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TMI Blog2015 (5) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... contesting the part allowance of its appeals against its assessments u/s. 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) for the relevant years by the Commissioner of Income Tax (Appeals)-1, Patna ('CIT(A)' for short). The Revenue is also in appeal for the first year. 2. The brief facts are that the assessee is a company in construction business, deriving income from civil construction work. Its income from the said business was assessed by the Assessing Officer (AO) at 8% of the contract receipt, i.e., subsequent to rejection of its books of account, invoking section 145(3) of the Act, to which there is no challenge. The same finding confirmation by the ld. CIT(A) in appeal, the assessee is in second appeal. 3. Befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit would vary from year to year depending on business conditions. The same, thus, rather than a disregard, is a regard of the order by the tribunal, and valid in law. The ld. counsel for the assessee, on the foregoing being observed by the Bench during hearing, would submit that the work-in-progress for the current year/s is the same as for A.Y.2003- 04, i.e., for which the profit stood finally assessed at 6%, i.e., pleads for identity of the facts and circumstances. This fact, i.e., assuming so, is nowhere borne out from the record, i.e., from the orders by the Revenue authorities. There is no mention of the different projects on which the profit stands returned, or even that are underway as at the year-end, in the order of the tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand or otherwise, or otherwise give opportunity of hearing to him, which would also depend on the materials furnished by the assessee in support of its claims, we do not consider it necessary to adjudicate the Revenue's appeal separately, which raises another aspect of the matter, i.e., allowance on depreciation. In this regard, we may clarify that allowance of depreciation, where and to the extent exigible, is a statutory allowance. The onus, therefore, to exhibit that its allowance stands made in assessing the net profit at the rate estimated, which is purely a matter of fact, is on the Revenue. Depreciation, besides being variable, is a statutory allowance, which has to be given effect to irrespective of the income for the year. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of issuing bank guarantee/s to secure contract work would be of no moment; the matter boiling down to the assessee proving its claims. Rather, as far as we see it, the assessee's argument, instead of promoting its case, goes against it. This is as the sums are stated to have been placed under deposit with the bank by way of margin, i.e., to enable availing non-fund credit from it by way of bank guarantee/s. The margin money, by necessary implication, would represent the assessee's capital/quasi capital. Would, one may ask, the bank extend fund based credit to a borrower to enable it to avail non-fund credit (from the bank), further jeopardizing, rather than securing, itself? That the immediate or apparent source of FDRs is the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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