ITO, Ward - 30(4), Kolkata, Kolkata V. Shri Tushar Sen, Kolkata

ITA 1593/KOL/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 5571 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 09-08-2010
• Court: TRIBUNAL
• Department Lawyers: P KOLHE LD
• Assessee Lawyers: ABHIJIT BISWAS LD

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA () BEFORE . . , , SHRI D.K.TYAGI, JUDICIAL MEMBER. . !' /AND #..$, % , SHRI B.K.HALDAR, ACCOUNTANT MEMBER '& / I.T.A. NO. 1593/KOL/2010 '() !*+/ ASSESSMENT YEAR : 2004-05 INCOME-TAX OFFICER WARD 30(4), KOLKATA - !( - - VERSUS -. SRI TUSHAR SEN PAN : ALPP32848J (./ / APPELLANT ) (0.// RESPONDENT) ./ 1 2 / FOR THE APPELLANT: / SHRI P.KOLHE, LD.DR 0./ 1 2 / FOR THE RESPONDENT : / SHRI ABHIJIT BISWAS, LD. AR 3 / ORDER #..$, % , SHRI B.K.HALDAR, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS)-XIV, KOLKATA DATED 09-04-2010 FOR TH E ASSESSMENT YEAR 2004-05. 2. THE REVENUE HAS TAKEN FOLLOWING GROUND OF APPEAL :- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E ID. COMMISSIONER OF INCOME TAX-XIV, KOL. HAD ERRED IN LAW DELETING T HE ADDITION OF RS.21,40,711/- MADE ON ACCOUNT OF ESCAPED INCOME F ROM EXECUTION OF CONTRACT 3. THE ASSESSEE IS A CONTRACTOR. HE FILED RETURN DI SCLOSING TOTAL INCOME OF RS.5,32,920/- FOR THE RELEVANT ASSESSMENT YEAR, WHICH WAS ACCEPTED U/S.1 43(1) OF THE I.T.ACT61. SUBSEQUENTLY, THE ASSESSING OFFICER NOTED THAT AS PER TDS CERTIFICATE THE GROSS CONTRACT RECEIPTS WAS RS.1,09,64,328/- WHEREAS THE ASSESSEE IN THE P & L ACCOUNT DISCLOSED THE CONTRACT RECEIPTS OF RS.88,23,617/-. THE ASSESSING OFFICER, THEREFORE, REOPENED THE ASSESSME NT BY ISSUE OF NOTICE U/S.148 OF THE ACT. DURING T HE ASSESSMENT PROCEEDINGS, IT WAS SUBMITTED BY THE ASS ESSEE THAT AN AMOUNT OF RS.22,50,000/- WAS RECEIVED BY HIM AS ADVANCE ON ADHOC BASIS. IT WAS, THEREFORE , CONTENDED THAT CONTRACT RECEIPT OF RS. RS.88,23,617/- WAS RIGHTLY SHOWN BY HIM IN THE P & L ACCOUNT. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ABOVE CONTENTION OF THE ASSESSEE, EVEN T HOUGH IT WAS ACCEPTED BY HIM THAT 21,40,711/ - WAS SHOWN AS LIABILITY BY THE ASSESSEE, WHICH WAS INCL UDED IN ADVANCE OF RS.22,50,000/- RECEIVED BY THE ASSESSEE. ITA NO.1593/KOL/2010 2 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE L EARNED COMMISSIONER OF INCOME-TAX (APPEALS). 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE AMOUNT OF RS. 21,40,711 / - WAS NOT RIGHTLY SHOWN BY THE ASSESSEE AS CONTRACT RECEIPT AS THIS AMOUNT WAS INCLUDED IN RS.22,50,000/- RECEIVED BY HIM AS ADVANCE. HE, THEREFORE, DELETED THE ADDITION OF 21,40,711/- MADE BY THE ASSESSING OFFICER. 6. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 7. BEFORE US THE LD. DR HAS CONTENDED THAT IF THE SAID AMOUNT WAS RECEIVED BY THE ASSESSEE AS ADVANCE, CREDIT OF THE TDS DEDUCTED ON THE SAME COU LD NOT HAVE BEEN ALLOWED DURING THE RELEVANT ASSESSMENT YEAR. IT WAS CONTENDED BY HIM THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) SHOULD HAVE ISSUED SUCH DIRECTION WHILE GIVING TH E RELIEF TO THE ASSESSEE. 8. THE LD.AR FOR THE ASSESSEE, ON THE OTHER HAND, RELIED ON THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). 9. WE HAVE HEARD THE PARTIES AND PERUSED THE RECOR D. IT HAS NOT BEEN DISPUTED BY THE REVENUE THAT THE DISPUTED AMOUNT OF RS. 21,40,711/- WAS PART OF ADVANCE RECEIVED BY THE ASSESSEE AMO UNTING TO RS. RS.22,50,000/-. IN THIS VIEW OF THE MATTER, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AND CONFIRM TH E SAME. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. $ 3 %4 5 4( $6 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 22.0 -2010 SD/- SD/- (. . ), ( #..$ ), % , (D.K.TYAGI), JUDICIAL MEMBER. ) (B.K.H ALDAR, ACCOUNTANT MEMBER) (%) DATE :-10-2010 *PP / SR. PRIVATE SECRETARY : 3 1 0''7 87*9- COPY OF THE ORDER FORWARDED TO: 1. (./ / APPELLANT ) : INCOME-TAX OFFICER, W 30(4), 2 GARIAHAT RD(S), K OL-68. 2. ( 0.// RESPONDENT) : SRI TUSHAR SEN 19 JATIN DAS ROAD, KO L-29. 3. '3( ( )/ THE CIT(A) 4. !:' 0'( / DR, KOLKATA BENCH 5. GUARD FILE 7 0'/ TRUE COPY, 3(4/ BY ORDER, ; '< /DEPUTY REGISTRAR