S M AKER MANAGEMENT SERVICES PRIVATE LIMITED,MUMBAI vs. INCOME TAX OFFICER 15(3)(4), MUMBAI

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ITA 790/MUM/2018Status: DisposedITAT Mumbai28 July 2021AY 2014-154 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal held that the Assessing Officer did not provide valid reasons for rejecting the assessee's explanation regarding the difference in sales figures. The addition was therefore restricted to the amount accepted by the assessee.

What were the facts?

The assessee's income as per the Profit and Loss account differed from the income reflected in Form 26AS. The Assessing Officer made an addition of Rs. 12,50,251/- on this discrepancy, which was confirmed by the CIT(A).

What were the issues?

Whether the addition made by the AO on account of difference in 26AS and P&L is sustainable without proper justification. Whether the CIT(A) erred in confirming the addition without providing an opportunity of being heard.

Which sections of the Income-tax Act were involved?

Section 40(a)(ia)

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Income Tax Appellate Tribunal, ‘G‘ BENCH

For Respondent: Shri. T.S. Khalsa
Hearing: 28/07/2021Pronounced: 28/07/2021

आदेश / O R D E R PER SHRI SHAMIM YAHYA AM

1.

This appeal by the assessee is directed against order of Ld. CIT(A) dated 12/09/2017 and pertains to Assessment Year 2014-15. 2. The assessee has filed the following grounds of appeal:- “Under the facts and circumstances of the case, The Learned Commissioner of Income-tax (Appeals) erred in passing the appellate order without giving a opportunity of being heard to the appellant.

M/s. S.M.Aker Management Services Pvt. Ltd.

The Learned Commissioner of Income-tax (Appeals) erred in confirming the addition made by AO of Rs. 12,50,251/- solely on the grounds that the appellant has claimed the full credit of TDS on these excess amount reflected in 26AS and without appreciating the fact that the appellant has neither raised any invoice / received these excess amounts. 3. The Appellant craves leave to add, amend, alter or delete any of the above grounds of appeal.”

3. The brief facts on this issue are that impugned addition was made by the ld.Assessing Officer on the ground that there was difference between income shown as per Form 26AS and income shown as per profit and loss account. The assessee gave the explanation thereof. This was duly noted by the ld.Assessing Officer in his assessment order as under:- Sr. Name of the Party Amount as per Amount as Diff Reasons for difference if any No. Form 26AS per P&LA/c 1. Indian Oil Corporation 41,51,991 29,34,470 12,17,521 1] Rs. 4,56,733 amount of Ltd. (SHD-Baroda) Service Tax consider as income in 26AS (2) Rs. 143035 sales amount not consider in 26AS but we consider in P&L (Total diff is Rs. 456733 - 143035 - 313698) 2. UEM India Pvt. Ltd. 17,48,846 11,20,846 6,28,000 1) Rs. 138537 amount of service tax consider as income in 26AS 2) 489463 sales amount not consider in but not in P&L A/c. (total diff is Rs. 489463- -138537 = 628000] Total 18,45,521 3.1. However, the ld. AO held as under:- “On perusal of the above chart it can be seen that at Sr. 1 of the above table the difference of income as per P&L and 26AS is Rs. 12,17,521/-. As per the above statement Rs. 4,56,733/- being service tax has been included in 26AS. Hence, the difference of Rs. 7,60,788/- (12,17,521- 4,56,733). Further, at Sr.2 of the above table the difference of income as per P&L and 26AS is Rs. 6,28,000/-. As per the above statement Rs. 1,38,537/- being service tax has been included in 26AS. Hence, the difference of Rs. 4,89,463/- (628000 - 138537). As per the accounting method followed by the assessee company i.e. mercantile system, this income ought to have M/s. S.M.Aker Management Services Pvt. Ltd.

been shown as income for the year under consideration. Therefore, an amount of Rs. 12,50,251/- (760788 + 489463) is considered as income for the year under consideration and added to the total income of the assessee.

3.2. On appeal, the ld. CIT(A) has confirmed the ld. AO’s order by observing as under:-

Ground No.2 & 3 raised in respect of the addition of Rs. 12,50,251/- made on account of difference in 26AS. The Ld AO has during the course of scrutiny assessment proceedings called for the reconciliation of the difference in receipts as per the 26AS with that of the Profit & Loss account. The appellant could not properly reconcile and justified the action. The submissions as per the statement of facts have been considered in the light of the facts of the case on record. It is factually true that the appellant has less admitted its receipts. However it has claimed and availed full credit of TDS as per 26AS. The Id AO has rightly brought to tax the total receipts. The action of the Id AO is therefore said to have been made on sound footing and after due verification and application of mind. Hence I do not find any inconsistency and the findings of the Id AO are therefore confirmed. This ground is dismissed. 3.3. Against the said order, assessee is in appeal before us.

4.

We have heard the ld. DR and perused the record. None appeared on behalf of assessee despite notice. We note that assessee has duly explained to the ld. Assessing Officer that the reason of impugned difference was partly relating to service tax which has been accepted by the ld. Assessing Officer. However, the explanation of sales which has been considered differently in 26AS and profit and loss account has not been accepted by the ld. Assessing Officer. We note that no reason has been given by the ld. Assessing Officer as to why he is not accepting them. No case is made out that from the examination of records, the explanation has been found to be incorrect. Without giving any reason, the rejection of the explanation thereof is not sustainable. Hence, we direct that addition should be restricted to the difference as accepted by M/s. S.M.Aker Management Services Pvt. Ltd.

the assessee in its explanation that Rs.3,13,698 + 6,28,000/-. We direct accordingly.

5.

In the result, appeal of the assessee stands partly allowed.

Order pronounced on 28/07/2021 by way of proper mentioning in the notice board.

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