Income Tax Appellate Tribunal - Jaipur
Banas Sand Toll Tax Collection, Jaipur vs Department Of Income Tax on 9 October, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM
vk;dj vihy la-@ITA No. 1028/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2009-10
Income Tax Officer, cuke M/s Banas Sand Toll Tax
Ward 2(3), Jaipur. Vs. Collection JV, 5A, Bajor House,
Hawa Sadak, Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AAFFB 2873 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri O.P. Bhateja (Addl. CIT)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.G. Mundra (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 30/09/2015.
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 09/10/2015.
vkns'k@ ORDER
PER T.R. MEENA, A.M.
This is an appeal filed by the revenue against the order dated 04/10/2013 of the learned C.I.T.(A)-1, Jaipur for A.Y. 2009-10. The effective grounds of appeal are as under:-
"(1) Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) has erred in allowing the depreciation when the income was computed by the A.O. by applying net profit rate of 25%.2 ITA No. 1028/JP/2013
ITO Vs M/s Banas Sand Toll Tax (2) Whether on the facts and in the circumstances of the case and in law the ld CIT(A) has erred in deleting the addition U/s 40(a)(ia) and 40A(3) when the assessee had himself disallowed the same in the computation of income filed with the return of income."
2. The first ground of the revenue's appeal is against allowing the depreciation when the income was computed by the A.O. by applying net profit rate of 25%. The assessee was engaged in collection of toll tax on behalf of Municipal Corporation Delhi and providing space for advertisement. The assessee filed return on 30/09/2009 at loss of Rs. 23,72,020/-. The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The ld Assessing Officer observed that during the year under consideration, the contract was only for 1½ months. The assessee had shown net loss of Rs. 1,97,57,400/- on total turnover of Rs. 1,03,58,467/- with N.P. rate of (-) 190.74% in comparison to N.P. rate of 23.38% shown in the preceding year i.e. 2008-09. The ld Assessing Officer gave reasonable opportunity of being heard on this issue, the assessee replied from time to time and justified the reasons for decline of net profit rate but the ld Assessing Officer observed that most of expenses were made in cash and not subject to verification, staff welfare expenses, vouchers amounting to Rs. 34,558/- 3 ITA No. 1028/JP/2013
ITO Vs M/s Banas Sand Toll Tax are self made and without any supporting evidence. As per para 17(b) of the audit report, it was mentioned by the auditor that element of personal expenses in petrol and diesel expenses and staff welfare expenses were not ascertainable. Therefore, the ld Assessing Officer after giving reasonable opportunity of being heard, rejected the books result and considering the past history of the case, net profit rate @ 33.56% was applied in A.Y. 2008-09, nature of the business, facts and circumstances of the case, net profit rate of 25.00% has been applied in the year under consideration. By applying this rate, net profit of the assessee firm business of toll collection and holding rent was computed at Rs. 25,89,617/- but not allowed any deduction from it.
3. This addition was challenged before the ld CIT(A), who had confirmed the addition. However, he held that the ld Assessing Officer had not mentioned anything about claim of depreciation. As held by the Hon'ble Rajasthan High Court in the case of CIT Vs. Jain Construction Co. (2000) 245 ITR 527 (Raj) as well as in the CBDT circular, depreciation has to be worked out and allowed separately in case of rejection of books of account and estimation of net profit. Accordingly, 4 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax the ld CIT(A) allowed the deprecation after confirming the net profit rate.
4. Now the revenue is in appeal before us. The ld DR has vehemently supported the order of the Assessing Officer and argued that this addition was not subject to any depreciation. Any income determined by the Assessing Officer is presumed to be allowed on expenses including statutory deductions i.e. depreciation. Therefore, the same is to be confirmed.
5. At the outset, the ld AR of the assessee has reiterated the arguments made before the ld CIT(A). The assessee firm claimed depreciation of Rs. 1,25,79,135/- in the return of income filed adopting the written down value of assets as per last assessment year. The ld Assessing Officer did not discuss this issue in assessment order nor allowed the depreciation as claimed. It is submitted that in A.Y. 2008-09 while NP rate as in this year was applied the claimed depreciation was allowed by A.O. in the assessment order. It is settled law that even if N.P. rate is applied the deprecation is an admissible statutory deduction under Board's Circular No. 29D(XIX) of 1965, dated 31/08/1965 where income is proposed to be computed by applying a flat rate and the 5 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax assessee has furnished the prescribed particular for the claim in respect of depreciation, the depreciation should be allowed separately and deducted out of the gross profits. No provision under the Act has been brought to notice which makes the claim of depreciation inadmissible where the income is computed by applying the flat rate- CIT Vs. Bishambhar Dayal & Co. (1994) 74 Taxman 123 (All.). The similar view was taken by the Hon'ble Rajasthan High Court in the case of CIT Vs Jain Construction (supra) holding that in a case of rejection of accounts and estimate of net profit, depreciation is required to worked out and allowed separately. These judicial decisions have since been followed in various High court and ITAT decisions. In view of the above the assessee is entitled to the claimed depreciation of Rs. 1,25,79,130/- from income computed. Therefore, he prayed to allow the deduction from net profit estimated by the Assessing Officer.
6. We have heard the rival contentions of both the parties and perused the material available on record. The ld Assessing Officer applied net profit rate but not allowed depreciation during the year under consideration. The ld counsel's arguments are not substantiated with the copy of assessment filed by the AR for A.Y. 2008-09 where 6 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax trading additions were made, Rs. 1,41,12,772/- no separate deduction on account of depreciation was allowed. The assessee already claimed the depreciation in returned income, therefore, the ld Assessing Officer had not allowed the separate deduction on account of depreciation separately. IN A.Y. 2009-10, the ld Assessing Officer allowed the depreciation separately from the estimated income U/s 43(3) of the Act. The case law relied upon by the assessee i.e. CIT Vs. Jain Construction (supra) is squarely applicable wherein it has been held that in case of rejection of books of account of the firm and income estimated, the depreciation is allowable separately by considering the CBDT circular No. 29D(XIX) of 1965 dated 31/8/1965 wherein it has been provided that net profit rate is subject to allowance of depreciation and the depreciation allowance should be deducted therefrom. Therefore, we uphold the order of the ld CIT(A).
7. The 2nd ground of the revenue's appeal is against deleting the addition made U/s 40(a)(ia) and 40A(3) of the Act. The ld Assessing Officer observed that notwithstanding computation of the assessee's income by applying net profit rate, the cash payments made in violation of provisions of Section 40A(3) in the sum of Rs. 81,861/- and 7 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax disallowance U/s 40(a)(ia) in the sum of Rs. 62,15,115/- were made separately.
8. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld CIT(A), who had deleted the addition by observing as under:-
"I have considered facts of the case. It is noted that the A.O. has determined income of the appellant by applying NP rate of 25%. The A.O. has further observed that "Notwithstanding computation of assessee's income by applying NP rate, the cash payments made in violation of provisions of Section 40A(3) in the sum of Rs. 81,861/- and disallowance U/s 40(a)(ia) in the sum of Rs. 62,15,115/- are made separately." Nothing specific has been mentioned by the A.O. as to why these disallowances were being made when the income has been determined by applying NP rate, after rejecting the books of account. Since the books of account have been rejected and income has been estimated by applying NP rate, there does not appear to be any justification for further disallowance under these sections. These disallowances, therefore, appear to be uncalled for and are, accordingly, deleted."8 ITA No. 1028/JP/2013
ITO Vs M/s Banas Sand Toll Tax
9. Now the revenue is in appeal before us. The ld DR has argued that these additions are deeming additions and had no relation with the income estimated on the basis of net profit rate. The ld DR has drawn our attention on the decision of Hon'ble Agra Bench of ITAT dated 21/11/2011 in the case of ITO 1(3), Agra Vs. Shri Ravi Dubey in ITA No. 228/Agr/2010 for A.Y. 2006-07 wherein it has been held that CIT(A) was not right where book having been rejected by invoking the provisions of Section 145(3) of the Act then separate disallowance U/s 40(a)(ia) of the Act is not tenable by relying the decision of Hon'ble Allahabad High Court, Lucknow Bench in the case of CIT Vs. Pradeshiya Industrial and Investment Corporation of U.P. Limited (2010) 325 ITR 583 (All.) by considering the Hon'ble Supreme Court decision in the case of Shree Sajjan Mills Limited Vs. CIT (1985) 156 ITR 585 (SC), therefore, separate addition made by the Assessing Officer is to be confirmed. Further he relied on the decision of Hon'ble Supreme Court in the case of CIT Vs. Devi Prasad Vishwanath (1969) 72 ITR 194 (SC) wherein deeming addition U/s 68 was made on account of cash creditor U/s 68 as well as income was estimated by rejecting the book result U/s 145(3) of the Act. The addition of cash creditors was confirmed by the Hon'ble Supreme Court under the income from other sources. He further relied 9 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax on the decision in the case of Kale Khan Mohammad Hanif Vs. CIT (1963) 50 ITR 1 (SC) wherein similar issue on deeming addition on account of cash creditor was held to be income from other sources and not as business income. He further relied on the decision of Hon'ble ITAT of Hyderabad Bench in the case of ACIT Vs. Mir Mazharuddin (2013) 35 Tasxmann.com 541 (Hyd. Trib) wherein the addition made U/s 68 in number of years when income is estimated by Assessing Officer, addition U/s 68 is permissible. He further relied on the decision in the case of CIT-1 Vs. G.S. Tiwari & Co. (2014) 41 Taxmann.com 17 (All) wherein the Hon'ble High Court has held that the addition U/s 68 on account of unexplained cash creditor and business estimated by rejecting the books of account, separate addition can be made. Therefore, he prayed to confirm the order of the Assessing Officer.
10. At the outset, the ld AR of the assessee has submitted that though the assessee firm itself made this disallowance in return of income while preparing statement of assessable income as per books of accounts. But not when Ld. A.O. rejected books of accounts and completed assessment by applying N.P. rate no separate addition U/s 40(a)(ia) can be made. This legal view has been sustained in various 10 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax judgments. In the case of Teja Construction Vs. ACIT (2010) 5 Taxman.com 61 (Hyd ITAT) the decision of Indwell Constructions Vs. CIT (1998) 232 ITR 776 (AP) was followed and it was held "that where income of the assessee having determined by resorting to estimation there is no scope for any further disallowance either in terms of Section 40(a)(ia)/40A(3) of the Act or otherwise. The recent judgment in which after considering various judgment on the issue the ITAT Cuttak Bench upheld the above legal view is ITO Vs. Sahdev Pradhan (2012) 18 ITR (Trib) 180 (Cuttack). He further argued on deletion of addition U/s 40A(3) of the Act that on the same analogy of law no disallowance U/s 40A(3) could be made when income is assessed on application of N.P. rate. He relied on the following decisions:
(i) CIT Vs. Purshottamlal Tamrakar Uchehra (2003) 184 CTR (MP) 349.
(ii) CIT Vs. Smt. Santosh jain (2007) 159 Taxman 392 (Punj & Har).
Recently the Jaipur Bench of ITAT, Jaipur Bench, Jaipur in the case of ITO Vs. Sadhwani Brothers (2011) 142 TTJ (UD) 26 has held that where Assessing Officer had rejected the books of accounts and had applied net profit rate for purpose of computing income no disallowance could have been made u/s 40A(3). In view of the above judicial 11 ITA No. 1028/JP/2013 ITO Vs M/s Banas Sand Toll Tax pronouncements, no disallowance could be made U/s 40(a)(ia) and 40A(3) of the Act when assessment is made computing income by application of NP rate. Thus, he prayed to confirm the order of the ld CIT(A).
11. We have heard the rival contentions of both the parties and perused the material available on the record. It is found that the various Hon'ble High Courts as well as ITAT has decided this issue against and in favour of the assessee. The Hon'ble Supreme Court in the case of CIT Vs. Vegetable Products Ltd. (1973) 88 ITR 192 (SC) has held that when two opinions has been formed by the Hon'ble High Court, the assessee's favourable opinion is to be applied. Therefore, we uphold the order of the ld CIT(A).
12. In the result, the revenue's appeal is dismissed. Order pronounced in the open court on 09/10/2015.
Sd/- Sd/-
¼yfyr dqekj½ ¼Vh-vkj-ehuk½
(Laliet Kumar) (T.R. Meena)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 09th October, 2015
Ranjan*
12
ITA No. 1028/JP/2013
ITO Vs M/s Banas Sand Toll Tax
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The ITO, Ward 2(3), Jaipur.
2. izR;FkhZ@ The Respondent- M/s Banas Sand Toll Tax Collection, Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 1028/JP/2013) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar