The ITO, 5(2), Indore V. SHRI MOHAMMED SHAKEEL KHAN, Indore

ITA 737/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5883 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 24-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO.737/IND/2014 A.Y. : 2010-11. ITO, SHRI MOHAMMED 5(2), VS. SHAKEEL KHAN, INDORE INDORE APPELLANT RESPONDENT PAN NO.AKUPK8307L APPELLANTS BY : SHRI R.A.VERMA, DR RESPONDENT BY : SHRI S.S.DESHPANDE, C. A. DATE OF HEARING : 24. 1 1 .2015. DATE OF PRONOUNCEMENT : 05.01 .201 6 ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 2 2 O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 28.08.2014, FOR THE ASS ESSMENT YEAR 2010-11. 2. THE REVENUE HAS TAKEN FOLLOWING GROUND OF APPEAL :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 29,12,648/- RIGHTLY MADE ON THE BASIS OF ENTRIES IN FORM 26AS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM CIVIL CONTRACT. THE RETURN OF INCOME WAS FILED DECLARING THE TOTAL INCOME OF RS. 3,75,514/-. THE ACCOUNTS ARE AUDITED AND THE TAR IS FILED. THE BOOKS OF ACCOUNT HAVE BEEN EXAMINED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE MAIN CONT RACT OF CONSTRUCTION IS FROM B. R. GOYAL INFRASTRUCTURES PR IVATE LIMITED. WHILE FRAMING THE ASSESSMENT, THE LD. AO HAS ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 3 3 MADE THE ADDITION OF RS. 29,12,648/- ON THE GROUND THAT THE TDS HAS BEEN PAID BY B. R. GOYAL ON RS. 2,29,93,148/- WHILE THE ASSESSEE HAS SHOWN THE RECE IPT OF RS. 2,00,80,500/-. IT WAS EXPLAINED TO THE LD. AO THAT THE PAYER HAS MADE THE PAYMENT OF TDS ON THE ADVANCES GIVEN TO THE PARTY AND ALSO ON THE REGULAR BILLS SUBMITTED BY THE PARTY. THUS, THERE WAS A DOUBLE DEDUCTION, ONCE ON THE ADVANCE PAYMENT AND SECONDLY ON THE BASIS OF BILLS SUBMITTED BY THE ASSESSEE. TH E LD. AO ALSO CALLED THE COPY OF ACCOUNT FROM M/S. B .R. GOYAL AND ALSO THE ASSESSEE SUBMITTED THE COPY OF ACCOUNT OF THE PRINCIPALS. THE CERTIFICATE WAS ALSO SUBMITTED FROM B. R. GOYAL STATING THAT THEY HAVE DEDUCTED THE TDS TWICE ON ADVANCE PAYMENT AND THE BILL AMOUNT. WITHOUT CONSIDERING THE ASSESSEE'S SUBMISSIONS AND THE CERTIFICATE FILED BY B.R. GOYAL AND WITHOUT TALLYING BOTH THE ACCOUNTS, THE ADDITION HA S BEEN MADE MERELY ON THE BASIS OF FIGURES GIVEN IN FORM 26AS. ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 4 4 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) DELETED THIS ADDITION BY OBSERVING AS UNDER :- 3.1 I HAVE GONE THROUGH THE WRITTEN SUBMISSION AND RELEVANT DOCUMENTARY EVIDENCES FILED BY THE APPELLANT AND OBSERVED THAT THE APPELLANT HAD REASONABLY EXPLAINED THE DIFFERENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS DULY BROUGHT TO THE NOTICE OF AO THAT THE MAIN CONTRACTOR M/S. B.R. GOYAL INFRASTRUCTURE PVT. LTD. HAD DEDUCTED THE TAXES TWICE, ONCE AT THE TIME OF MAKING ADVANCE PAYMENT AND SECONDLY ON THE BASIS OF BILLS SUBMITTED BY THE ASSESSEE. THIS FACT WAS ALSO DULY CONFIRMED BY THE DEDUCTOR M/S. B.R. GOYAL INFRASTRUCTURE PVT. LTD. VIDE THEIR LETTER DATED 27.02.2013. FURTHER, THE COPIES OF ACCOUNTS IN THE ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 5 5 BOOKS OF THE APPELLANT AS WELL AS THE DEDUCTOR WAS ALSO SUBMITTED BEFORE THE AO TO RECONCILE THE DIFFERENCE. BUT THE AO HAS GIVEN NO REASONS FOR DISBELIEVING THE EVIDENCES FILED BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO RECONCILE THE DIFFERENCE. THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS HAS FILED THE CONFIRMATION FROM M/S. B.R. GOYAL INFRASTRUCTURE PVT. LTD AND ALSO BROUGHT TO MY NOTICE THAT THE PRINCIPALS HAVE SUBSEQUENTLY REVISED FORM NO. 26AS AND GIVEN THE CORRECT PICTURE AFTER RECONCILING THE DIFFERENCE. THE COPIES OF REVISED STATEMENT AND FORM NO. 26AS HAVE ALSO BEEN FILED WHICH ARE PLACED ON RECORD. THE REVISED STATEMENTS DULY RECONCILE THE DIFFERENCE. THEREFORE, I DO NOT FIND ANY REASON TO APPROVE THE ACTION OF AO IN MAKING THE ADDITION OF RS. ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 6 6 29,12,648/-. ACCORDINGLY, THE AO IS DIRECTED TO DELETE THE SAID ADDITION. THE GROUNDS OF APPEAL ARE ALLOWED. 5. THE LD. DR RELIED UPON THE ORDER OF THE AO. 6. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT FROM THE COPY OF ACCOUNT FILED BY BOTH THE PARTIES. IT IS QUITE EVIDENT THAT ON ADVANCES, THE TDS HAS BEEN DEDUCTED BY THE PARTY. IT WOULD BE SEEN THAT THE SA ID PARTY HAS MADE THE TDS ON VARIOUS ADVANCES GIVEN ON 9TH APRIL, 18TH MAY, 30TH MAY, 10TH JUNE, 4TH JULY, ETC. WHICH IS EVIDENT FROM THE ORIGINAL DETAILS FILED IN FORM 26AS. THESE ARE ALL THE ADVANCES GIVEN. THE PARTY H AS AGAIN DEDUCTED THE TDS ON 70,29,313/-. THE SAID FACT WAS SUBMITTED BEFORE THE LD. AO. BUT WITHOUT CONSIDERING THE SAME, THE ADDITION HAS BEEN MADE. T HE FORM 26AS HAS NOW BEEN REVISED BY THE PRINCIPALS AN D NOW THE FIGURE GIVEN IN THE REVISED CERTIFICATE TAL LIES WITH ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 7 7 THE AMOUNT SHOWN BY THE ASSESSEE. THE REVISED STATEMENT AND THE COPY OF FORM 26AS IS SUBMITTED ALONG WITH THE ORIGINAL FORM 26AS. FROM THE SAID REVISED STATEMENT, IT WOULD BE SEEN THAT THE TOTAL PAYMENT AS SHOWN IN THE REVISED CERTIFICATE TALLIED WITH THE BOOKS OF THE ASSESSEE. THE LD. AUTHORIZED REPRESENTATIVE CONCLUDED THAT IN VIEW OF THE ABOVE, IT IS SUB MITTED THAT THE ADDITIONS MADE MAY PLEASE BE DELETED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE DURING THE COURSE OF APPEAL PROCEEDINGS HAS FILED THE CONFIRMATION FROM M/S. B.R. GOYAL INFRASTRUCTURE PVT. LTD AND ALSO BROUGHT THIS TO THE KNOWLEDGE OF LD. CIT(A) THAT TH E PRINCIPALS HAVE SUBSEQUENTLY REVISED FORM NO. 26AS AND GIVEN THE CORRECT PICTURE AFTER RECONCILING THE DIFFERENCE. THE COPIES OF REVISED STATEMENT AND FOR M NO. 26AS HAVE ALSO BEEN FILED. WE, THEREFORE, UPHOL D THE ACTION OF THE LD. CIT(A). THE LD. DR DID NOT PO INT OUT ANYTHING CONTRARY TO THE FINDING OF THE LD. CIT (A). ITO VS. SHRI MOHAMMAD SHAKEEL KHAN,INDORE I.T.A.NO. 737/IND/2014 A.Y. 2010-11 . 8 8 OUR INTERFERENCE IS NOT CALLED FOR. THIS GROUND OF REVENUE FAILS. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COU RT ON 5 TH JANUARY, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 5 TH JANUARY, 2016. CPU* 212