2012 (7) TMI 495 - AT - Income Tax

Tribunal rejects AO's NP rate, expenditure disallowance, directs acceptance of audited books for assessment

The Tribunal set aside the Assessing Officer's estimations of the Net Profit (NP) rate and disallowance of expenditures, ruling them as based on mere ... Challenging taxation of undisclosed income under the provisions of Section 143(3)/153A - Held that:- As the books of account have been maintained and duly certified having been verified by the auditors who have been authorized by the provisions u/s 44AB to submit a report certifying that the books of account were verified which books resulted in computing the returned income by the assessee as per the balance sheet and P & L account annexed with the report the CIT(A) upholding the contention of the AO on having invoked the provisions of Section 145 actually had no basis - AO has accepted the Net Profit as returned by the assessee but at a higher rate which rates has no basis for enhancement insofar as the gross margin on a turnover is directly related to the sales and the expenditures claimed leading to holding of stock which valuation has not been disputed by the AO. This indicates that all the facts remaining the same, the AO has not estimated the enhanced NP on sound footings - Disallowance of expenditures claimed u/ss.30 to 37 therefore leave no meaning to consider the NP insofar as the AO has not resorted to tinker with the gross profit rate - to proceed simultaneously u/s.143(3)/153A is defective to the extent that the AO cannot roll back from the very facts for computation of income of the assessee for the purpose of his enhancing the income - in favour of assessee. Issues Involved:1. Taxation of undisclosed income under Section 143(3)/153A.2. Estimation of Net Profit (NP) rate by the Assessing Officer.3. Disallowance of expenditures by the Assessing Officer.4. Initiation of penalty proceedings under Section 271A.5. Validity of books of account and audit reports.Issue-wise Detailed Analysis:1. Taxation of Undisclosed Income under Section 143(3)/153A:The appeals concern the taxation of undisclosed income under the provisions of Section 143(3)/153A following a search and seizure operation under Section 132. The learned Counsel for the assessee argued that no incriminating material was found during the search that could justify the taxation of undisclosed income. The returns filed under Section 153A were similar to those filed under Section 139(1), and the Assessing Officer's attempt to enhance the NP rate lacked corroborative evidence.2. Estimation of Net Profit (NP) Rate by the Assessing Officer:The Assessing Officer estimated the NP rate at 2% without assigning any reason or basis for this estimation, which was higher than the NP rate of 1.24% to 1.76% returned by the assessee firms. The learned Counsel for the assessee argued that this enhancement was in violation of Section 153A and lacked any specific defects in the books of account. The learned CIT(A) upheld the Assessing Officer's estimation, stating that the Assessing Officer was within his right to reassess the total income under Section 153A.3. Disallowance of Expenditures by the Assessing Officer:The Assessing Officer disallowed certain expenditures, such as 20% of the freight charges in one case, without assigning any reason. The learned Counsel for the assessee argued that the disallowance of expenditures was not justified, especially when the turnover and purchases were accepted. The NP was computed after paying the working partners' salary and interest on the capital contributed by the partners, which were not disallowed by the Assessing Officer.4. Initiation of Penalty Proceedings under Section 271A:The Assessing Officer initiated penalty proceedings under Section 271A for non-maintenance of proper books of account. The learned Counsel for the assessee argued that the firms were subject to audit under Section 44AB, and the auditors had verified the books of account. Therefore, the initiation of penalty proceedings was not justified. The learned CIT(A) upheld the Assessing Officer's action, stating that the books of account were incomplete.5. Validity of Books of Account and Audit Reports:The learned Counsel for the assessee argued that the books of account were duly certified by auditors under Section 44AB, and the auditors had verified the correctness and completeness of the accounts. The learned CIT(A) upheld the Assessing Officer's rejection of the books of account under Section 145, stating that the books were incomplete or improper. The Tribunal found that the audited figures of turnover, expenditures, and NP rate were inscribed in the books of account, and the Assessing Officer's estimation lacked a sound basis.Conclusion:The Tribunal concluded that the estimation of NP rate and disallowance of expenditures by the Assessing Officer were based on mere surmises and conjectures. The audited books of account, which were verified by the auditors, should be accepted. The Tribunal set aside the orders of the learned CIT(A) and directed the Assessing Officer to accept the returned income as filed by the respective assessees for the purpose of assessment under Section 143(3)/153A. All the appeals filed by the respective assessees were allowed.