SMT. MARIAMMA JOHN,KOTTAYAM vs. THE ITO< WD-2, THIRUVALLA, THIRUVALLA

Per CHANDRA POOJARI, AM:

This appeal filed by the assessee is directed against the order of the CIT(A),

Kottayam dated 30/01/2018 and pertain to the assessment year 2008-09.

as reflected in Form No. 26AS.

Rs.13,07,095/- to the assessee by Tata Teleservices. Before the Assessing

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Officer, it was stated that the amount represented the payment made to Falcon

India wherein the assessee was a partner. The partnership deed showed two

partners of the firm, Shri Stanly Joseph John and the assessee herself. Shri

Stanly Joseph John was the managing partner of the said firm. The partnership

deed stated that the assessee herself shall be a working partner and assist the

managing partner in the day to day affairs of the firm. Since Form 26AS was

bearing the Pan No. of the assessee, the said amount reflected therein was

considered as the income of the assessee.

observed that on the payment of Rs.13,07,095/-, TDS was deducted by Tata

Teleservices under the PAN number of the assessee. The CIT(A) observed that

neither the assessee made any effort to take up the issue with Tata Teleservices

for correction of the PAN which was wrongly quoted by the Tata Teleservices as

per the assessee nor the assessee ensured that the firm Falcon India filed any

return of income reflecting the receipt of Rs.13,07,095/-. Considering the fact

that the assessee failed to discharge the burden placed on her, the CIT(A) held

that the Assessing Officer had rightly assessed the amount of Rs.13,07,095/- in

the hands of the assessee.

M/s. Falcon India entered into an agreement with TTSL for distribution of their

I.T.A. No.101/Coch/2018

products. M/s. Falcon India was having PAN AABEF 7841D, TIN No.

3206065289. It was submitted that the partners of the firm were the assessee

herself and Shri Stanley Joseph John. As per the deed, Shri Stanley Joseph John

was the managing partner and the assessee was a working partner. It was

submitted that from the partnership deed, PAN No. and KVAT registration, it was

very clear that Falcon India was a separate entity. It was submitted that the

vendor statement accounts of TTSL confirmed that the business of Tata

Teleservices was with M/s. Falcon India and therefore, the impugned amount

belonged to M/s. Falcon India only. It was stated that it was only due to a

mistake that the PAN of the assessee was mentioned. It was submitted that the

assessee took various steps to get the 26AS Form corrected by Tata

Teleservices, but since the company had closed operations in Kerala, the same

could not be done. The Ld. AR referred to section 68 wherein it was stated that

where any sum is found credited in the books of an assessee maintained for any

previous year and assessee offers no explanation about the nature and source

thereof or the explanation offered by him/her was not satisfactory in the opinion

of the Assessing Officer, the sum so credited may be charged as income of the

assessee of the previous year. It was submitted that the Assessing Officer had

no case that the sums were found credited in the books maintained by the

assessee and therefore, the addition cannot be made only on the ground that

the amount appeared in 26AS.

I.T.A. No.101/Coch/2018

5.1 In this connection, the Ld. AR relied on the following decisions –Income

Tax Appellate Tribunal, Chennai in the case of P.K. Rajasekhar dt.

15/09/2016

"..........that the ossessee is engaged in the business of laying cables.

During the year under consideration, the assessee has received a sum of

Rs.64,85,397/- from M/s Tulip Telecom P. Ltd. The assessee has offered

the above said sum of Rs.64,85,397/- for taxation. However, while filing

the TDS return, M/s Tulip Telecom P. Ltd. appears to have claimed a

sum of Rs.26,84,856/- paid to the assessee. Out of the so-called claim of

M/s Tulip Telecom P. Ltd., a sum of Rs.58,36,556/- was said to be given

credit on 01.07.2010 is totally incorrect. When the assessee contacted

the company M/s Tulip Telecom P. Ltd., they said they will rectify the

TDS return filed electronically. However, they have not rectified. Since

the amount was not paid, according to the Ld. counsel, the some cannot

be taken as income of the assessee. According to the Ld. counsel, a

wrong entry filed by the deductor cannot be a reason to treat the same

as income of the assessee.

This Tribunal is of the considered opinion that even though the burden of

proof is initially on the shoulder of the assessee, the Assessing Officer is

also equally responsible to find out whether the credit entry found on

01.07.2010 is genuine or not. The Assessing Officer cannot take

advantage of the ignorance or handicap of the assessee and soy that

I.T.A. No.101/Coch/2018

there was undisclosed receipt by the assessee. When the assessee

claims that the entry as on 01.07.2010 is a wrong entry, the Assessing

Officer in all fairness has to examine the same and find out whether

there was genuine entry or not. The Assessing Officer was conferred the

power of civil court to examine and find out the real nature of

transaction. If the Assessing Officer could not exercise the power

conferred on him, it is not known how the individual citizen of this

country will be able to find out the genuineness of the transaction.

Therefore, in order to meet the ends of justice, this Tribunal is of the

considered opinion that the Assessing Officer has to find out the address

and thereafter find out whether so-called credit of Rs.58,36,556/- said to

be given on 01.07.2010 is a genuine transaction or it is a wrong entry.

Thereafter, the Assessing Officer has to decide the same in accordance

with law. Accordingly, the orders of the authorities below are set aside

and the entire issue is remitted back to the file of the Assessing Officer.

The Assessing Officer shall re-examine the matter afresh in the light of

the material available on record and therefore decide the same in

accordance with law after giving a reasonable opportunity to the

assessee.

In the case of ITO vs. Ch. Atchaiah (1966) 218 1TR 239 (SC), the

Hon'ble Supreme Court held that the AO can and he must, tax the right

person and the right person alone. The 'right person' is meant to be the

I.T.A. No.101/Coch/2018

person who is liable to be taxed, according to law, with respect to a

particular income.

It is submitted that since the amounts do not relate to the appellant the

appellant is not the right person liable to be taxed.

VIKASH YADAV VS. ITO, WARD-2, 2016 (9) TM1 500 - ITAT DELHI

FDRS Interest taxability-income accrued - Held that:-Assessee is

engaged in the business of sales of bikes and owner of bikes are insured

with M/s National Insurance Co. Ltd. or assessee Induslnd Bank. All sums

received by the assessee as job charges duly declared. No dealings of

the assessee with National Insurance Co. Ltd. and books of accounts has

been accepted. No such sums received by the assessee. On perusing a

Certificate from the Bank along with copy of FDR it shows that the

interest is on account of FDRs of wife of the assessee Smt. Sarita Yadav.

It is of the view that once no sum is credited in the books of accounts of

the assesssee, it is really not known how any figure reflected in Form

26AS can be treated as income of the assessee as Form 26AS neither

forms part of books of accounts of the assessee, As find considerable

cogency in the assessee's counsel that it is a well settled law that the

bank account is not books of account of the assessee, therefore, the

Form 26AS cannot be made a basis for addition.

I.T.A. No.101/Coch/2018

As regards the TDS Certificate is concerned, on perusing the records, as

noted that the National Insurance Company has issued a TDS Certificate

in the name of the assessee and mere issue of TDS certificate does not

establish that there is any income credited to the income of the assessee

as no sum is either due to the assessee or any sum has been actually

received by the assessee, thus the addition of Rs.11,605/- and Rs.

8,47,592/- is not tenable in the eyes of law, hence, the same are

deleted. With regard to addition of Rs.4,19,563/- relating to FDR

interest, from the records, it reveals that this amount relates to Smt.

Sarita Yadav, W/o Sh. Vikas Yadav, who is a regular income tax

assessee. The FDRs interest and TDS claim was duly made in her return.

The TDS deducted under the assessee PAN actually its belong to her.

Nor the interest is claimed by the assessee nor the benefit of TDS is

availed. Hence, the addition in dispute is untenable and the same is

deleted. - Decided in favour of assesse

INCOME TAX OFFICER VS. SH. BASANT KUMAR S/O SH. SHEO NARAI. 2015 (11) TM1 1127 - ITAT DELHI

Addition on account of suppressed receipts - Additions on the basis of

26AS statement - CIT(A) deleted the addition - as per OLTAS information,

26AS details and also per TDS form 16A the amount has been credited to

the account of the assessee by the company - whether there is no record

with the company that the payment has been made directly to the

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retailers? - Held that:- As evident from affidavit a copy placed the

assessee has categorically stated that the impugned "amount of

Rs.58,78,256 shown in form No. 26AS was neither received by me nor

receivable to me" and that "the above stated amount was directly paid by

the Vodafone Essar Digilink Ltd to the retailers of the company, a

complete list of which is provided by the company and placed on file". We

have further noted that vide letter dated 15.12.2011 (duly acknowledge

by the office on 23,12.2011 Vodafone Digilink Ltd has given a complete

break up of Rs.58 ,78,256 and given details of the retailers to whom the

related payments have been made. There is no material to_come to the

conclusion that assessee ever received any such coupons or payments nor

the same are reflected in his books of accounts or bank statements. The

fact that these payments are made by coupons and vouchers etc, can also

not be put against the assessee since the assessee never received the

same and there is no evidence to the contrary…… On these facts, in our

considered view, learned CIT(A) was quite justified in deleting the

impugned addition. We approve his conclusions, and decline to interfere

in the matter. Decided in favour of assessee.”

5.2 Thus, it was therefore prayed that the Tribunal considering the fact the

payments were not made to the assessee may delete the addition made by

the ssessing Officer adopting the figure from the Form 26AS.

I.T.A. No.101/Coch/2018

Form 26AS showed the receipt of amount of Rs.13,07,095/- and also PAN of the

assessee. However, the contention of the Ld. AR is that the amount shown in

Form 26ASA was not related to the assessee, on the other hand, it was related

to M/s. Falcon India wherein the assessee was a partner and the PAN No. of the

assessee was wrongly mentioned in Form 26AS. In our opinion, it is appropriate

to remit this issue to the file of the Assessing Officer to examine who has

rendered the services to Tata Teleservices, who actually received the said

amount and in whose account the said amount was deposited. Accordingly, the

Assessing Officer has to tax the same in the hands of the assessee only if the

assessee has actually rendered the services to Tata Teleservices and

correspondingly received the said amount for the services rendered to Tata

Teleservices. Hence, we remit this issue to the file of the Assessing Officer for

fresh consideration on above lines.

I.T.A. No.101/Coch/2018

purposes. Order pronounced in the open Court on this 20th February, 2019

sd/- sd/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Place: Kochi Dated: 20th February, 2019 GJ

Copy to: 1. Smt. Mariamma John, Kochuveettil House, Kuttickal, Illimattom, South Pampady P.O., Kottayam-686 502. 2. The Income Tax Officer, Ward-2, Tiruvalla. 3. The Commissioner of Income-tax(Appeals), Kottayam. 4. The Pr. Commissioner of Income-tax, Kottayam. 5. D.R., I.T.A.T., Cochin Bench, Cochin. 6. Guard File. By Order

(ASSISTANT REGISTRAR) I.T.A.T., Cochin