2012 (10) TMI 349 - AT - Income Tax

Tribunal overturns CIT(A) orders, directs AO to accept assessee's returns, emphasizes consistent accounting methods.

Kashi Kanchan Construction Pvt. Ltd., Versus Deputy Commissioner of Income-tax, Berhampur.

The Tribunal allowed all the appeals of the assessee, setting aside the orders of the CIT(A). It directed the AO to accept the returns filed by the ... Applicability of AS-7 - project completion method – The change in accounting method - Assessee contended that the authorities below are not justified in adopting the percentage completion method for recognition of revenue on year to year basis, on the ground that the percentage completion method is not acceptable under the Income Tax Act, 1961, particularly when the same has not been denied under the Act. Held that:- CIT(A) misdirected himself to hold that the assessee was not a developer of real estate but merely a contractor. This fact was never observed by the Assessing Officer when he readily agreed to the proposition that a contractor cannot be subjected to tax on percentage method and the estimation was an advance against sales. Therefore, having contradicted their own findings the respective authorities have brought to tax the incomes which otherwise would have been rendered to tax by the assessee in respective AYs in accordance with the provisions of the I.T.Act that could not require any interference. - The impugned orders of the learned CIT(A) are set aside and Assessing Officer has to accept the returns as filed by the assessee in the respective AYs under consideration - Appeals of the assessee are allowed - in favour of assessee. Issues Involved:1. Rejection of Books of Accounts under Section 145.2. Determination and estimation of net profit.3. Adoption of Accounting Standards for revenue recognition.4. Opportunity for rebuttal before determination of net profit.5. Classification of the assessee as a Developer versus a Contractor.Issue-wise Detailed Analysis:1. Rejection of Books of Accounts under Section 145:The assessee challenged the rejection of its books of accounts under Section 145, arguing that no material defects were brought out in the books. The Assessing Officer (AO) had rejected the books based on discrepancies in labor charges and cash payments for materials. The Tribunal found that the AO's reasons were not justified, noting that the labor rates used by the assessee were for skilled labor, and the claimed labor charges were reasonable. The Tribunal also observed that the assessee maintained a work-in-progress register consistent with the project completion method, and the rejection of books was not on proper footings.2. Determination and Estimation of Net Profit:The AO determined the net profit at 7.2% of the advance receipts from allottees, which the assessee contested. The Tribunal noted that the AO had no grounds to estimate the net profit based on advances received, as these were not indicative of actual turnover. The Tribunal emphasized that the project completion method, consistently followed by the assessee, should be respected, and the net profit should be determined based on actual sales upon project completion.3. Adoption of Accounting Standards for Revenue Recognition:The AO and CIT(A) adopted Accounting Standard-7 (AS-7), applicable to contractors, instead of AS-9 (Recognition of Revenue) and AS-2 (Valuation of Inventories), which the assessee argued were appropriate for a real estate developer. The Tribunal agreed with the assessee, stating that AS-7 was revised and no longer applicable to real estate developers after 1-4-2003. The Tribunal held that the assessee's method of accounting, following AS-9 and AS-2, was correct, and income should be recognized upon project completion when flats were sold.4. Opportunity for Rebuttal Before Determination of Net Profit:The assessee contended that it was not given an opportunity to rebut before the AO determined the net profit at 7.2%. The Tribunal found that the AO's approach was unilateral and did not consider the assessee's consistent accounting method. The Tribunal directed the AO to accept the returns as filed by the assessee, which adhered to the project completion method.5. Classification of the Assessee as a Developer versus a Contractor:The CIT(A) classified the assessee as a construction contractor rather than a developer, influencing the adoption of AS-7. The Tribunal noted that the CIT(A) was biased and did not interpret the facts correctly. The Tribunal clarified that the assessee was a developer, not a contractor, and the project completion method was appropriate for revenue recognition.Conclusion:The Tribunal allowed all the appeals of the assessee, setting aside the orders of the CIT(A). It directed the AO to accept the returns filed by the assessee for the respective assessment years, adhering to the project completion method. The Tribunal emphasized the importance of consistent accounting methods and rejected the unilateral estimation of net profit by the AO.