MOHD. CONST. CO.,KOTA vs. ADDL. CIT, KOTA

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh dqy Hkkjr] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 649/JP/2013 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke M/s Mohd. Const. Co., The Addl. Commissioner of Vs. 5-B- 18 Vigyan Nagar, Income Tax, Kota. Range-1, C.R. Building, Kota. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AACFM 0470 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargieya (Advocate) jktLo dh vksj ls@ Revenue by : Shri Rajendra Jha (Addl. CIT)

lquokbZ dh rkjh[k@ Date of Hearing : 16/01/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 30/01/2017 vkns'k@ ORDER

PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of Ld. CIT(A), Kota dated 31.05.2013 for A.Y. 2006-07. The grounds of appeal taken by the assessee are as under:-

“1. That under the facts and circumstances of the case, the learned Assessing Officer has erred in invoking the provision of section 145(3) of the I.T. Act and in rejecting the Books of

2 ITA No.649/JP/2013_ M/s Mohd. Const. Co., Kota Vs. Addl. CIT, Range-1, Kota.

Accounts of the appellant and the ld. Commissioner of Income Tax (Appeals) has further erred by upholding the rejections of books of accounts.”

“2. That under the facts & circumstances of the case, the learned Assessing Officer has erred in assessing the Net Profit rate @ 11% on contract receipts (subject to interest & salary to partners and depreciation) and ld. Commissioner of Income Tax (Appeals) has further erred in confirming the addition of Rs.10 lacs that resulted into net profit rate of 10.64% (subject to salary, interest and depreciation).”

“3. That under the facts and circumstances of the case, the learned Assessing Officer has erred in disallowing of 10% of depreciation of jeep and car i.e. Rs.20,472/- considering that the same were incurred on personal use particularly under the circumstances that appellant firm has also paid Fringe Benefit Tax on the expenses incurred on depreciation of vehicle and also for the reason that the learned Assessing Officer has rejected the books of accounts and has applied a N.P. rate on gross contract receipts. The Hon’ble Commissioner of Income Tax (Appeals) also erred in dismissing the ground taken by the appellant.”

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under consideration the assessee has shown gross contract receipts of Rs.17,35,96,602/- and N.P. at Rs.1,74,62,945/- giving NP rate of 10.05% as against gross contract receipts at Rs.1,11,69,719/- and N.P. at Rs.11,19,15,160/- giving NP rate of 9.94% last year (before interest, Salary and Depreciation.

“I have carefully considered the written submission and objections of the assessee in respect of invoking of provision of section 145(3) of I.T. Act. The fact that the assessee is maintaining books of accounts, the books of accounts are audited u/s 44AB of I.T. Act, the books of account were produced during the assessment proceedings and the contract receipts are reconciled with the TDS certificates is not disputed. But the assessee has not filed any satisfactory explanation as regards to the fact that purchases of the material in the last week of the March, 2006 as the same were stated to be consumed. The assessee has simply stated that it will not significantly affect the profit. But the fact is that the assessee has shown purchase of material in the last days of the financial year and part of that material was in fact not used and it should have formed part of the closing stock. As this was not consumed, this cannot be claimed as an expenditure and therefore the profit shown by the assessee on the basis of such books of accounts

4 ITA No.649/JP/2013_ M/s Mohd. Const. Co., Kota Vs. Addl. CIT, Range-1, Kota.

were neither correct nor reliable. Another major defect in the books of account of the assessee was regarding un-verifiability of labor payment expenses which are at Rs.1,77,04,415/-. Admittedly the labor payment was claimed on the basis of labor registers/mustroll registers. Though the assessee has claimed to have maintained site wise detail of the labor payment but such payment was made in cash and the name and address of the recipients were also not complete. Due to such defects, these expenses were also not subject to proper verification. The Hon’ble Bombay High Court in the case of Basti Ram Narayan Das Maheshwari v/s CIT reported in 210 ITR 438 has held that non maintenance of day to day consumption register can lead to rejections of books of accounts according to the provision of section 145(3) of I.T. Act, 1961. In these circumstances the provision of section 145(3) are clearly applicable in the case of assessee. As regards application of the profit rate, it may be mentioned that the assessee is carrying out such business with heavy utilization of capital assets and that is the reason that the depreciation claim of the assessee is for Rs.34,31,532/-. Due to such capital investment, the assessee is deriving more economies of scale and profit rate should also be higher. The Hon’ble Rajasthan High Court in the case of M/s Jain Construction & Co. has upheld the NP rate of 12.5% in the business of civil construction. Similarly the Hon’ble Orissa High Court in the case of CIT V/s Builders Union 211 ITR 993 has also considered reasonable NP rate of 12.5% in the case of contractor. The following assesses of this Range carrying out the business of civil construction have also disclosed better profit rate subject to depreciation interest etc. as under:-

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Sl. Name of the A.Y. Total contract Net Profit Net No. Assessee receipts Profit @ 1. M/s Jain Enterprises 2006-07 Rs.9,60,64,093/- Rs.1,00,68,196/ 10.48% - 2. Sh. Harbans Lal 2006-07 Rs.24,27,14,639/- Rs.2,66,97,007/ 11% Sethi Prop M/s - Goodwill Advance construction Co., Kota.

Considering all the facts and circumstances mentioned above, considering the nature of business and work executed by the assessee and the GP rate shown in the comparable cases, the net profit rate is reasonable applied @ 11% on total contract receipt of Rs.17,35,96,602/- subject to salary, interest to partners and depreciation.

“I have gone through Assessing Officer’s findings, Assessee’s submission and also seen bills of March, 2006. The assessee has shown ‘NIL’ closing stock. The assessee received following payments during the month of March, 2006:-

Contract Receipt Period 23-03-2006 to 31-03-2006

6 ITA No.649/JP/2013_ M/s Mohd. Const. Co., Kota Vs. Addl. CIT, Range-1, Kota.

Sr. No. Date Site Amount 1. 23/03/2006 Sukli Selwara Irrigation Project 23,20,842.00 Escalation 2. 30/03/2006 Bandi Sandhra Irrigation Project 64,32,968.00 3. 30/03/2006 Sukli Selwara Irrigation Project 47,51,487.00 4. 30/03/2006 Galwa G-1 Irrigation Project 12,28,477.00 5. 30/03/2006 Galwa G-1 Irrigation Project 9,10,487.00 Escalation 6. 30/03/2006 Galwa G-2 Irrigation Project 1,84,966.00 Escalation 7. 30/03/2006 Bundi Ka Gothra Irrigation 14,18,639.00 Project 8. 30/03/2006 Bundi Ka Gothra Irrigation 10,33,834.00 Project Escalation 9. 31/03/2006 Sai Diversion Project 27,28,569.00

Bill Nos. 1 & 3 belonged to Sirohi Site, Bill No.2 belonged to Jalaore Site, Bill Nos. 4, 5 & 6 belonged to Tonk site, Bill No.7 & 8 belonged to Bundi Site and Bill No.9 belonged to Sumarpur Site.

It is a well known fact that for passing any bill, first of all a junior engineer enters the details of work done in a “Measurement Book (MB)” and thereafter it goes upto Executive Engineer/Superintending Engineer depending upon the quantum of bill. Normally this procedure takes 3 to 15 days. Therefore normally the work related to payment has to be completed 3 to 15 days before the release of payment.

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The following observations are worth mentioning:- i) The bills of Rs.10,33,834/- [Bundi Site] was related to escalation charges and not any new work done by assessee. ii) The bills of Tonk were dated 29/03/2006 and not 30.03.2006, out of these Sr. No. 5 & 6 were escalation bills and not related to any new work done by assessee. iii) Sr. No.3 [Sirohi Site] was also a price escalation bill [no work done]. iv) The Assessee purchased cement of Rs.466900/- from Jodhpur on 31.03.2006 on the bill it was written that the same was delivered on 30.03.2006. We all know that such a huge quantity cannot be consumed in a day. Moreover ever if it was consumed, cement takes at least 7 days for quarrying etc. and no bill can be prepared and passed on the same day. v) Cement of Rs.3,22,000/- was purchased on 31.03.2006, claimed to be delivered on 11/03/2006, no evidence of delivery was produced. vi) Cement of Rs.2,37,000/- was purchased on 31.03.2006, claimed to be delivered on 11/03/2006 on 18.3, 23.3, 25.3 & 26.3 to Sai dam. vii) Cement was purchased from J.K. Laxmi Cement Ltd., out of various bills, Bill No.5042441 [Rs.61,796/-], Bill No.5042442 [Rs.33,988/-], 5042449 [Rs.61,796/-], Bill No.5042450 [Rs.30,898/-], Bill No.5042452 [Rs.62,760/-]

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showed date of removal as 31.03.2006. The cement was to be delivered at Jalore. The last bill raised for this site was dated 30.03.2006 and there was no possibility that this cement could be used before it was removed from factory. viii) Cement was purchased from M/s Jain Commercial Corporation. Out of various bills, 2482 [Rs.80,000/-], 2487 [Rs.80,000/-] were dated 25.03.2006 and 26.03.2006. This cement was meant for Sirohi Site [Selwara dam]. ix) There was cash purchase of cement from Jain Commercial Corporation [each bill being less than Rs.20,000/-]. Total 35 bills between 22/03/2006 and 31/03/2006. This firm was situated in Sirohi. The last bill of Sirohi Site was dated 23.03.2006 and last bill of Jalor Site was 30.03.2006. so cement purchased on 31.03.2006 [5 bills of Rs.19,200/- each] cannot be consumed before raising the bill. x) Assessee has shown purchase of TMT Bars & M.S. Bars on 30.03.2006 from Kanpur for Sirohi Project. The last receipt from this site was dated 23.03.2006 and this steel cannot be consumed before 23.03.2006. [Total bills were of Rs.7,48,116/-]

Considering the above, I am of the firm opinion that assessee has shown excessive consumption of material. In view of above and the findings given by Assessing Officer, the rejection of books of accounts is upheld. The assessee has inflated the consumption of material by at

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least Rs.10 lacs. Therefore, I confirm addition of Rs.10 lacs. This results into N.P. rate of 10.64% subject to salary, interest and depreciation. The Assessing Officer is directed to delete balance addition of Rs.6,53,153/-.”

What is pertinent to note is that the AO has very categorically admitted in the assessment order as regards the fact of maintenance of complete books of account; that the same are audited; were duly produced before him and the contract receipts duly reconciled with the TDS certificates. The fact of claiming labour payments based on the labour registers, must roll registers and the fact of maintenance of site wise details of labour payment, were also duly admitted by the AO.

Thus, the only objection/basis of rejection of the accounts raised by the AO are that:

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i. the assessee has shown purchases of the material in the last days of the financial year, which is suspected not to have been consumed by the assessee and therefore, should remain as a part of the closing stock. Resultantly the profit to that extent should have gone up. ii. Payments were made in cash and the name & address of the recipients were not complete.

The ld. CIT(A) also confirmed the same alleging that the assessee has shown excessive consumption of material.

Firstly, we strongly rely upon the written submissions filed before the AO and the ld. CIT(A). The authorities below have completely ignored the practical difficulties and realities of the business and more particularly in the line of the Construction business, more particularly those reproduced in para (b) Justification for non maintenance of stock registers at pg 5 and 6 of the ld. CIT(A) order.

The facts are not denied that the appellant have been carrying on the business and also recording the transaction in the same method and manner this year, as was prevalent in the past. No closing stock/work in progress was shown this year for the reasons stated in the submissions before the AO and ld. CIT(A) and similarly, no opening stock was shown (or the closing stock of the immediate preceding year). Thus, increase or decrease of work in progress/closing stock is tax neutral. The Law is well settled that any increase or (decrease) in the closing stock of one

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year has to be given effect to opening stock of the succeeding year by increasing/decreasing the stock and any attempt made by the revenue on this account has always been considered tax neutral. The law is well settled on this aspect. Kindly refer Mahendra Mills Ltd. V/s PB Desai (1975) 99 ITR 355 (SC) [DPB 3-10] : V.K.J. Builders & Contractors (P) Ltd. vs. CIT (2009) 318 ITR 0204 (SC) [DPB 1-2], AO vs. Mass Buildtech (P) Ltd. in ITA No.666/JP/2009 dated 16.07.2010 & in Bridge & Roof Co. (India) Ltd. vs. CIT (2011) 338 ITR 15 (Cal), it was held as under:

“AO having rejected the changed method of valuation and determined the closing value of the work-in-progress for the Assessment Year 1986- 87 higher by adding back the adjustment for losses, it was incumbent upon him to follow the same principle in the subsequent years; mistake will appear from the record of the case and there is no question of entering into any new material for the purpose of detecting the said mistake.”

Directly on merits being in CIT vs. Krishna Gopal Kapoor & Sons (2010) 325 ITR 214 (All) [DPB 11-13] held as under:

“Accounts - Valuation of work in progress – Addition - Assessee carried on the business of real estate developers and, flat promoters-Assessee had adopted a consistent practice of not disclosing the work-in-progress while working its P&L-AO made an addition of Rs.5,47,000/- being the value of the work-in- progress- If the value of the work-in-progress is taken in the closing stock, the opening stock shall have to be adjusted in this

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assessment-Rate of profits shown by assessee reasonable- Tribunal was justified in upholding the deletion of value of goods used in work-in-progress.”

Hence, for the above reason and also for the reasons that because of the practical difficulties of the business and unavoidable compulsion on the part of the contractor to raise bills showing complete work done without being any work in progress/closing stock in hand, there is no justification for invoking of Section 145, also when this is not one of the reasons provided u/s 145.

As regards the allegations of cash payment, it is a matter of common knowledge that labourers demand cash payment and cannot wait for receiving cheque and realization thereof. Further, once admittedly detailed wages sheets and muster rolls etc. have been maintained, they contain all the necessary details. The payments are made through the labour contractors/supervisors therefore, such payment cannot be doubted and is not a good basis to invoke Section 145.

On the non maintenance of stock register the AO & ld. ICT(A) has not raised any objection and not made a finally basis of invoking Section 145 of the Act. Hence, invoking of Section 145 pleased by quashed.

5.1 On merits, alternatively and without prejudice to above submissions on merits, it was submitted that no addition at all was called for in view of the following facts and submissions:

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It is submitted that even invoking of Sec. 145 does not confer blind powers upon the AO and he is not at liberty to assess the income at whatever figure he wants. He is bound to make an honest estimation of income, keeping in view of the material available on record, past history of the case, local knowledge and repute of the assessee. He is also supposed to collect necessary material for the purpose, if so required. An arbitrary, capricious and wild estimation, as done in the present case, are not at all permitted in the eyes of the law. The legal position u/s 145 or u/s 144, for the purpose is the same. The law u/s 144 (or u/s 145) is well established to the effect that while making estimation, it is the best judgment, which the AO is required to take, by making an honest exercise on all direct/indirect evidences/available material.

However, it will appear that in the present case, the ld. Lower authorities have not made a fair estimation in conformity of the above settled judicial guideline.

It was submitted that the addition need not be made even if Sec. 145 is invoked. In the case of CIT v/s Gotan Lime Khaniz Udyog 256 ITR 243 (Raj.), it has been held that mere rejection of books of accounts need not necessarily lead to additions to the returned income. It was also held that the books of account, together with past history of the case as also material collected by the AO (of course, after confronting the assessee) should be considered for estimation of income.

In the present case, the authorities below on one hand have completely rejected the accounts u/s 145(3) however, have again fallen back on

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the same books of account. Similar situations have arisen when even after rejection of accounts additions/disallowances u/s 40A(3) or under other provisions were made. However, the Courts in several decisions have held that the moment accounts are rejected: ITO vs. Nardev Kumar Gupta (2013) 142 ITD 0303 (JP) wherein it was held that

“When assessee’s income was assessed by estimating profit after rejection of books of accounts, no disallowance can be made separately u/s 40A(3).”

Also Kindly refer CIT Vs Banwari Lal Banshidhar (1998) 229 ITR 229, 232 (All.), CIT vs. G.K. Contractor (2009) (PB 17-18) 19 DTR 305 (Raj.), Indwell Constructions v CIT (1998) (PB 14-16) 232 ITR 776 (AP), Maddi Sudarsanam Oil Mills Co. v/s CIT (1959) 37 ITR 369 (AP), ECI Engineering & Construction Co. Ltd. in ITA No.2048/Hyd/2011, Samurai Techno Trading Co. (P) Ltd. v/s CIT (2010) 37 DTR 386 (Ker.), ITO v/s Kenaram Saha & Subhash Saha (2008) 116 TTJ 289 (Kol.) (SB).

In this case the ld. CIT(A) made the estimation of NP @ 10.64% based on the adhoc addition on account of the alleged inflated consumption of material and thus again considered the same accounts already rejected, hence was not a good basis. The only course left after the rejection is a fair estimation taking relevant material into consideration and past history being the most relevant and binding material, could not have been ignored.

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In the past also similar situation had arisen however, estimation from this approach were never made. The rule of consistency therefore demand that the AO must not have departed from the settled practice on facts and in law both, between the parties, in absence of any new material or changed circumstances. Kindly refer UOI And Ors vs Major S.P. Sharma And Ors (2014) 6 SSC 351 (SC), CIT vs. J.K. Charitable Trust (2008) 220 CTR 105 (SC)/308 ITR 161 (SC), CIT v/s K.J. Business Centre (2009) 24 DTR 99 (Del.).

We may submit that past history has been held to be the best guide in the cases of fair estimation. Kindly refer CIT v/s Popular Electric Co. Pvt. Ltd. (1993) 203 ITR 630 (Cal.), MA Rauf v/s CIT (1958) 33 ITR 843 (Pat.). In CIT v/s Gupta K.N. Construction Co. (2015) 116 DTR 377 (Raj.) holding that where the results of the current year are better as compared to the past year then invariably no addition to be made. Also kindly refer Vaibhav Gems 112 DTR 84 (Raj.), to the same effect.

The appellant, this year declared NP rate of 10.05% as against 9.94% in the immediately preceding year i.e. A.Y. 2005-06 (before interest, salary & depreciation) and 6.88% & 2.84% after respectively, which is much better. Kindly refer the following chart: COMPARATIVE NP RATE (BEFORE INTEREST, SALARY, DEPRECIATION) A.Y. Gross Receipt Gross Profit NP Rate NP Rate (Rs.) (Rs.) (Before) (After) 2005-06 11,19,15,160/ 1,11,69,719/- 9.94% 2.84%

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2006-07 17,35,96,602/ 1,74,62,945/- 10.05% 6.88% 2004-05 5,74,59,801/- 2,01,76,083/- 5.66%

Further the declared NP rate was more than the comparable cases. Sec. 44AD though not technically binding yet containing a statutory estimation of NP rate of 8%, can also be a good guide for this purpose. Moreover the receipts have sharply increased from Rs.11 crores to a whopping Rs.17.36 crores. Despite such increase, the GP is much better. The overall performance is much better. Thus, keeping in mind the past history, no addition at all was warranted. Hence, the remaining addition be also deleted.

It was further submitted that disallowance of depreciation on vehicles is not warranted with the facts and merits of the case as depreciation being a statutory allowance and hence cannot be restricted on the basis of personal use as held in case of Triveni Pharma (2006) 35 Tax World 64 (JP) and also in Kailash Chand Gupta v/s DCIT 35 Tax World 36 (JP).

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been shown. However, necessary explanation regarding consumption of the material so purchased has been given by the assessee and the only explanation which has been furnished is that it will not significantly affect the profits as per the Assessing Officer as the assessee failed to provide necessary explanation regarding the purchase and consumption of material in the last week of March, 2006. It cannot be said that the said material was fully consumed. Therefore, this has resulted in excess claim of expenditure whereby the profits shown by the assessee was neither correct nor reliable. Further, the ld. CIT(A) has examined the matter and has given categorically finding giving specific instances where the material has been purchased on 31st March, 2006 and given that, it was held that there was no possibility that the material so purchased can be consumed in such a short period of time. During the course of hearing, the ld. AR has reiterated the submissions made before the ld. CIT(A) that the assessee has been recording the transaction in the same method and manner as was prevalent in the past. No closing stock, work in progress was shown this year and similarly no opening stock was shown. Thus, increase or decrease of work in progress, closing stock is tax neutral. The law is well settled that any increase or decrease in the closing stock of one year has to be given effect to opening stock of the succeeding year. We have given a careful consideration to the contentions raised by the ld. AR. However, we are unable to accept the same. The issue which has been raised by the Assessing Officer is that though the books of accounts have been maintained and audited at the same time, the assessee has failed to provide the necessary explanation regarding non-disclosure of closing stock out of material purchased at the fag end of the accounting year

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which has resulted in a situation where the profits cannot be determined correctly, where the material is purchased and consumed in the financial year, the same can be claimed as an expenditure. However, where the material is purchased and not consumed during the financial year, the same has to necessarily form part of the closing stock and to that extent it cannot be claimed as an expenditure. This is a well accepted accounting methodology which is followed for determination of true profits at the end of the year for tax purposes. What is therefore relevant is the books of accounts should be maintained in such a manner that the correct profits can be deduced therefrom. It is no doubt true that the closing stock of one year will form part of the opening stock of the next year, at the same time, the assessee has to determine and disclose its true and correct profit & loss situation for each year. The continuity of the transaction as well as the inter-connection between various transactions cannot be a basis to distort the state of affairs belonging to a particular financial year.

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the ld. CIT(A). The ld. AR has submitted that the assessee has declared NP rate of 10.05% as against 9.94% in the immediately preceding A.Y 2005-06 and submitted that where the results of the current year is better as compared to past year then no addition should be made. In the instant case, it is true that the books of accounts have been rejected at the same time, there has to be a fair estimation taking into consideration of relevant material as well as past history of the assessee. In the instant case, though no basis has been given by the Assessing Officer at the same time, the ld. CIT(A) after going through the purchases made by the assessee towards cement and TMT Bars and MS Bars has held that the assessee is inflated the consumption of material by at least Rs.10 lac. In our view, we find the observations of ld. CIT(A) to be fair, reasonable and based on specific material available on record which have not been controverted by the assessee.

Sd/- Sd/- (Kul Bharat) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 30/01/2017. *Sanjeev*. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- M/s Mohd. Const. Co. Kota.

20 ITA No.649/JP/2013_ M/s Mohd. Const. Co., Kota Vs. Addl. CIT, Range-1, Kota. 2. izR;FkhZ@ The Respondent- The A.C.I.T, Range-1, Kota. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File {ITA No. 649/JP/2013}

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