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Facts
The assessee declared a total income of Rs. 80,59,150/-. During assessment, the AO noted from Form 26AS that the assessee received Rs. 97,12,121/- as commission, with TDS deducted, while the assessee declared only Rs. 21,15,420/-. The AO added the suppressed amount to the returned income.
Held
The Tribunal noted discrepancies between the Form 26AS, the assessee's declared income, and the payer company's financial statements. Following a coordinate bench's order, the Tribunal remanded the matter to the AO to examine the issue afresh, providing the assessee with an opportunity to present evidence.
Key Issues
Whether the addition made by the AO based on Form 26AS is justified when the assessee claims the commission was never received and TDS was wrongly deducted and paid by the payer.
Sections Cited
147, 148, 143(3)
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Income Tax Appellate Tribunal, DELHI
(A.Y. 2012-13) Vijay Kumar Sachdeva Vs. ACIT C/o. Laxmi Remote (India) Ciorcle-34(1), E- Block Pvt. Ltd. PratyakshKarBhawan, B-201, Phase-II, Civic Centre, Noida New Delhi PAN: AAXPS6507P Appellant Respondent Assessee by Shri Satya Pal Gogia, Advocate Revenue by Sh. Sahil Kumar Bansal, Sr. DR Date of Hearing 05/05/2025 Date of Pronouncement 09/05/2025 ORDER
PER YOGESH KUMAR, U.S. JM:
The present appeal is filed by the Assessee against the order of the Commissioner of Income Tax (appeals)-34, New Delhi, (‘Ld. CIT(A)’ for short) dated 28/02/2017for the Assessment Year 2012-13.
2. The Grounds of Appeal are as under:-
“1. That the order is against the fact and law of the case.
That the assessee has not provided proper opportunity of being heard which is bad in law as against the principle of natural law of Justice, more over no show cause notice has ever been issued by the A/A or the First appellant Authority for filling a particular document whereas on the other hand everything is available on the Income tax portal and every Authority has an access to find out the same.
That the A/A erred in making addition on a/c of Commission which has never been received nor accrued not only in the year under assessment even till date it has never been received by the assessee and not been paid by the Company which is against the ruling of State Bank of Travancore VS Commissioner of Income Tax (Appeal) (1986) 158 ITR 102(SC) more over the first appellate authority has not taken any initiative to find out this facts.
4. That the A/A as well as the first appellate authority has not gone into the issue and not even consider the submission of the assessee before passing the order that why the commission was require to be reversed whereas the assesee has replied the same in his submission.
5. That the A/A erred in just relying on the 26 AS whereas the same is against the ruling decided by the Jabalpur Tribunal in the Case of RavindraPratapTharejaVs Income Tax Officer Ward 1(Rewa)2015(60) Taxman304 and the First Appellant Authority has erred in not considered the same 6. That the A/A as well as first appellant authority further erred in stating that the T.D.S return can be revised without gone into the full facts and the limitation of revising the TDS return that the asseseecannot claim refund in the original as well as in the revised return of T.D.S and he further ignore the submission of the assesee that the no T.D.S. return can be revised claiming refund and changing the section or the source of Income.
7. That the first appellant authority further erred in ignoring the main issue involved in this case and giving his opinion regarding the T.D.S because asseseee has deposited all the due tax entitled for refund even if ignore the T.D.S deducted from the Commission.
8. That the assesee craves to add/amend any grounds of appeal on/before or at the time of hearing.”
3. Brief facts of the case are that, the Assessee filed return of income declaring total income of Rs. 80,59,150/-. During the course of assessment proceedings, the A.O. observed on perusal of the AIR Information that, as per Form No. 26AS the Assessee received total commission of Rs. 97,12,121/- from M/s Laxmi Remote (India) Pvt. Ltd. and TDS on 9,71,212/- was deducted thereon by the deductor M/s Laxmi Remote (India) Pvt. Ltd., however, in the Return of income, the Assessee had declared total commission amounting to Rs. 21,15,420/- only resulting suppression of commission receipt of Rs. 75,96,701/-. Accordingly, the Ld. A.O. added the said amount of Rs. 75,96,701/- to the returned income of the Assessee. Aggrieved by the assessment order, the Assessee preferred an appeal before the Ld. CIT(A). The Ld. Ld. CIT(A) vide order dated 28/02/2017, dismissed the Appeal filed by the Assessee. As against the order of the Ld. CIT(A) dated 28/02/2017, the Assessee preferred the present Appeal on the Grounds mentioned above.
The Ld. Counsel for the Assessee submitted that though the M/s Laxmi Remote (India) Pvt. Ltd. had deposited the TDS and filed TDS return as well. However, the said company has not paid the commission amount to the Assessee and also not revised the Return as the same was barred by limitation. The Ld. Counsel has also drawn our attention to the copy of the commission account of M/s Laxmi Remote (India) Pvt. Ltd. wherein no name of the Assessee has been mentioned. Thus, submitted that the Authorities below have made addition based on the Form No. 26AS by completely ignoring the fact that payer company never paid the commission, but wrongly filed the TDS Return. The Ld. Counsel has also relied on the identical (Smt. Anju Sachdeva Vs. ACIT) and vide order dated 29/08/2022, the Co-ordinate Bench of the Tribunal has remanded the matter to the file of the A.O. Thus sought for allowing the Appeal of the Assessee.
Per contra, the Ld. Departmental Representative submitted that the huge commission amount have been paid by the very same entity even earlier Assessment Years and the Assessee has also taken full credit of the TDS amount. The person responsible for deducting and depositing the TDS has rightly deducted the TDS and deposited the amount inthe Government account, thus, sought for dismissal of the Appeal.
We have heard both the parties and perused the material available on record. It is not in dispute that as per 26AS, the Assessee has been shown as recipient of commission amount of Rs. 97,12,121/-. Further the Assessee has shown total commission of Rs. 21,15,420/- only. Apart from the same, the Assessee has also taken full credit of TDS deducted by the payer on commission shown in the Form No. 26AS. It is the case of the Assessee that the Assessee has not received any of the commission amounts from the payee i.e. M/s Laxmi Remote (India) Pvt. Ltd., therefore, the said Company should not have debited TDS amount and should not have made payment to the Government. In an identical situation, in the case of Anju Sachdeva (supra) the Co-ordinate Bench of the Tribunal has remanded the matter to the file of the A.O. in following manners:-
“13. We have given thoughtful consideration to the orders of the authorities below. The undisputed fact is that as per Form 26AS, the assessee has been shown as recipient of commission amounting to Rs. 48,56,061=00. It is also an undisputed fact that the assessee has shown only Rs. 20,12,260/-. It is also true that the assessee has taken full credit of TDS deducted by the payer on the commission shown in Form 26AS.
Though the financial statement of the payer company shows that the company has paid total commission of Rs. 11 lakhs, then the statement of the counsel is that the payer company could not have debited Rs. 48.56 lakhs commission in the name of the assessee.
If that being so, then how come the assessee has accounted for commission of Rs. 20.12 lakhs when the payer company has shown commission of Rs. 11.08 lakhs in his financial statement. These contradictory facts are emanating from the records. Therefore, it 6 becomes necessary to ascertain true facts and, therefore, we deem it fit to restore the entire issue to the file of the Assessing Officer.
The assessee is directed to demonstrate that the payer company never paid commission of Rs. 48,56,061=00 by bringing cogent material evidence on record.
The Assessing Officer is directed to examine the same and if satisfied with the claim of the assessee, then the Assessing Officer is directed to make addition of Rs. 4,85,606/- being TDS amount on which credit has been taken by the assessee in her return of income.
With these directions, we restore the matter to the file of the Assessing Officer to be decided after affording reasonable and adequate opportunity of being heard to the assessee.”
By respectfully following the order of the Co-ordinate Bench of the Tribunal, we remand the matter to the file of the A.O. with a direction to examine the issue afresh by providing opportunity of being heard to the Assessee and pass an order afresh as observed by the Tribunal in the case of Anju Sachdeva (supra).
In the result, the Appeal of the Assessee is partly allowed for statistical purpose.
Order pronounced in the open court on 09th May , 2025