Shree Vinayak Udyog, Kolkata V. ITO, Ward - 36(2), Kolkata, Kolkata

ITA 566/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2561 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 19-03-2010
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Assessee Lawyers: P R KOTHARI
• Section: 145; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL 'B BENCH : KOLKATA (BEFORE HONBLE SRI B.R.MITTAL, J.M. AND HON BLE SRI B.C.MEENA, A.M.) I.T.A. NO. 566 /KOL/2010 ASSESSME NT YEAR : 2004-05 SHRI VINAYAK UDYOG VS IT O, WARD-36(2), KOLKATA (PAN NO. ABAFS 2661 N ) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI P.R.KOTHARI. RESPONDENT BY : SMT.JYOTI KUMARI. O R D E R PER SHRI B.C.MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-XX, KOLKATA DATED 3.02.2010 FOR THE ASSESSMENT YEAR 20 04-05. 2. GROUNDS OF APPEAL READ AS UNDER : 1. ADDITION OF RS.34,00,000/- RECD. AS ADVAN CE JOB CHARGES : A) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UP HOLDING THE ORDER OF LD. ASSESSING OFFICER ADDING AS INCOME, A SUM OF RS.3400000/- RECEIVED AS ADVANCE JOB CHARGES OVERLOOKING THE FACT TH AT APPELLANT WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING. B) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE LD. CIT(A) ERRED IN OBSERVING THAT THE APPELLANT WAS NOT ABLE TO ESTABLISH THAT THE ABOVE-MENTIONED AMOUNT OF RS.3400000/- WAS RECEIVED AS ADVANCE JOB CHARGES IGNORING THE CLARIFICATION L ETTER ISSUED BY THE TAX DEDUCTOR IN THIS REGARD. 3. THE ONLY ISSUE INVOLVED IN THE GROUND IS REGAR DING TAXABILITY OF RS.34,00,000/- . THE ASSESSEE CLAIMED THAT IT WAS RECEIVED AS ADVANCE TO BE ADJUSTED AGAINST THE JOB FUTURE CHARGES. THE CIT(A ) SUSTAINED THE ADDITION BY HOLDING AS UNDER : 3- GROUND NO. 1, 2 & 3 RELATE TO ADDITION OF RS.34 ,00,000/-. AS THESE GROUNDS ARE INTER-LINKED, THEY ARE TAKEN TOGETHER. THE BRIE F FACTS OF THE CASE ARE THAT THE APPELLANT FILED THE RETURN ON 01-11-2004 SHOWING TO TAL LOSS OF RS.3,49,127/-. THE 2 APPELLANT CLAIMED TDS OF RS.70,000/- AND ENCLOSED T HE TDS CERTIFICATE, WHICH REVEALED THAT THE APPELLANT HAD RECEIVED AN AMOUNT OF RS.34,00,000/- FROM M/S BALASORE ALLOYS LTD, ON ACCOUNT OF TRANSPORTATION CHARGES. THE AO FOUND THAT THE RECEIPT OF RS.34,00,000/- IS NOT CREDITED IN THE P& L A/C. THE AO ISSUED NOTICE U/S 148 AND PROCEEDINGS U/S 147/143(3) WERE TAKEN UP. IT WA S EXPLAINED BEFORE THE AO THAT THE APPELLANT HAD NOT RECEIVED ANY TRANSPORTATION C HARGES, AND, THAT THE TDS CERTIFICATE WAS WRONGLY ISSUED BY M/S BALASORE ALLO YS LTD. IN FACT, THE AMOUNT WAS RECEIVED AS ADVANCE AGAINST JOB WORK. THE APPELLANT ALSO FILED A LETTER DATED 27-07- 2009 FROM M/S BALASORE ALLOYS LTD, CLARIFYING THAT THE TDS CERTIFICATE WAS ISSUED FOR JOB WORK AND NOT TRANSPORTATION CHARGES. THE AO DID NOT ACCEPT THE EXPLANATION. THE AO NOTED THAT ANY CHANGE IN THE NATURE OF PAYMENT D OES NOT CHANGE THE BASIC FACT THAT THE APPELLANT HAS RECEIVED AN AMOUNT OF RS.34, 00,000/-, WHICH HAS NOT BEEN CREDITED IN THE P&L A/C; AND, ON THE OTHER HAND, TH E APPELLANT HAS CLAIMED FULL CREDIT FOR THE TDS OF RS.70,000/-. THE AO ALSO NOTED THAT M/S BALASORE ALLOYS LTD HAS ALREADY FILED ITS TDS RETURN, SHOWING THE NATURE OF PAYMENT AS TRANSPORTATION CHARGES. IN VIEW OF THE ABOVE, THE AO HELD THAT THE GROSS RECEIPT OF RS.34,00,000/- IS TAXABLE IN THE HANDS OF THE APPELLANT; AND THEN, AD DED THE SAME TO THE INCOME OF THE APPELLANT. THE LD. AR APPEARED FOR THE APPELLANT AND REITERATE D THE SUBMISSION ALREADY MADE BEFORE THE AO. I FIND NO SUBSTANCE IN THE SUBMISSIO N. THE TDS CERTIFICATE FILED BY THE APPELLANT CLEARLY SHOWS THAT IT HAS RECEIVED AN AMO UNT OF RS.34,00,000/- AS TRANSPORTATION CHARGES. THE LETTER DATED 27-07-2009 FROM M/S BALASORE ALLOYS LTD CLARIFIES THAT JOB WORK INSTEAD OF TRANSPORTATIO N CHARGES SHOULD HAVE BEEN MENTIONED IN THE TDS CERTIFICATE UNDER THE COLUMN - THE NATURE OF PAYMENT. I AM OF THE OPINION THAT THE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH THAT THE AMOUNT WAS RECEIVED AS ADVANCE, AND, THAT IT IS NOT TAXABLE IN ITS HANDS. THE APPELLANT HAS NOT CREDITED THE AMOUNT IN THE P&L A/C; AND, ON THE OTH ER HAND, CLAIMED CREDIT FOR THE TDS. IN VIEW OF THE ABOVE, I FIND NO REASONS TO INT ERFERE WITH THE ORDER OF THE AO, WHICH IS UPHELD. THE GROUNDS RAISED BY THE APPELLAN T ARE LIABLE TO BE DISMISSED. 4. THE LEARNED A.R. SUBMITTED AS UNDER : THE APPELLANT HAD ENTERED INTO AN AGREEMENT (MOU) ON 24 .02.03 (PAPER BOOK PAGE NO. 3 TO WITH ISPAT ALLOYS LIMITED (SUBSEQUENTLY CHANGED TO BALASORE ALLOYS LIMITED AND HEREINAFTER CALK AS BALASORE ALLOYS) UNDER WHICH THE APPELLANT WAS REQUIRED TO PROCESS THE CHROME ORE SUPPLIED BY BALASORE ALLOYS AFTER SETTING UP REQUIRED UPGR ADATION PLANT. BALASORE ALLOYS WAS REQUIRED TO GIVE CERTAIN ADVANCES/DEPOSITS TO THE APPELLANT TOWARDS COST OF PLANT & MACHINERY, REIMBURSEMEI FOR CONSTRUCTION OF FACTORY SHED, BORI NG WELL AND THE OFFICE SPACE AND ACCOMMODATION WHICH WAS TO BE ADJUSTED AGAINST THE BILLS TO BE RAISED BY THE APPELLANT FOR PROCESSING CHARGES OF CHROME OR (PAPER BOOK PAGE NO . 5,6 AND 8). ACCORDINGLY, BALASORE ALLOYS MADE FOLLOWING PAYMENTS TOWARDS AFORESAID ADVANCE/D EPOSITS & RE- IMBURSEMENTS: A) DIRECTLY TO THE APPELLANT: DATE OF RECEIPT OF PAYMENT CHEQUE T.D.S TOTAL 06.03.2003 35000 0/- - 350000/- 10.04.2003 35000 0/- - 350000/- 12.09.2003 67060 0/- 29400/- 700000/- 21.11.2003 30000 0/- - 300000/- 11.12.2003 28740 0/- 12600/- 300000/- 18.03.2004 67200 0/- 28000/- 700000/- 2630000/- 70000/- 2700000/- 3 LESS: AMOUNT ADJUSTED BY APPELLANT TOWARDS: A) COST OF FACTORY SHED 554639.80 (PAPER BOOK PAGE NO. 12) B) COST OF BORE WELL 26444.00 (PAPER BOOK PAGE NO. 13) 581083. 80 SHOWN RS.21 18916.20 AS LIABILITY IN B/SHEET AS ON 31.03.04 (BEING RS.2700000/- RS.58 1083.80) (PAPER BOOK PAGE NO. 11) B) PAID TO OTHER PARTIES AS ADVANCE 7 00000/- 3400000/- AS THE APPELLANT WAS UNDISPUTEDLY FOLLOWING MERCANT ILE SYSTEM OF ACCOUNTING (1 ST PAGE OF ASSESSMENT ORDER), THE ADVANCE/DEPOSIT RECEIVED FR OM BALASORY ALLOYS AS EXPLAINED ABOVE WAS NOT CREDITED AS INCOME IN PROFIT & LOSS ACCOUNT AS THE SAID AMOUNT DID NOT ACCRUE TO THE APPELLANT DURING THE YEAR UNDER CONSIDERATION AND W AS RIGHTLY SHOWN AS LIABILITY IN BALANCE SHEET AS ON 31.3.2004 AFTER ADJUSTMENT TOWARDS COS T OF FACTORY SHED & BORING WELL AS EXPLAINED ABOVE. (PAPER BOOK PAGE NO. 11) THE JOB CHARGES DO NE FOR BALASOR ALLOYS WORTH RS. 200616.08 DURING THE YEAR UNDER CONSIDERATION WERE DULY SHO WN AS INCOME IN THE P & L A/C OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION (PAPER BOOK PAGE NO. 14). THE APPELLANT DUE TO CLERICAL OVERSIGHT, CLAIMED DU RING THE YEAR UNDER CONSIDERATION THE CREDIT FOR T. D. S. OF RS.70000/- DEDUCTED BY BALASORE AL LOYS AGAINST THE ADVANCES GIVEN AS EXPLAINED ABOVE THOUGH SAID T. D. S. SHOULD HAVE BEEN CLAIMED IN THE YEAR IN WHICH THE CORRESPONDING INCOME WOULD HAVE ACCRUED TO THE APPELLANT AND WOUL D HAVE BEEN CREDITED IN PROFIT & LOSS ACCOUNT FOR OFFERING FOR TAXATION. INITIALLY, THERE WAS A MISTAKE OF BALASOR ALLOYS SHOWING THE NATURE OF PAYMENT OF ADVANCE/DEPOSITS OF RS.3400000/- AS TRANSPORTATION CHARGES IN ITS T.D.S. CERTIFICATE FOR RS.70000/- DEDUCTED AS SHOWN ABOVE INSTEAD OF ADVANCE AGAINST JOB CHARGES (PAPER BOOK PAGE NO. 16 & 17), BUT THE SAID MISTAKE WAS RECTIFIED BY A CLARIF ICATION LETTER SUBSEQUENTLY ISSUED BY BALASORE ALLOYS (PAPER BOOK PAGE NO. 15) (THE COPY OF SAID L ETTER WAS ALSO FURNISHED BEFORE THE ID. AJO DURING THE ASSMT. PROCEEDINGS ITSELF). THE ARBITRAT ION PETITION FILED BY BALASORE ALLOYS BEFORE HONBLE ORISSA HIGH COURT ALSO CONFIRMED THAT THE A MOUNT PAID BY BALASORE ALLOYS WAS IN THE NATURE OF ADVANCE/ DEPOSITS (PAPER BOOK PAGE NO. 22 OUT OF PAPER BOOK PAGE NO. 18 TO 27). THE LD. A/O, HOWEVER, ADDED AS INCOME, THE AFORESAID ADVANC E/DEPOSITS OF RS. 3400000/- MADE BY BALASORE ALLOYS. THE LD. CIT(A) ALSO, WITHOUT APPRE CIATING THAT APPELLANT WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND IGNORING THE FA CT THAT TAX DEDUCTORS CLARIFICATION LETTER AND ARBITRATION PETITION CONFIRM THAT SUBJECT AMOUNT OF RS.3400000/- WAS PAID AS ADVANCE/ DEPOSIT, CONFIRMED THE ADDITION OF RS.3400000/- MADE BY LD. A.O. APPELLANTS CONTENTION: AS THE LD. AO AND LD. CIT(A) DID NOT FIND ANYTHING WRONG ABOUT THE LETTER DATED 27.07.09 OF BALASORE ALLOYS CLARIFYING ITS MISTAKE IN MENTIONIN G TRANSPORTATION CHARGES INSTEAD OF ADVANCE AGAINST JOB CHARGES IN THE T.D.S. CERTIFICATE OF RS .70000/- ISSUED BY SAID BALASORE ALLOYS AND ABOUT THE ARBITRATION PETITION FILED BY BALASORE ALLOYS B EFORE HONBLE ORISSIA HIGH COURT AND IN VIEW OF THE FACT THAT UNDER MERCANTILE SYSTEM OF ACCOUNT ING ADVANCES/DEPOSITS ARE NOT TREATED AS INCOME UNTIL THEY ARE ACCRUED, THE IMPUGNED ADDITIO N OF RS.3400000/- IS QUITE UNJUSTIFIED. AS PERFORMED DURING THE YEAR AMOUNTED TO RS.200616.08 AND ONLY THE SAID AMOUNT ACCRUED TO APPELLANT AS INCOME FOR THE YEAR (WHICH WAS ALREADY DULY TAKEN AS INCOME IN THE P & L A/C OF YEAR). THUS, THE ADVANCE/DEPOSIT OF RS.3400000/- WA S WRONGLY ASSESSED AS INCOME BY THE ID. A.O. WHICH WAS CONFIRMED BY THE LD. CIT(A). IN THE INSTANT CASE, THE CLAIM OF T. D. S. OF RS.70 000/- BY THE APPELLANT AND GRANT OF REFUND AGAINST BY THE DEPARTMENT WAS THE ONLY MISTAKE WHICH COULD HAVE BEEN RECTIFIED SIMPLY REFUSING TO GRANT CREDIT FOR T. D. S CLAIMED AND CONSEQUENT RECOVERY OF WRONGLY GRANTED REFUND INTEREST. YOUR HONOUR MAY APPRECIATE THAT THE APPELLANT HAD ALREAD Y PAID BACK THE SAID AMOUNT OF REFUND WITH DUE INTEREST THEREON. (PAPER BOOK PAGE NO. 28) YOUR HONOUR MAY ALSO APPRECIATE THAT DISPUTE AROSE BETWEEN THE APPELLANT AND BALASORE ALLOYS IN THE YEAR 2005, BALASORE ALLOYS FILED AN ARBITRAT ION PETITION BEFORE HONBLE ORISSA HIGH COURT. IN THAT ARBITRATION PETITION ALSO, BALASORE ALLOYS CLAIMS THE AMOUNT PAID TO THE APPELLANT AS INVESTED BY IT I.E. ADVANCE/DEPOSITS AND NOT AS JOB CHARGES OR TRANSPORTATION CHARGES PAID. (PAPER 4 BOOK PAGE NO. 22 OUT OF PAPER BOOK PAGE NO. 18 TO 2 7). ULTIMATELY, AS PER THE ARBITRATION THE APPELLANT HAD TO PAY RS.2500000/- TO BALASORE ALLOY S. (PAPER BOOK PAGE NO. 42 OUT OF PAPER BOOK PAGE NO. 35 TO 45). IN THE PREMISES, IT IS PRAYED BEFORE YOUR HONOUR TO ALLOW THE APPELLANTS APPEAL AND TO DELETE ADDITION OF RS.3400000/-. THE APPELLANT SHALL HAVE NO OBJECTION IF CREDIT FOR T.D.S. OF RS.70000/- ALLOWED BY THE LD. A.O. IS DIRECTED TO BE WITHDRAW N. AND HE ALSO RELIED ON THE FOLLOWING CASE LAWS: 1. CIT VS CORAL ELECTRONICS (P) LTD. (192 CTR 369) WHERE THE HONBLE HIGH COURT HELD AS UNDER : THE AMOUNT THAT WAS RECEIVED WAS ONLY AS CHARGES F OR THE SERVICES TO BE RENDERED IN FUTURE. THE SERVICES MAY BE RENDE RED OR MAY NOT BE RENDERED DEPENDING UPON WITHDRAWAL OF THE MONEY AS AND WHEN THE CUSTOMER REQUIRED. SO, IT IS HIGHLY UNCERTAIN A S TO WHETHER IT WOULD AT ALL REMAIN AS INCOME OF THE ASSESSEE. ONLY WHEN THE SERVICE IS DONE THE ASSESSEE HAS A RIGHT OVER THE AMOUNT TH AT WAS DEPOSITED. TILL THEN, HE HAS NO RIGHT OVER THE SAME. IT IS IN THAT SENSE TILL THEN, IT CANNOT BE CONSIDERED AS AN INCOME OF THE ASSESSEE A ND IS NOT EXIGIBLE TO TAX. 2. K.K.KHULLAR VS DCIT [ 2009 ] (116 ITD 301 (DELHI) WHERE THE HONBLE DELHI HIGH COURT HAS HELD AS UNDER : WHILE SECTIONS 4 AND 5 DEAL WITH THE SCOPE OF INCOME AND ITS CHARGE TO INCOME TAX , SECTION 145 IS A PROCEDURAL SECTION REGARDING THE METHOD TO BE FOLLOWED FOR RECORDING OF INCOME IN THE BOOKS O F ACCOUNT. IT IS NO DOUBT TRUE THAT FOR THE ASSESSMENT YEAR 1997-98 AND ONWAR DS, THE ASSESSEE COULD FOLLOW EITHER CASH OR MERCANTILE SYSTEM OF ACCOUNT ING AND THE HYBRID SYSTEM OF ACCOUNTING WAS PROHIBITED . HOWEVER, WH AT IS TO BE TAXED IS INCOME AND RECEIPT OF AN AMOUNT IS NOT THE BASIS FOR THE LEVY OF TAX. IN CIT VS SHOORJI VALLABHDAS & CO. [1962] 46 ITR 14 4, THE SUPREME COURT HAS POINTED OUT THAT THE ACT TAKES INTO ACCOUNT TW O POINTS OF TIME ON WHICH THE LIABILITY TO TAX IS ATTRACTED, NAMELY, (I) A CCRUAL OF INCOME OR (II) RECEIPT OF INCOME. IT HAS FURTHER BEEN MENTIONED THAT THE SUBSTANCE OF THE MATTER IS INCOME. IT IS ACCRUAL OF INCOME OR REC EIPT OF INCOME THAT CAN BECOME THE SUBJECT MATTER OF TAX AND IT IS THE I NCOME WHICH HAS TO BE RECORDED AS PER SYSTEM OF ACCOUNTING FOLLOWED BY T HE ASSESSEE IN VIEW OF SECTION 145, BECAUSE THE SUBSTANCE OF THE MATTER IS INCOME. IN THE INSTANT CASE, THE ASSESSEE HAD RECEIVED CERTAIN AM OUNTS FOR SERVICES TO BE PERFORMED OVER A PERIOD OF TIME. THE AMOUNT RELA TABLE TO THE SERVICES RENDERED IN THE YEAR UNDER CONSIDERATION WAS SHOWN AS INCOME , THE REASON BEING THAT THE ASSESSEE HAD BECOME ENTITLED TO REC EIVE THAT AMOUNT FROM THE CLIENT IN RESPECT OF THE SERVICES RENDERED. IN OTHER WORDS, DEBT TO THE EXTENT OF THE AMOUNT PERTAINING TO SERVICES RENDERE D ONLY GOT VESTED IN THE 5 ASSESSEE ; THE REST OF THE AMOUNT WAS TAKEN AS LI ABILITY TO BE ADJUSTED IN THE SUBSEQUENT YEAR AS AND WHEN THE SERVICE WAS R ENDERED. IT WAS CLEAR THAT THE EXCESS AMOUNT WOULD HAVE TO BE RETURNED IN CASE THE SERVICE WAS NOT PERFORMED IN THE SUBSEQUENT YEAR AND, THEREFOR E, IN RESPECT OF SUCH AMOUNT NO DEBT WOULD COME INTO EXISTENCE IN FAVOU R OF THE ASSESSEE. THEREFORE, THAT AMOUNT DID NOT BECOME THE INCOME. ACCORDINGLY, THE COMMISSIONER (APPEALS) HAD ERRED IN FINDING THAT TH E ASSESSEE WAS FOLLOWING A HYBRID SYSTEM OF ACCOUNTING ON THE GR OUND THAT THE WHOLE OF THE AMOUNT RECEIVED FROM THE CLIENTS AS RETAINER SHIP FEES WAS NOT DECLARED AS INCOME IN THE YEAR OF RECEIPT OF T HE AMOUNT. 5. ON THE OTHER HAND, THE LEARNED D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6. AFTER HEARING BOTH THE SIDES AND DETAILS, WE H OLD THAT THE ASSESSEE ENTERED INTO MOU ON 25.10.2003. AS PER THIS MOU ASSESSEE WAS TO RECEIVE AS ADVANCE AS PER CLAUSE G WHICH READS AS UNDER : (G) M/S IAL WILL PAY AS ADVANCE TO M/S SVU TOWARDS COST OF PLANT AND MACHINERY IN THE FOLLOWING MANNER : I) RS.3.50 LACS (THREE LAC FIFTY THOUSAND) AT TH E TIME OF SIGNING OF THE CONTRACT. II) RS.3.50 LACS (THREE LAC FIFTY THOUSAND) A FTER ONE WEEK FROM THE DATE OF SIGNING OF THE CONTRACT. III) RS.7.00 LACS (SEVEN LACS) AT THE TIME OF I NSTALLATION OF PLANT AND MACHINERY AT ISPAT MINE SITE. IV) ADVANCES AS MENTIONED ABOVE IN POINT NO . IV-(G) (I), (II) & (III) OF PAYMENT TERMS WILL BE ADJUSTED AGAINST THE RUNNING BILLS OF SVU AS PER POINT IV(F) V) RS.7.00 LACS (SEVEN LACS) ON COMMENCEMENT OF PRODUCTION . (TO BE REFUNDED BY SVU AT THE TIME OF TERMINATION OF TH E CONTRACT). AS PER CLAUSES 2(M), (N) & (O) OF MOU THE ASSES SEE WAS ALSO TO PROVIDE INFRASTRUCTURE AS UNDER : 2. SVU SHALL :- (M) CONSTRUCT A SHED OF APPROX. 4000 (FOUR THOUS AND) SQ. FT. REQUIRED FOR PROTECTION OF PLANT, MACHINERY AND ELECTRICAL FOR WHICH IAL WILL REIMBURSE SVU A SUM NOT EXCEEDING RS.3.00 (THREE) LACS @ RS.1.00 (ONE) LAC PER ANNUM. (N) DO NECESSARY BORING FOR WATER AND INSTAL L ADEQUATE CAPACITY PUMP REQUIRED FOR THE SAID PLANT, FOR WHICH IAL WILL REIMBURSE SVU UPTO AN EXTENT OF RS.50,000.00 (FIFTY THOUSAND) ONLY. ALL EXPENSES BEYOND RS.50,000.00 (FIFTY THOUSAND) WILL BE BORNE BY S VU. 6 (O) CONSTRUCT NECESSARY OFFICE SPACE AND ACCOM MODATION FOR STAFF/LABOUR AT SITE FOR WHICH M/S IAL WILL REIMB URSE UPTO AN EXTENT OF RS.50,000.00 (FIFTY THOUSAND) ONLY BEYOND WHICH A LL EXPENSES WILL BE BORNE BY SVU. AS PER MOU ASSESSEE WAS TO RECEIVE IN TOTAL RS.21,0 0,000/- ONLY OUT OF WHICH RS.14,00,000 WAS TO BE ADJUSTED AGAINST THE RECEI VING BILLS. AS PER DETAILS SUBMITTED IN THE WRITTEN SUBMISSIONS THE ASSESSEE HAD SHOWN RECEIPT OF RS.27,00,000 AS FOLLOWS : DATE OF RECEIPT OF PAYMENT CHEQUE T.D.S TOTAL 06.03.2003 35000 0/- - 350000/- 10.04.2003 35000 0/- - 350000/- 12.09.2003 67060 0/- 29400/- 700000/- 21.11.2003 30000 0/- - 300000/- 11.12.2003 28740 0/- 12600/- 300000/- 18.03.2004 67200 0/- 28000/- 700000/- 2630000/- 70000/- 2700000/- THERE IS TDS OF RS.70,000 OUT OF THREE RECEIPTS . ASSESSEE ALSO CLAIMS THAT RS.7,00,000 WAS RECEIVED BY OTHER PARTIES BUT NO D ETAILS IN THIS REGARD WERE SUBMITTED BEFORE THE AUTHORITIES BELOW AND BEFORE U S . AS PER ARBITRATION PETITION , THE AMOUNT CLAIMED TO HAVE BEEN ADVANCES IS MORE TH AN RS.28,00,000. THE T.D.S. CERTIFICATE SHOWS RECEIPT OF RS.34,00,000. THUS T HE FACTS SHOW THAT THE AUTHORITIES BELOW AS WELL AS ASSESSEE HAD NOT BROUGHT THE CO RRECT FACTS ON RECORDS. IN THE PAPER BOOK A NEW DOCUMENT IN FORM OF ARBITRATION AWARD DATED 20.10.2009 HAD BEEN FILED. KEEPING ALL THESE ASPECTS IN VI EW AND IN THE INTEREST OF JUSTICE, WE FIND IT APPROPRIATE TO SET ASIDE THE ISSUE TO T HE FILE OF THE A.O. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.06.2010 SD/- SD/- (B.R.MITTAL ) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11.06.2010 7 COPY FORWARDED TO :- 1) ITO, WARD 36(2), KOLKATA. 2) SHREE VINAYAK UDYOG, 23A, NETAJI SUBHASH ROAD, 11 TH FLOOR, ROOM NO. 11, KOLKATA. 3) CIT(A), KOLKATA. 4) CIT, KOLKATA. 5) D.R., ITAT, KOLKATA. BY ORDER BCD ASSISTANT REGISTRAR I.T.AT., KOLKATA.