Sh. Raj Kumar Sahni, New Delhi V. ACIT, New Delhi

ITA 4553/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4831 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 22-05-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 01-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMITA TRIPATHY
• Assessee Lawyers: DIPAK MALIK
• Keywords: Search and seizure; Additional evidence
• Section: 143(3); 153A; 132

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 4553 TO 4559/DEL/2013 (ASSESSMENT YEAR: 2004 - 05 TO 2010 - 11 ) RAJ KUMAR SAHNI, 1515, 1 ST FLOOR, WAZIR NAGAR, KOTLA MUBARAKPUR, NEW DELHI PAN:ABLPS7663K VS. ACIT, CENTRAL CIRCLE - 23, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DIPAK MALIK, CA REVENUE BY: SMT PARMITA TRIPATHY, CIT DR DATE OF HEARING 02/08 / 2017 DATE OF PRONOUNCEMENT 29 / 08 / 2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - II, NEW DELHI DATED 15.04.2013 FOR THE ASSESSMENT YEAR 2004 - 05 TO 2010 - 11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4553/DEL/2013 FOR ASSESSMENT YEAR 2004 - 05 : - 1. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 96,000/ - ON ACCOUNT OF LOW DRAWINGS. 2. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING ' 3,427/ - ON ACCOUNT OF 80D. 3. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING 3,374/ - ON ACCOUNT OF HOUSE TAX PAID. 4. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 3,34,400/ - ON ACCOUNT OF COMMISSION PAID DUE TO NON DEDUCTION OF TDS. 3. THE ASSESSEE HAS RAISED THE F OLLOWING GROUNDS OF APPEAL IN ITA NO. 4554/DEL/2013 FOR ASSESSMENT YEAR 2005 - 06 : - 1 . WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 1,08,000/ - ON ACCOUNT OF LOW DRAWINGS. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 3,58,765/ - ON ACCOUNT OF CAPITAL LOSS CLAIMED. 3. LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING ' 1,16,000/ - ON ACCOUNT EXPENSE DISALLOWED IN P&L A/C. 4. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISA LLOWING ' 50,000/ - ON ACCOUNT OF PERSONAL EXPENSES. 5. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING ' 4,168/ - ON ACCOUNT OF 80D. 6. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING 4,168/ - ON ACCOUNT OF HOUSE TAX PAID. PAGE 2 OF 7 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4555/DEL/2013 FOR ASSESSMENT YEAR 2006 - 07 : - 1. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 1,20,000/ - ON ACCOUNT OF LOW DRAWINGS. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 15,00,0 00/ - ON ACCOUNT OF UNVERIFIED ADVANCE/LOAN RECEIVED FROM PARTY UNDER SECTION 68. 3. LD. CIT (A) WAS NOT JUSTIFIED IN DISALLOWING ' 3,70,100/ - & ' 2,77,300/ - ON ACCOUNT OF CASH DEPOSIT WHEREAS THE AMOUNT WAS NOT DEPOSITED BUT SHOWN IN PAYMENT MADE IN CASH F OR THE STAMP DUTY. 4. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING ' 4,170/ - ON ACCOUNT OF 80D. 5. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING ' 35,000/ - ON ACCOUNT OF PERSONAL EXPENSES. 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 455 6 /DEL/2013 FOR ASSESSMENT YEAR 2007 - 08 : - 1. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 1,44,000/ - ON ACCOUNT OF LOW DRAWINGS. 2. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 12,17.187/ - ON ACCOUNT DIVIDEND U/S 2(22)(E) UNDER INCOME TAX ACT, 1961 AS IT WAS GIVEN IN THE NORMAL COURSE OF BUSINESS. 3. WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DISALLOWING ' 4,43,482/ - ON ACCOUNT DIVIDEND U/S 2(22)(E) UNDER INCOME TAX ACT, 1961 AS IT WAS GIVEN IN THE NORMAL COURSE OF BUSINESS. 4. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING 35,000/ - ON ACCOUNT OF PERSONAL EXPENSES. 5. LD. ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWIN G ' 11,000/ - ON ACCOUNT OF 80GGA. 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4557/DEL/2013 FOR ASSESSMENT YEAR 2008 - 09 : - 1. WHETHER THE LD CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 144000/ - ON ACCOUNT OF LOW DRAWINGS. 2. WHETHER THE LD CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 1384025/ - ON ACCOUNT PROVISION OF INTEREST WHICH WAS ACTUALLY PAID IN NEXT YEAR DUE TO ADOPTION OF MERCANTILE SYSTEM. 7. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 455 8 /DEL/2013 FOR ASSESSMENT YEAR 2009 - 10 : - 1. WHETHER THE LD CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 180000/ - ON ACCOUNT OF LOW DRAWINGS. 2. WHETHER THE LD CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 45000/ - ON ACCOUNT PROVISION OF INTEREST WHICH WAS ACTUALLY PAID IN NEX T YEAR DUE TO ADOPTION OF MERCANTILE SYSTEM. 8. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4559/DEL/2013 FOR ASSESSMENT YEAR 2010 - 11 : - PAGE 3 OF 7 1. WHETHER THE LD CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 180000/ - ON ACCOUNT OF LOW DRAWINGS. 2. LD CIT(A) WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 6000/ - AS CLAIMED BY THE ASSESSEE IN THE P&L A/C. 3. LD ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING RS. 35000/ - ON ACCOUNT OF PERSONAL EXPENSES. 4. WHETHER THE CIT(A) WAS JUSTIFIED IN DISALLOWING RS. 248966/ - ON ACCOUNT OF TDS DEDUCTED BY THE OTHER PARTY WHEREAS NO TDS HAS BEEN CLAIMED BY THE ASSESSEE. 9. DURING THE COURSE OF HEARING BEFORE US THE LD AR HAS F ILED AN APPLICATION FOR REQUESTING ADMISSION OF ADDITIONAL GROUND OF APPEAL FOR AY 2004 - 05 TO AY 2008 - 09 VIDE APPLICATION DATED 01.09.2016. THE CLAIM OF THE ASSESSEE IS THAT HE WISHES TO RAISE AN ADDITIONAL LEGAL GROUND OF APPEAL WHICH GOES TO THE ROOT OF THE ASSESSMENT AS IT RELATES TO ASSUMPTION OF JURISDICTION BY THE LD ASSESSING OFFICER. FO R RAISING THE ADDITIONAL GROUNDS OF APPEAL THE LD AR HAS RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF N ATIONAL THERMAL POWER CO. LTD. VS. CIT 229 ITR 383 . THE ASSESSEE HAS FRAMED THE ADDITIONAL GROUND RAISED AS UNDER: - THAT THE LD AO HAS ERRED IN LAW IN INTERFERING THE COMPLETED ASSESSMENT WHILE MAKING DISALLOWANCES U/S 153C READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 AS NO INCRIMINATING MATERIAL WAS UNEARTEHED DURING THE COURSE OF SEARCH. HENCE, THE DISALLOWANCE SO MADE DESER VED TO BE DELETED. 10. THE LD AR REITERATED THE SAME ARGUMENT WHICH ARE STATED IN THE PRAYER FOR ADMITTING THE ADDITIONAL EVIDENCES. 11. THE LD DR VEHEMENTLY OBJECTED TO THE ABOVE PRAYER OF ADMISSION OF ADDITIONAL GROUND STATING THAT SAME WAS NOT RAISED BEFORE THE LD CIT(A) OR LD ASSESSING OFFICER. HE FURTHER SUBMITTED THAT ASSESSEE HAS SUBMITTED TO THE JURISDICTION OF THE AO AND NOT CONTESTED THE ABOVE ISSUE . 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE APPLICATION OF ASSESSEE FOR AD MISSION OF ADDITIONAL GROUND . APPARENTLY, THE GROUND RAISED BY THE ASSESSEE IS LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER OF ASSESSMENT. THE HON'BLE SUPREME COURT IN CASE OF N ATIONAL THERMAL POWER CO. LTD. VS. CIT (SUPRA) ALSO HELD THAT LEGAL ISSUE WHERE NO FRESH EVIDENCES ARE REQUIRED TO BE ADDUCED CAN BE RAISED AT ANY STAGE. IN VIEW OF THIS WE ADMIT THE ADDITIONAL GROUND OF APPEAL FOR AY 2004 - 05 TO 2008 - 09. 13. THE LD AR ADVERTING ON THE ADDITIONAL GROUND OF APPEAL SUBMITTED THAT NONE OF THE ADDITION MADE BY THE AO IS BASED ON INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND THEREFORE, IN ASSESSMENT U/S 153C , THOSE ADDITION CANNOT BE SUSTAINED. TO SUPPORT HIS CONTENTION HE RELIED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN CASE OF CIT VS. KABUL CHAWLA 380 ITR 573. PAGE 4 OF 7 14. THE LD DR VEHEMENTLY OBJECTED TO THE ARGUMENT AND SUBMITTED THAT THE ABOVE DECISION IS PENDING BEFORE THE HON'BLE SUPREME COUR T AND THEREFORE, EVEN IF THERE IS NO INCRIMINATING DOCUMENT THE ADDITION CAN BE MADE U/S 153C OF THE ACT WHICH IS MADE PURSUANCE TO SEARCH AND SEIZURE. 15. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE FACTS IN THE CASE ARE THAT SEARCH U/S 132 WAS C ARRIED OUT IN CASE OF ONE SH R I LALIT MODI ON 19.06.2009 AT D - 20, NDSE, PART - II, NEW DELHI AND CERTAIN DOCUMENTS BELONGING TO THE ASSESSEE WERE SEIZED AND THEREFORE, LD ASSESSING OFFICER INITIATED THE PROCEEDINGS IN CASE OF APPELLANT U/S 153C READ WITH SECT ION 153A OF THE ACT AND FURTHER, THE ASSESSMENT WAS FRAMED FOR AY 2004 - 05 U/S 153C ON 30.12.2011. THE LD ASSESSING OFFICER MADE ADDITION VIDE THAT ORDER WITH RESPECT TO HOUSE TAX FOR FAILURE TO SUBSTANTIATE BY PRODUCING RECEIPT, ADDITION ON ACCOUNT OF HOUS EHOLD EXPENDITURE AND DISALLOWANCE OF EXPENDITURE FOR NON DEDUCTION OF TAX. FURTHER, DEDUCTION U/S 80D WAS ALSO DENIED. THESE ADDITIONS WERE CONFIRMED BY THE LD CIT(A) AND THEREFORE, ASSESSEE IS IN APPEAL BEFORE US. SIMILARLY THE ADDITIONS WERE ALSO MADE FOR AY 2005 - 06 TO 2008 - 09. 16. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE ASSESSING OFFICER AND NOTED THAT THERE WAS NO REFERENCE TO ANY INCRIMINATING MATERIAL FOR MAKING THE ADDITION OR DISALLOWANCE. THE LD DR ALSO COULD NOT POINT OUT ANY INCRIMINATING MATER IAL WITH RESPECT TO THE VARIOUS ADDITIONS MADE. HON'BLE DELHI HIGH COURT IN CASE OF CIT VS. KABUL CHAWLA (SUPRA) VIDE PARA NO. 37 HAS HELD AS UNDER: - 37. ON A CONSPECTUS OF SECTION 153A(1) OF THE ACT, READ WITH THE PROVISOS THERETO, AND IN THE LIGHT OF T HE LAW EXPLAINED IN THE AFOREMENTIONED DECISIONS, THE LEGAL POSITION THAT EMERGES IS AS UNDER : (I) ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE MANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE. (II) ASSESSMENTS AND REASSESSMENTS PENDING ON THE DATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SUCH ASSESSMENT YEARS WILL HAVE TO BE COMPUTED BY THE ASSESSING OFFICERS AS A FRESH EXERCISE. (III) THE ASSESSING OFFICER WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT ASSESSMENT YEAR IN WHICH THE SEARCH TAKES PLACE . THE ASSESSING OFFICER HAS THE POWER TO ASSESS AND REASSESS THE 'TOTAL INCOME' OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OTHER WORDS, THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EACH OF THE SIX A SSESSMENT YEARS 'IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX'. (IV) ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITIONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FOUND IN THE COURSE OF THE SEARCH, OR OTHER POST - SEARC H MATERIAL OR INFORMATION AVAILABLE WITH THE ASSESSING OFFICER WHICH CAN BE RELATED TO THE EVIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT 'CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. PAGE 5 OF 7 OBVIOUSLY, AN ASSESSMENT HAS TO BE MADE UNDER THIS SECTION ONLY ON THE BASIS OF THE SEIZED MATERIAL.' (V) IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABATED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD 'ASSESS' IN SECTION 153A I S RELATABLE TO ABATED PRO CEEDINGS (I.E., THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD 'REASSESS' TO THE COMPLETED ASSESSMENT PROCEEDINGS. (VI) IN SO FAR AS THE PENDING ASSESSMENTS ARE CONCERNED, THE JURISDIC TION TO MAKE THE ORIGINAL ASSESSMENT AND T HE ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSESSMENT SHALL BE MADE SEPARATELY FOR EACH ASSESSMENT YEAR ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUGHT ON THE RECORD OF THE ASSESSING OFFICER. (VII) COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UNDISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 17. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE DELHI HIGH COURT WE HOLD THAT THOUGH ASSUMPTION OF JURISDICTION IN FRAMING ASSESSMENT ORDER U/S 153C OF THE ACT BY THE LD ASSESSING OFFICER IS CORRECT, HOWEVER, AS ALL THE ADDITIONS MADE IN THESE ASSESSMENT YEARS ARE NOT BASED ON ANY INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH THE ADDITIO N/ DISALLOWANCES DESERVE TO BE CANCELLED. IN VIEW OF THIS , ADDITIONAL GROUND RAISED BY THE ASSESSEE SUCCEEDS AND REVERSING THE ORDER OF THE LD CIT(A) , WE DIRECT THE LD ASSESSING OFFICER TO DELETE ALL THE ADDITIONS DISPUTED BEFORE US FOR AY 2004 - 05 TO AY 20 08 - 09. IN THE RESULT ADDITIONAL GROUND RAISED BY THE ASSESSEE SUCCEEDS. 18. IN VIEW OF OUR DECISION ON THE ADDITIONAL GROUND , THE OTHER GROUNDS RAISED IN THE ORIGINAL APPEAL MEMO DO NOT SURVIVE, HENCE, THEY ARE DISMISSED WITHOUT ADJUDICATING UPON THEM ON MERIT S. 19. IN VIEW OF THIS APPEALS OF THE ASSESSEE FOR AY 2004 - 05 TO 2008 - 09 ARE ALLOWED. 20. COMING TO THE APPEAL OF THE ASSESSEE FOR AY 2009 - 10 AND 2010 - 11 WHERE, ASSESSMENTS WERE OPEN AS ON THE DATE OF SEARCH I.E. 19.06.2009, THE GROUNDS ARE REQUIRED TO BE ADJUDI CATED INDEPENDENTLY. 21. FOR AY 2009 - 10 ASSESSEE HAS CONTESTED THE CONFIRMATION OF ADDITION OF RS. 180000/ - ON ACCOUNT OF LOW DRAWINGS AND DISALLOWANCE OF RS. 45000/ - ON ACCOUNT OF PERSONAL EXPENSES. 22. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. WITH RESPECT TO THE DISALLOWANCE OF RS. 45000/ - THE ABOVE DISALLOWANCE WAS NOT CONTESTED BEFORE THE LD CIT(A) AND THEREFORE, THERE IS NO FINDING OF THE LD FIRST APPELLATE AUTHORITY. BEFORE US NO PAGE 6 OF 7 ARGUMENTS WERE ADVANCED HENCE, WE DISMISS GROUND NO. 2 OF THE APPEAL OF THE ASSESSEE ON THIS COUNT. 23. THE GROUND NO. 1 OF THE APPEAL WAS WITH RESPECT TO ADDITION OF RS. 180000/ - ON ACCOUNT OF LOW HOUSEHOLD EXPENDITURE. THE ASSESSEE HAS SHOWN THE HOUSEHOLD WITHDRAWAL OF RS. 422400/ - THE LD ASSESSING OFFICER HELD THAT AS ASSESSEE HAS NOT GIVEN DETAILS OF EXPENSES INCURRED FOR HOUSEHOLD PURPOSES , HE ESTIMATED SUCH HOUSEHOLD EXPENDITURE OF THE ASSESSEE @15000/ - PER MONTH LOOKING TO THE STATUS OF THE ASSESSEE AND HIS FAMILY. THEREFORE, THE ADDITION OF RS. 180000/ - WAS MADE. ON APPEAL BEFORE THE LD CIT(A) IT WAS SUBMITTED THAT ASSESSEE IS LIVING IN H IS PARENTAL HOUSE AND HIS WIFE WAS WORKING. HOWEVER, NO DETAILS ABOUT THE EXPENSES OF THE HOUSEHOLD WAS PROVIDED. THEREFORE, THE LD CIT(A) CONFIRMED THE ADDITION. EVEN BEFORE US NO DETAILS WERE PROVIDED AND THEREFORE, WE DO NOT HAVE ANY HESITATION IN CONFI RMING THE ABOVE ADDITION. IN THE RESULT GROUND NO. 1 OF THE APPEAL OF THE ASSESSEE IS DISMISSED. 24. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR AY 2009 - 10 IS DISMISSED. 25. COMING TO THE APPEAL OF THE ASSESSEE FOR AY 2010 - 11. 26. THE FIRST GROUND OF APPEAL OF THE A SSESSEE IS AGAINST THE CONFIRMATION OF THE ADDITION OF RS 180000/ - ON ACCOUNT OF HOUSE HOLD EXPENSES . THE FACTS AND CIRCUMSTANCE LEADING TO THE ADDITION ARE SIMILAR TO THE IDENTICAL ADDITION FOR A Y 2009 - 10. NO FRESH ARGUMENTS WERE ADVANCED BEFORE US. THERE FORE IN ABSENCE OF ANY DETAILS AND FOR THE REASONS GIVEN BY US IN OUR FINDING FOR AY 2009 - 10 IN CASE OF THE GROUND NO 1 OF THE APPEAL OF THE ASSESSEE, WE CONFIRM THE ADDITION OF RS 180000/ - ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL BY THE ASSESSEE. IN THE RESULT WE DISMISS GROUND NO 1 OF THE APPEAL OF THE ASSESSEE. 27. GROUND NO 3 OF THE APPEAL OF THE ASSESSEE WAS AGAINST DISALLOWANCE DEDUCTION U/S 80 G OF RS 6000/ - ON ACCOUNT OF NOT SUBMITTING THE DONATION RECEIPT. THE ASSESSEE HAS NOT SUBMITTED THE SAME THEREFORE, WE DO NOT INTERFERE IN THE DISALLOWANCE. THEREFORE GROUND NO 2 OF THE APPEAL OF THE ASSESSEE IS DISMISSED. 28. GROUND NO 3 OF THE APPEAL OF THE ASSESSEE IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF RS 35000/ - . THE ABOVE DISALLOWANCE WAS NOT CHA LLENGED BY THE ASSESSEE BEFORE THE LD CIT (A). BEFORE US NO ARGUMENTS WERE ADVANCED HENCE, WE DISMISS GROUND NO. 3 OF THE APPEAL OF THE ASSESSEE ON THIS COUNT. 29. GROUND NO. 4 OF THE APPEAL OF THE ASSESSEE IS AGAINST RS. 248966/ - ON ACCOUNT OF DIFFERENCE IN TDS CERTIFICATE OF COMMISSION EARNED. BEFORE THE LD AO THE ASSESSEE SUBMITTED THAT ONE OF THE PARTY PAID THE LESSER AMOUNT BUT ACTUALLY DEDUCTED THE TDS ON HIGHER AMOUNT. THE ASSESSEE ALSO SUBMITTED THAT ACTUAL COMMISSION PAGE 7 OF 7 RECEIVED IS THE CORRECT AMOUNT OF RECEIPT AND HE HAS ALSO NOT CLAIMED THE EXCESS TDS WRONGLY DEDUCTED BY THE CLIENT. THE LD CIT(A) CONFIRMED THE ABOVE DISALLOWANCE. 30. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE LD CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO QUANTITY THE DIFFERENCE BETWEEN THE COMMISSION DECLARED AND COMMISSION REFLECTED IN THE TDS CERTIFICATE IN VIEW OF THE EXPLANATION OF THE ASSESSEE T HAT THE DIFFERENCE IN THE COMMISSION INCOME SHOWN AS WELL AS COMMISSION RECEIVED AS PER TDS CERTIFICATE IS ONLY RS. 132360/ - . THE CERTIFICATE FROM THE DEDUCTOR WAS ALSO FURNISHED SHOWING THAT RS. 132360/ - WAS IN FACT NOT PAID TO THE ASSESSEE BUT ANOTHER P ARTY M/S. RAJ ASSOCIATES. IN VIEW OF THIS FACT WE ARE OF THE VIEW THAT WHEN DEDUCTOR ITSELF HAS GIVEN A CERTIFICATE THAT HE HAS WRONGLY SHOWN TDS IN THE NAME OF THE ASSESSEE BUT IT BELONGS TO A THIRD PARTY, THE LOWER AUTHORITIES HAS WRONGLY CONFIRMED THE D ISALLOWANCE. IN VIEW OF THIS WE REVERSE THE FINDING OF THE LD CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 248966/ - ON ACCOUNT DIFFERENCE IN INCOME OFFERED BY THE ASSESSEE AND RECEIPT SHOWN IN THE TDS CERTIFICATE. IN THE RESULT GRO UND NO. 4 OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 31. IN THE RESULT APPEAL OF THE ASSESSEE FOR AY 2010 - 11 IS PARTLY ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 9 / 08 / 2017 . - S D / - - S D / - ( SUDHANSHU SRIVASTAVA ) (PRASHANT MAHARISHI) JUDICIAL MEMB ER ACCOUNTANT MEMBER DATED: 2 9 / 08 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI