 26AS and amount credited in books of accounts - As is evident from the finding of the CIT(A) has favored the assessee on two reasons one the similar issue was raised in the A.Y. 2016-17 and the ld. AO accepted the explanation of the assessee and the matter has reached to finality as the appeal before the High Court was not considered. Secondly CIT(A) has considered the explanation of the assessee and hold that difference stands explained and no adverse inference drawn. Before us the ld. DR did not demonstrate any perversity in the explanation of the assessee and finding of the ld. CIT(A) and therefore we do not find any merits in the ground raised by the revenue and the same stands dismissed. Estimating net profit @0.11% - AO has categorically held that 70% of expenses not subject to TDS are not genuine and this disallowance (70%) was included in the estimated addition by applying N.P. rate of 10.32% - As is evident from the above order of the ld. CIT(A) that he has followed the order of the co-ordinated bench which ultimately reached finality when challenged before our Jurisdictional High Court and therefore when the ld. DR did not demonstrate before us as to how we can deviate from the binding precedent when the ld. CIT(A) has compared the finding of the earlier year with that of the current year comes to loss and in that year of A. Y. 2016-17 being loss and based on the order of the co-ordinate bench applied the profit rate @ 0.11%. Thus as discussed in the order of the ld. CIT(A) and no contrary material before us to take a difference view of the matter we do not find any infirmity in the finding of the ld CIT(A). Based on these observation ground no. 1 raised by the revenue stands dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in the appeal are:

- Whether the Commissioner of Income Tax (Appeals) was justified in estimating net profit at 0.11% by applying the net profit rate of 10.32% from the preceding year and ignoring the Assessing Officer's finding that 70% of expenses amounting to Rs. 46,25,75,450/- were not genuine and disallowed.

- Whether the deletion of addition of Rs. 13,87,72,635/- made under section 40(a)(ia) of the Income Tax Act, which was disallowed by the assessee itself, was justified and whether such disallowance should be included in the estimation of net profit.

- Whether the net profit estimation should have separately considered the disallowance under section 40(a)(ia) and the disallowance of Rs. 32,38,02,815/- for non-genuine expenses, and whether reliance on earlier judicial decisions for the assessee's prior assessment years was appropriate despite distinguishable facts.

- Whether the exclusion of Rs. 1,72,77,91,273/- shown as "other income" in the Profit & Loss account from turnover for determining gross profit at 29.29% was justified, given that the assessee itself included this amount in its Income Tax Return.

- Whether the exclusion of Rs. 73,98,982/- from turnover for determining gross profit was justified when the assessee failed to explain discrepancies between amounts shown in Form 26AS and books of account for specific parties.

- Whether the tax effect involved exceeded the threshold laid down in CBDT Circular No. 17/2019 dated 08.08.2019.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Estimation of Net Profit Rate and Treatment of Disallowed Expenses

Legal Framework and Precedents: Under section 145(3) of the Income Tax Act, the Assessing Officer (AO) may reject the books of account if they are not reliable and estimate income accordingly. The AO estimated net profit at 10.32% based on preceding years' results. Judicial precedents and CBDT circulars provide that when books are rejected, income estimation may be made by applying gross or net profit rates from preceding years, allowing for peculiarities such as interest and depreciation.

Court's Interpretation and Reasoning: The AO rejected the assessee's books due to defects such as non-substantiation of expenses, lack of supporting vouchers, and unverifiable stock and trade payables. The AO applied a net profit rate of 10.32% on total receipts including contract receipts, claims, and undisclosed contract receipts. The AO also disallowed depreciation claimed for unsubstantiated fixed assets additions.

The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the rejection of books but modified the estimation by applying the gross profit rate of 29.29% from the immediately preceding year (AY 2016-17), allowing 80% of employees' benefit and administrative expenses, and permitting deductions for interest and depreciation, except depreciation on unsubstantiated assets. CIT(A) relied on judicial decisions and prior orders of the Tribunal and High Court affirming such treatment.

Key Evidence and Findings: The AO found that the assessee failed to provide adequate details for expenses, stock valuation, and trade payables, and admitted to disallowing Rs. 13.87 crore under section 40(a)(ia) for non-deduction of tax at source (TDS). The assessee's gross profit rate in the year under consideration was negative (loss), whereas the preceding year showed a gross profit of 29.29%. The CIT(A) considered the gross profit rate of the preceding year more appropriate given the defects in books.

Application of Law to Facts: The rejection of books was justified due to non-compliance and lack of verifiable evidence. The estimation of income by applying a gross profit rate from the preceding year, allowing for reasonable deductions, was consistent with legal principles and precedents. The CIT(A)'s approach balanced the need for estimation with fairness to the assessee.

Treatment of Competing Arguments: The revenue argued that the AO's estimation and disallowance of expenses were justified and that CIT(A) erred in deleting certain additions. The assessee contended that the estimation should allow deductions for interest and depreciation and that disallowance under section 40(a)(ia) should not be separately added when income is estimated. The CIT(A) accepted the assessee's submissions supported by judicial precedents.

Conclusion: The CIT(A)'s approach to estimate net profit at 0.11% (based on adjusted gross profit rate from the preceding year) allowing deductions for interest and depreciation except on unsubstantiated assets, and rejecting separate addition under section 40(a)(ia), was upheld as justified and reasonable.

Issue 2 & 3: Deletion of Addition under Section 40(a)(ia) and Its Inclusion in Estimation

Legal Framework and Precedents: Section 40(a)(ia) mandates disallowance of expenses where tax is not deducted at source as required. However, when income is computed on an estimated basis after rejection of books, judicial decisions and CBDT circulars clarify that no separate disallowance under section 40(a)(ia) should be made since the estimation covers all income and expenses.

Court's Interpretation and Reasoning: The assessee had itself disallowed Rs. 13.87 crore under section 40(a)(ia) in the computation of income. The CIT(A) held that since the books were rejected and income was estimated by applying a net profit rate, making a separate addition for the same disallowance was incorrect and unjustified. CIT(A) relied on prior orders of the Tribunal and judicial pronouncements confirming this principle.

Key Evidence and Findings: The AO had made separate addition of Rs. 13.87 crore despite the assessee's self-disallowance. The CIT(A) noted that in the preceding year's assessment, no such separate addition was made when income was estimated similarly.

Application of Law to Facts: The principle that no double addition should be made when income is estimated by rejecting books was applied. The disallowance already reflected in the computation should not be added again.

Treatment of Competing Arguments: The revenue contended that the addition was justified, but failed to produce binding contrary authority. The assessee's submissions and judicial precedents were accepted.

Conclusion: The deletion of the separate addition under section 40(a)(ia) was justified and upheld.

Issue 4: Exclusion of Rs. 1,72,77,91,273/- from Turnover for Gross Profit Computation

Legal Framework and Precedents: Income accrual principles require that only real and accrued income is taxable. Notional or disputed claims do not constitute income until finally accepted or settled. The income tax law recognizes that income arising from litigated or disputed claims accrues only upon final adjudication or settlement.

Court's Interpretation and Reasoning: The amount of Rs. 1,72,77,91,273/- was shown by the assessee as "other income" and in the audited financials as "claims" against parties, supported by litigation documents and correspondence. The CIT(A) held that such unilateral and disputed claims do not give rise to accrued income and cannot be considered as part of turnover for applying gross profit rate. The AO's treatment to include this amount in turnover for estimation was thus incorrect.

Key Evidence and Findings: The assessee filed suit documents and letters evidencing the disputed nature of the claims. No final liability or acceptance by the opposing parties existed. The CIT(A) relied on settled legal principles regarding accrual of income in disputed claims.

Application of Law to Facts: Since the claims were disputed and litigated, income was not accrued in the year under consideration. Thus, such amount was excluded from turnover for gross profit computation.

Treatment of Competing Arguments: The revenue argued that since the amount was shown in the ITR, it formed part of business receipts. The CIT(A) rejected this, emphasizing the difference between notional and accrued income.

Conclusion: The exclusion of the disputed claims from turnover was justified and upheld.

Issue 5: Exclusion of Rs. 73,98,982/- from Turnover for Gross Profit Computation Due to Discrepancies

Legal Framework and Precedents: Accurate reconciliation between Form 26AS and books of account is necessary. Unexplained discrepancies may lead to additions or disallowances.

Court's Interpretation and Reasoning: The CIT(A) noted that the assessee failed to adequately explain differences between amounts shown in Form 26AS and books for specific parties. However, similar discrepancies in the preceding year were accepted without adverse inference. The CIT(A) found the explanation for the difference related to advances and timing differences acceptable, and no addition was warranted.

Key Evidence and Findings: The assessee submitted reconciliation charts and explanations attributing differences to advances and timing. The CIT(A) considered these reasonable.

Application of Law to Facts: Given the prior acceptance of similar discrepancies and reasonable explanations, exclusion from turnover was appropriate.

Treatment of Competing Arguments: The revenue challenged the exclusion, but no sufficient basis to overturn prior acceptance was demonstrated.

Conclusion: The exclusion of Rs. 73,98,982/- from turnover was justified and upheld.

Issue 6: Tax Effect and Applicability of CBDT Circular No. 17/2019

This issue was raised but not elaborated upon in the order. It was noted that the tax effect was above the threshold prescribed in the Circular. No separate adjudication was recorded.

3. SIGNIFICANT HOLDINGS

- "If the books of accounts are rejected, and net profit is estimated by application of net profit rate, there cannot be again addition on account of any disallowance based on the same set of books of accounts." This principle was applied to disallow separate addition under section 40(a)(ia) when income is estimated.

- The Court emphasized the distinction between notional and accrued income: "Income may not be accrued until a settlement is made or if the claim is litigated until all possible appeals have been taken or the liability has become final by the expiration of time to appeal from a judgement for the taxpayer." Hence, unilateral disputed claims cannot be included in turnover for income estimation.

- The Court held that in cases of rejection of books, estimation of income should be based on gross profit rates from preceding years, adjusted for verifiable expenses such as interest and depreciation, recognizing the peculiar facts of each case.

- The Court observed that the assessee's gross profit rate in the year under consideration was negative, whereas the preceding year showed a gross profit of 29.29%; thus, applying the preceding year's gross profit rate was reasonable for estimation.

- The Court noted that the assessee's failure to provide adequate documentary evidence for expenses, stock, and payables justified rejection of books under section 145(3).

- The Court confirmed that interest income earned on margin money and security deposits, being incidental to business, is taxable as business income and should be considered in income estimation accordingly.

- The Court dismissed the revenue's appeal and upheld the CIT(A) order allowing the assessee's appeal in part, directing the AO to assess income at Rs. 30,26,869/- and delete other additions.