Associated Transrail Structures Limited, Baroda V. The Dy.CIT., Circle-1, Baroda

ITA 486/AHD/2005

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0453 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-11-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 15-02-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: M J SHAH
• Keywords: Question of law
• Section: 43B; 143(3); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.486& 732/AHD/2005 ASSESSMENT YEAR:1999-00 DATE OF HEARING:5.11.09 DRAFTED:11.11.09 ASSOCIATED TRANSRAIL STRUCTURES LIMITED, NEPTUNE TOWER, 7 TH FLOOR, PRODUCTIVITY ROAD, ALKAPURI, BARODA PAN NO.AACCA4715D ACIT, CIRCLE-1(1), BARODA V/S . V/S . DEPUTY CIT, CIRCLE-1, BARODA ASSOCAITED TRANSRAIL STRUCTURES, LTD., (FORMERLY TRANSRAIL ENGG. CO. LTD.) PRODUCTIVITY ROAD, 7 TH FLOOR, NEPTUNE TOWER, BARODA (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI M.J. SHAH, AR REVENUE BY:- SHRI C.K. MISHRA, SR.DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THESE CROSS APPEALS BY THE ASSESSEE AND REVENUE ARE ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-III, BARODA IN APPEAL NO.CAB/III/138/04-05 DATED 03-12-2004. THE ASSESSM ENT WAS FRAMED BY THE DCIT, CIRCLE-1, BARODA U/S.143(3) R.W.S.147 OF THE INCOME -TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 12-0 3-2004 FOR THE ASSESSMENT YEAR 1999-00. FIRST WE WILL DEAL WITH ASSESSEES APPEAL IN ITA NO .486/AHD/2005. ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 2 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE AS RE GARDS TO THE JURISDICTIONAL THAT THE ASSESSMENT IS BAD BECAUSE U/S.143(2) NOTICE HAS NOT BEEN GIVEN IN ACCORDANCE WITH PROVISIONS OF SECTION 143(3) OF THE ACT. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE HAS N OT PRESSED THIS ISSUE. HENCE, WE DISMISS THIS ISSUE AS NOT PRESSED. 4. THE NEXT EFFECTIVE ISSUE IN THIS APPEAL OF THE A SSESSEE IS AGAINST THE ORDER OF CIT(A) IN UPHOLDING THE DISALLOWANCE OF RS.1,14,136 /- FOR PAYMENT OF EMPLOYERS AND EMPLOYEES CONTRIBUTION TO PROVIDENT FUND AND FAMIL Y PENSION FUNDS PAID AFTER DUE DATES BUT BEFORE FILING OF RETURN OF INCOME. 5. AFTER HEARING THE RIVAL CONTENTIONS AND GOING TH ROUGH THE CASE RECORDS, WE FIND THAT NEITHER THE ASSESSING OFFICER NOR THE CIT (A) HAS DISCUSSED THE DATES OF PAYMENTS, DESPITE THE EVIDENCES FILED BY THE ASSESS EE. BOTH THE AUTHORITIES BELOW HAVE DISALLOWED ONLY ON THE REASONS THAT THESE PAYM ENTS ARE NOT MADE DUE DATES. BEFORE US LD. COUNSEL FOR THE ASSESSEE REFERRED TO PAGE-14 OF ASSESSEES PAPER BOOK WHERE THE DETAILS OF PAYMENT OF EMPLOYEES CONT RIBUTION AND ON PAGE-19 OF EMPLOYERS CONTRIBUTION ARE GIVEN AND THE RELEVANT DETAILS READ AS UNDER:- H.G. SHAH & ASSOCIATES CHARTERED ACCOUNTANT 410 GOKUL BUILDING, 80-A BARODA STREET, CARNAC BUNDCR, MASJSID BUNDER(E), MUMBAI: 400 009 TEL. NO.: 344 47 46 / 341 12 35 FAX NO.: 34: 1 35 TRANSRAIL E NGG. CO. LTD. *************** *********************** ANNEXURE B : TO FORM PART OF 3CD FOR THE YEAR END ED 31.03.99 ITEM NO.16(B): DETAILS OF EMPLOYEES TOWARD S CONTRIBUTION TO PROVIDENT FUND MONTH PROVIDENT DUE ACTUAL DATE FUND DATE OF PAYMENT APRIL -98 75,524 15.05.98 11,06,98 MAY 98 69,926 15.06.98 19,06,98 ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 3 JUNE-98 59,262 15.07.98 14.08.98 JULY-98 75,648 15.08.98 07.10.98 AUG-98 63,473 15.09.98 09.10.98 SEPT-98 53,972 15.10.98 03.12.98 OCT-98 49,262 15.11.98 31.12.99 NOV-98 49,168 15.12.98 31.12.99 DEC-98 72,236 15.01.99 15.03.99 JAN-99 78,289 15.02.99 15.03.99 FEB-99 77,303 15.03.99 15.03.99 MAR-99 63,420 15.04.99 15.04.99 ---------- 7,87,553 ======== H.G. SHAH & ASSOCIATES CHARTERED ACCOUNTANT 410 GOKUL BUILDING, 80-A BARODA STREET, CARNAC BUNDCR, MASJSID BUNDER(E), MUMBAI: 400 009 TEL. NO.: 344 47 46 / 341 12 35 FAX NO.: 34: 1 35 TRANSRAIL E NGG. CO. LTD. *************** *********************** ANNEXURE G : 10 FORM PART OF 3CD FOR THE YEAR END ED 31.03.99 ITEM NO.21(II: DETAILS OF EMPLOYEES TOWARD S CONTRIBUTION TOWARDS PROVIDENT FUND MONTH PROVIDEN FAMILY PROVIDENT DUE DATE ACTUAL DATE FUND FUND OF PAYMENT OF PAYMENT APRIL -98 23,242 52,752 15 .05.98 11.06.98 MAY-98 21,586 48,540 15.06.98 19.06.98 JUNE-98 18,124 41,138 15.07.98 14.08.98 JULY-98 23,136 52,512 15.08.98 07.10.98 AUG-98 19,413 44,062 15.09.98 09.10.98 SEPT-98 16,506 37,466 15.10.98 03.12.98 OCT-98 15,966 34,196 15.11.98 31.12.98 NOV-98 13,508 25,660 15.12.98 31.12.98 ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 4 DEC-98 22,092 50,144 15.01.99 15.03.99 JAN-99 23,943 54,346 15.02.99 15.03.99 FEB-99 22,113 45,191 15.03.99 15.03.99 MAR-99 19,396 44,025 15.04.99 15.04.99 ---------- -------- --- 2,37,925 5,30,032 ======= ======= WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOU R OF THE ASSESSEE AS THE PAYMENTS OF THESE CONTRIBUTION ARE MADE WITHIN THE DUE DATE OF FILLING OF RETURN OF INCOME AS NOTED ABOVE AND ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. P.M. ELECTRONICS LTD. (2008) 220 CTR 635 (DEL), WHEREIN THE HON'BLE DELHI HIGH COURT HAS DISCUSSED IN PARA- 4 AS UNDER:- 4. ON 27 TH NOV., 1998 THE ASSESSEE HAD FILED A RETURN OF INCO ME DECLARING A LOSS OF RS.8,92,888. ON 11 TH MAY, 1999 THE RETURN WAS PROCESSED UNDER S. 143(1)(A) OF THE ACT. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. ACCORDINGLY, A NOTICE DT. 27 TH SEPT., 1999 UNDER S. 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE NOTICE A ND ON EXAMINATION OF THE DETAILS SUBMITTED BY THE ASSESSEE WITH RESPECT TO P ROVIDENT FUND PAYMENTS MADE BOTH ON ACCOUNT OF EMPLOYERS AND EMPLOYEES S HARE REVEALED THAT PAYMENTS IN THE SUM OF RS.17,94,042 WERE LATE AS PE R THE PROVISIONS OF S. 36(1)(VA) R.W S. 2(24)(X) AND S. 43B. CONSEQUENTLY , THE AO DISALLOWED THE DEDUCTION AND ADDED A SUM OF RS.17,94,042 TOWARDS E PF CONTRIBUTION. AND SUBSEQUENTLY DECIDE THIS ISSUE IN PARA-10 TO 14 OF HON'BLE DELHI HIGH COURT, WHICH READ AS UNDER:- 10. IN VIEW OF THE ABOVE, IT IS QUITE EVIDENT THAT THE SPECIAL LEAVE PETITION WAS DISMISSED BY A SPEAKING ORDER AND WHILE DOING SO TH E SUPREME COURT HAD NOTICED THE FACT THAT THE MATTER IN APPEAL BEFORE I T PERTAINS TO A PERIOD PRIOR TO THE AMENDMENT BROUGHT ABOUT IN S. 43B OF THE ACT. T HE AFORESAID POSITION AS REGARDS THE STATE OF THE LAW FOR A PERIOD PRIOR TO THE AMENDMENT TO S. 43B HAS BEEN NOTICED BY A DIVISION BENCH OF THIS COURT IN DHARMENDRA SHARMA (SUPRA). APPLYING THE RATIO OF THE DECISION OF THE SUPREME COURT IN VINAY CEMENT (SUPRA) A DIVISION BENCH OF THIS COURT DISMISSED T HE APPEALS OF THE REVENUE. IN THE PASSING WE MAY ALSO NOTE THAT A DIV ISION BENCH OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS. NEXUS COMPUTER (P) LTD. BY A JUDGMENT DT. 19 TH AUG., 2008, PASSED IN TAX CASE (APPEAL) NO.1192/20 08 [REPORTED AT (2008) 219 CTR (MAD.) 54 ED.] DISCUS SED THE IMPACT OF BOTH THE DISMISSAL OF THE SPECIAL LEAVE PETITION IN THE CASE OF GEORGE WILLIAMSON (ASSAM) LTD. (SUPRA) AND VINAY CEMENT (SUPRA) AS WELL AS A CONTRARY VIEW OF THE DIVISION BENCH OF ITS OWN COURT IN SYNERGY FINANCIAL EXCHANGE (SUPRA). ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 5 THE DIVISION BENCH OF THE MADRAS HIGH COURT HAS EXP LAINED THE EFFECT OF THE DISMISSAL OF A SPECIAL LEAVE PETITION BY A SPEAKING ORDER BY RELYING UPON THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF KUNHAYAMMED & ORS.VS. STATE OF KERALA & ANR. (2000) 162 CTR (SC) 97: 119 STC 505 AT P. 526 IN PARA 40 AND NOTED THE FOLLOWING OBSERVATIONS : IF THE ORDER REFUSING LEAVE TO APPEAL IS A SPEAKIN G ORDER, I.E., GIVES REASONS FOR REFUSING THE GRANT OF LEAVE, THEN THE O RDER HAS TWO IMPLICATIONS. FIRSTLY, THE STATEMENT OF LAW CONTAIN ED IN THE ORDER IS A DECLARATION OF LAW BY THE SUPREME COURT WITHIN THE MEANING OF ART. 141 OF THE CONSTITUTION. SECONDLY, OTHER THAN THE DECLA RATION OF LAW, WHATEVER IS STATED IN THE ORDER ARE THE FINDINGS RE CORDED BY THE SUPREME COURT WHICH WOULD BIND THE PARTIES THERETO AND ALSO THE COURT. TRIBUNAL OR AUTHORITY IN ANY PROCEEDINGS SUB SEQUENT THERETO BY WAY OF JUDICIAL DISCIPLINE, THE SUPREME COURT BEING THE APEX COURT OF THE COUNTRY. BUT, THIS DOES NOT AMOUNT TO SAYING TH AT THE ORDER OF THE COURT. TRIBUNAL OR AUTHORITY BELOW HAS STOOD MERGED IN THE ORDER OF THE SUPREME COURT REJECTING SPECIAL LEAVE PETITION OR T HAT THE ORDER OF THE SUPREME COURT IS THE ONLY ORDER BINDING AS RES JUDICATA IN SUBSEQUENT PROCEEDINGS BETWEEN THE PARTIES. 11. UPON NOTING THE OBSERVATIONS OF THE SUPREME COU RT IN KUNHAYAMMED & ORS. (SUPRA) THE DIVISION BENCH OF THE MADRAS HIGH COUR T IN THE CASE OF NEXUS COMPUTER (P) LTD. (SUPRA) CAME TO THE CONCLUSION THAT THE VIEW TAKEN BY THE SUPREME COURT IN VINAY CEMENT (SUPRA) WOULD BIND THE HIGH COURT AS IT WAS LAW DECLARED BY THE SUPREME COURT UNDER ART. 141 OF THE CONSTITUTION. 12. WE ARE IN RESPECTFUL AGREEMENT WITH THE REASONI NG OF THE MADRAS HIGH COURT IN NEXUS COMPUTER (P) LTD. (SUPRA). JUDICIAL DISCIPLINE REQUIRES US TO FOLLOW THE VIEW OF THE SUPREME COURT IN VINAY CEMEN T (SUPRA) AS ALSO THE VIEW OF THE DIVISION BENCH OF THIS COURT IN I DHARM ENDRA SHARMA (SUPRA). 13. IN THESE CIRCUMSTANCES, WE RESPECTFULLY DISAGRE E WITH THE APPROACH ADOPTED BY A DIVISION BENCH OF THE BOMBAY HIGH COUR T IN PAMWI TISSUES LTD. (SUPRA). 14. IN THESE CIRCUMSTANCES INDICATED ABOVE, WE ARE OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW ARISES FOR OUR CONSIDER ATION IN THE PRESENT APPEAL. THE APPEAL IS, THUS, DISMISSED. 6. WE FIND THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF P.M. ELECTRONICS LTD. (SUPRA) HAS DECIDED THIS ISSUE OF PAYMENT OF EMPLOY EES CONTRIBUTION TOWARDS PROVIDENT FUND AFTER CONSIDERING THE DECISION OF HO N'BLE APEX COURT IN THE CASE OF VINAY CEMENT (SUPRA) AND ALSO DISTINGUISHED THE CASE LAW REFERRED BY TH E LD. DR OF BOMBAY HIGH COURT IN PAMWI TISSUES LTD. (SUPRA) . ACCORDINGLY, FOLLOWING DELHI HIGH COURT IN P.M. ELECTRONICS LTD. (SUPRA), WE ALLOW THE CLAIM OF THE ASSESSEE. ACCORDINGLY THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED. ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 6 NOW COMING TO REVENUES APPEAL IN ITA NO.732/AHD/20 05. 7. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE ADDITION OF RETENTION MONEY AMOUNTING TO RS.49.44 LAKHS. 8. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE STATE D THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02. AFTER HEARING TH E RIVAL CONTENTIONS AND GOING THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS SUBMITTED THAT CONTRACT ENTERED INTO BETWEEN THE CO MPANY AND ITS CLIENTS EXPRESSLY MENTIONS THAT THE RETENTION MONEY WILL BE PAID ONLY ON COMPLETION / ACCEPTANCE / ISSUE OF PROVISIONAL CERTIFICATE FOR THE PARTICULAR WORK CARRIED OUT AS PER THE CONTRACT. THE ASSESSEE HAS BEEN FOLLOWING CONSISTENTLY THE AC COUNTING POLICY WHEREIN ASSESSEE HAS ACCOUNTED FOR PROGRESS-BILLS AND WORK DONE BUT NOT BILLED, NET RETENTIONS MONEY IS CONTINGENT UPON COMPLETION AND ACCEPTANCE OF THE FINAL BILL BY THE CLIENTS. IN VIEW OF THIS, IT IS NOT CONSIDERED NECESSARY TO MAKE A PROVISION TO MEET WITH VARIOUS CONSTRUCTION CONTINGENCIES AND EXPENSE S IN MAINTENANCE PERIOD. IT IS ALSO SUBMITTED THAT THOUGH THE BILLS FOR 100% AMOUN T IS CONSIDERED BUT INCOME NET OF RETENTION IS OFFERED FOR TAX SINCE THE RETENTION AM OUNT DOES NOT ACCRUE TO THE COMPANY UNLESS CERTAIN CONTINGENCIES ARISE. IN EARL IER YEARS ALSO SAME ACCOUNTING POLICY WAS FOLLOWED AND IN ASSESSMENT YEAR 1987-88 AND 1989-90, APPEALS WERE ALLOWED BY THE CIT(A) ON THIS ISSUE. LD. COUNSEL F OR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF MUMBAI TRIBUNAL E BENCH IN THE CASE OF KEC INTERNATIONAL LTD., WHEREIN IT IS HELD THAT RIGHT TO RECEIVE RETENTION ACCRUES ONLY WHEN PROVISIONAL ACCEPTANCE CERTIFICATE IS ISSUED AND NOT BEFORE THA T. THE ACCRUAL OF INCOME BY WAY OF RETENTION MONEY DEPENDS ON THE RIGHT TO RECEIVE THE INCOME AND THEREFORE, TILL THE ASSESSEE GETS A RIGHT TO RECEIVE THE INCOME, THERE IS NO ACCRUAL OF INCOME. AND MOREOVER NO AMOUNT CAN BE SAID TO ACCRUE UNLESS IT IS ACTUALLY DUE. THE CIT(A) AFTER DISCUSSING THE VARIOUS CASE LAW HAS ALLOWED THE CLA IM OF THE ASSESSEE IN PARA-5.2 OF HIS APPELLATE ORDER AS UNDER:- 5.2 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPE LLANT AND THE FACTS OF THE CASE. I HAVE ALSO PERUSED THE AFORESAID DECISION IN THE CASE OF CIT V. SIMPLEX CONCRETE PILES (INDIA) PVT. LTD. (CAL) . IT IS SEEN THAT THE RETENTION MONEY AMOUNT IS DUE TO THE APPELLANT ONLY AFTER THE CONTRACT WORK IS COMPLETED TO THE SATISFACTION OF THE CLIENT VIZ. GE B IN THIS CASE, AS PER THE ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 7 TERMS AND CONDITIONS OF THE CONTRACT. THE DECISIONS RELIED UPON THE APPELLANT ARE CLEARLY APPLICABLE IN THIS CASE. THEREFORE, IN THE APPELLANTS CASE, INCOME REPRESENTING RETENTION MONEY WILL BE TAXED IN THE Y EAR IN WHICH IT IS ACTUALLY RECEIVED. ADDITION ON ACCOUNT OF RETENTION MONEY WA S ALSO MADE IN THE ASSESSMENT YEAR 1989-90 IN THE APPELLANTS CASE WHI CH WAS DELETED BY THE CIT(A). THEREFORE, I AM OF THE OPINION THAT IN VIEW OF THE DECISION OF THE CALCUTTA HIGH COURT AS ALSO THE DECISION OF I.T.A.T . MUMBAI BENCH, THE A.O WAS NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF RETENTION MONEY. THIS ADDITION OF RS.49.44 LAKHS IS, THEREFORE, DELETED. FURTHER WE FIND THAT EXACTLY ON SIMILAR FACTS, THE TRIBUNAL IN ASSESSEES OWN CASE ITA NO.2301/AHD/2009 DATED 24-09-2009 HAS HELD THE CLAIM OF THE ASSESSE E VIDE PARA- 6 AND 7 AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. WE FIND THAT THE LD. CIT(A) DELETED THE ADDITION, I NTER ALIA, ON THE GROUND THAT SIMILAR ADDITIONS HAD BEEN DELETED BY HIS PREDECESS ORS IN THE AY 1989-90 & 1999-2000 IN THE ASSESSEES OWN CASE VIDE ORDERS NO .CAB/I-86/91-92 DATED 8.9.1992 AND CAB/III/138/04-05 DATED 03-12-2004. TH E LD. DR DID NOT THROW ANY LIGHT AS TO WHETHER OR NOT THE SAID DECISIONS W ERE FURTHER DISPUTED IN APPEAL AND WHAT WAS THEIR OUTCOME. EVEN OTHERWISE, WE FIND THAT A SIMILAR ISSUE HAD ARISEN IN THE CASE OF CIT V. SIMPLEX CONC RETE PILES (INDIA) PVT. LTD. 1989] 179 ITR 8 (CAL). HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, IT WAS HELD IN THAT CASE THAT, WHEN THERE IS A CLAUSE WITH REGARD TO RETENTION MONEY, THE ASSESSEE GETS NO RIGHT TO CLAI M ANY PART OF THE RETENTION MONEY TILL THE VERIFICATION OF SATISFACTORY EXECUTI ON OF THE CONTRACT IS CONCLUDED AND, THEREFORE, IF THERE IS NO IMMEDIATE RIGHT TO R ECEIVE THE RETENTION MONEY, THE SAID AMOUNT CANNOT BE SAID TO HAVE ACCRUED TO T HE ASSESSEE. EVEN IN THE INSTANT CASE, SO FAR AS RETENTION MONEY IS CONCERNE D, THE LD. CIT(A) CONCLUDED THAT THE ASSESSEE HAD NO RIGHT TO RECEIVE THE SAME AND, THEREFORE, IT CANNOT BE SAID THAT THE AFORESAID AMOUNT HAD ACCRUED TO TH E ASSESSEE. THE REVENUE HAVE NOT PLACED BEFORE US ANY MATERIAL CONTROVERTIN G THESE FINDINGS OF THE LD. CIT(A) NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECIS ION. 7. MOREOVER, HONBLE JURISDICTIONAL HIGH COURT IN T HE CASE OF ANUP ENGINEERING LTD. VS. CIT 247 ITR 457 (GUJ) WHILE RELYING ON THE AFORESAID DECISION IN THE CASE OF SIMPLEX CONCRETE PILES (INDIA) PVT. LTD. (S UPRA) CONCLUDED THAT THE AMOUNT WHICH WAS DEDUCTED FROM THE SALES ACCOUNT BY THE ASSESSEE WAS RIGHTLY CLAIMED BY THE ASSESSEE BY WAY OF DEDUCTION AS THE SAID AMOUNT HAD NEVER BECOME INCOME OF THE ASSESSEE. IT WAS FURTHER HELD THAT AS THE INCOME HAD NOT ACCRUED IN RESPECT OF THE SAID AMOUNT, IT W AS NOT PROPER ON THE PART OF THE REVENUE TO TREAT THE SAME AS INCOME ACCRUED TO THE ASSESSEE. WE ARE OF THE OPINION THAT FOR THE PURPOSE OF ASCERTAINING AS TO WHETHER INCOME HAD ACCRUED TO THE ASSESSEE, ONE HAS TO FIND OUT AS TO WHETHER THE ASSESSEE HAD A VESTED RIGHT TO RECEIVE THE INCOME AND FOR THE PU RPOSE OF KNOWING WHETHER A RIGHT TO RECEIVE INCOME HAD ARISEN, ONE HAS TO LOOK AT THE TERMS AND CONDITIONS OF THE CONTRACT IN PURSUANCE OF WHICH TH E ASSESSEE WAS TO RECEIVE THE AMOUNT. IN THE CASE UNDER CONSIDERATION, THE LD . CIT(A) FOUND THAT THE RETENTION MONEY AMOUNT WAS DUE TO THE ASSESSEE ONLY AFTER THE CONTRACT WORK ITA NO.486 & 273/AHD/2005 A.Y. 1999-00 ASSOCIATD TRANSRAIL STRUCTURES LTD. V. DCIT, CIR-1, BAR ODA PA GE 8 WAS COMPLETED TO THE SATISFACTION OF THE CLIENT VIZ . GEB, AS PER THE TERMS AND CONDITIONS OF THE CONTRACT. ACCORDINGLY, THE LD. C IT(A) CONCLUDED THAT INCOME REPRESENTING RETENTION MONEY WILL BE LIABLE TO BE T AXED IN THE YEAR IN WHICH IT IS ACTUALLY RECEIVED. WE DO NOT FIND ANY INFIRMITY IN THIS APPROACH OF THE LD. CIT(A). IN THESE CIRCUMSTANCES AND IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID DECISIONS OF THE HONBLE CALCUTTA HIGH COURT AND JU RISDICTIONAL HIGH COURT, WE HAVE NO HESITATION IN UPHOLDING OF THE FINDINGS OF THE LEARNED CIT(A). THEREFORE, THE GROUND RAISED BY THE REVENUE IS DISM ISSED. AS THE FACTS BEING EXACTLY IDENTICAL IN THIS YEAR A LSO, RESPECTFULLY FOLLOWING THE CO- ORDINATE BENCH DECISION IN ASSESSEES OWN CASE IN ITA NO.2301/AHD/2009 (SUPRA), WE DISMISS THIS ISSUE OF THE REVENUES APPEAL. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED AND THA T OF REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 13/11/2009 SD/- SD/- (D.C.AGRAWAL) (MAHAVI R SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED :13/11/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-III, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD