MANISH KUMAR VIJAY,KOTA vs. ITO, KOTA

4. That the appellant craves your indulgence to add, amend or alter all or any grounds of appeal before or at the time of hearing.

3. Succinctly, the fact as culled out from the records is that the Assessee engages in providing Lighting, decoration, pandal and shamiyana and similar type of services. The assessee files his return of income of relevant assessment year under presumptive income with including all receipts relates to the assessee. At the time of filling of ITR some entries shown as receipt were not made part of the turnover therefore, AO CPC made an addition to the income of the assessee for an amount of Rs. 2,88,304/- in the income of the assessee. Assessee preferred an application under section 154 of the Act with AO CPC which was disposed of on 20.10.2020. appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:

6. However, notwithstanding its dismissal for want of prosecution, even on merits of facts as available on record the appellant’s appeal is liable to be dismissed in view of the following reasons:- 6.1 Grounds of appeal

relate to addition of Rs. 2,88,304/- regarding income on receipt of Rs. 5.97,156/-, in the order passed on 20.10.2020. I have carefully considered Form No. 35, statement of facts, the order u/s 154 and the grounds of appeal raised. The appellant has not submitted any documentary evidence in support of his claim that at the time of filling of return of income some entry which was not related to him reflected in his

26. AS due to wrong PAN enter in TDS return filed by UIT Kota, which was rectified by the UIT and also reversed in Form 26AS of the appellant.

6.2. As mentioned above, during the pendency of the appeal, appellant was issued various notices of hearing u/s. 250 of the Act dated 03.05.2024, 27.05.2024, 01.10.2024 and vide said notices from time to time the appellant was requested to file the ground wise submissions in support of the grounds of appeal raised in Form No.

35. However, the appellant did not reply to the aforesaid notices. Therefore, vide hearing notice dated 25.01.2025 the appellant was duly intimated that in case the submissions in respect of claims made in grounds of appeal and statement of facts in Form No. 35 along with supporting documentary evidences are not filed on or before 29.01.2025, then the appeal order will be passed based on material available on the record which may please be noted. However the appellant did not reply to the aforesaid notice dated 25.01.2025.

Thus, during the course of appellate proceedings despite having been granted sufficient time and opportunities of being heard the appellant could not make any submission. From the fact of appellant's non-response to various notices, it is clear that apparently. appellant has no specific submissions and documentary evidences to file in respect of claims made in the grounds of appeal and statement of facts in Form No.

35. Under such circumstances, I uphold the addition of Rs. 2,88,304/- in the order passed on 20.10.2020.

6.3. In view of the detailed reasons given appellant are dismissed. above, the Grounds of appeal taken by the OME TAX DEPART

5. As is evident from the record that the assessee did not response to the notices so issued by the ld. CIT(A) and since the assessee could not brought on record contrary to that effect the appeal filed by the assessee was dismissed. Feeling dissatisfied, the assessee preferred the present appeal before this tribunal on the grounds stated herein above. To support the various grounds raised by the assessee, ld. AR of the assessee, has filed the following written submissions:

Sr. No. Particulars Amount (Rs.) A. Gross Turnover declared u/s 44AD of the Act 9,01,460 B. Presumptive Income u/s 44AD on the declared turnover 4,35,220 of Rs. 9,01,460 [A] C. Income From Other Sources 69,728 D. Loss From House Property -38,129 E. Gross Total Income (B+C-D) 4,66,819 F. Deduction u/s 80C 1,17,392 G. Deduction u/s 80TTA 3,113 H. Total Income [E-F-G] 3,46,314

I. Rounded off Rounded off 346,310

4. Thereafter, the return was processed u/s 143(1) of the Act vide intimation Thereafter, the return was processed u/s 143(1) of the Act vide intimation Thereafter, the return was processed u/s 143(1) of the Act vide intimation dated 15.11.2018, computing dated 15.11.2018, computing the total business turnover at Rs. 14,98,616/ the total business turnover at Rs. 14,98,616/-. The said business turnover is the sum of all the ‘Final’ entries reflecting, under the said business turnover is the sum of all the ‘Final’ entries reflecting, under the said business turnover is the sum of all the ‘Final’ entries reflecting, under the ‘Total Amount Paid/ Credited’ column of FORM 26AS of the appellant. Copy of ‘Total Amount Paid/ Credited’ column of FORM 26AS of the appellant. Copy of ‘Total Amount Paid/ Credited’ column of FORM 26AS of the appellant. Copy of Intimation order dated 15.11.2018 is enclosed Intimation order dated 15.11.2018 is enclosed. [PBP 9 to 18]

5. Accordingly, the return was processed with the addition of Rs. 5,97,156/ Accordingly, the return was processed with the addition of Rs. 5,97,156/ Accordingly, the return was processed with the addition of Rs. 5,97,156/- to the declared business turnover of the appellant. The said addition of Rs. to the declared business turnover of the appellant. The said addition of Rs. to the declared business turnover of the appellant. The said addition of Rs. 5,97,156/- was made on account of alleged difference in turnover declared by the was made on account of alleged difference in turnover declared by the was made on account of alleged difference in turnover declared by the appellant and receipts available in FORM 26AS which resulted into demand of appellant and receipts available in FORM 26AS which resulted into demand of appellant and receipts available in FORM 26AS which resulted into demand of Rs. 62,500/-. Discrepancy, as stated in order u/s 143(1) is re . Discrepancy, as stated in order u/s 143(1) is re . Discrepancy, as stated in order u/s 143(1) is re-produced below for reference:

“There is inconsistency in the amount shown in Sr.no.E1 under 44AD [Profits and gains “There is inconsistency in the amount shown in Sr.no.E1 under 44AD [Profits and gains “There is inconsistency in the amount shown in Sr.no.E1 under 44AD [Profits and gains of business on presumptive basis] of Schedule BP and receipts available in Form 26AS of business on presumptive basis] of Schedule BP and receipts available in Form 26AS of business on presumptive basis] of Schedule BP and receipts available in Form 26AS against section 194C [Payment to contractors]” against section 194C [Payment to contractors]”

7. The above stated mismatch/discrepancy, in Form 26AS and Income tax tated mismatch/discrepancy, in Form 26AS and Income tax tated mismatch/discrepancy, in Form 26AS and Income tax return of appellant, was the result of wrong reporting of PAN by Urban return of appellant, was the result of wrong reporting of PAN by Urban return of appellant, was the result of wrong reporting of PAN by Urban Improvement Trust (UIT), Kota, while filing it’s TDS return. Please note that the Improvement Trust (UIT), Kota, while filing it’s TDS return. Please note that the Improvement Trust (UIT), Kota, while filing it’s TDS return. Please note that the appellant, in his individual capacity, has no relation with UIT, Kota. Copy of Form 26AS is enclosed. [PBP 19 to 22]

Section Transaction Date of Booking Amount (Rs.) TDS deducted Date (Rs.) 194C 17-08-2016 27-10-2016 59,630 1,193 194C 17-08-2016 27-10-2016 3,16,578 6,332 194C 17-08-2016 27-10-2016 2,69,413 5,389 194C 17-08-2016 27-10-2016 1,82,156 3,644 194C 17-08-2016 27-10-2016 1,69,539 3,391

194C 17-08-2016 27-10-2016 -59630 -1,193 194C 17-08-2016 27-10-2016 -3,16,578 -6,332 194C 17-08-2016 27-10-2016 -2,69,413 -5,389 194C 17-08-2016 27-10-2016 -1,82,156 -3,644 194C 17-08-2016 27-10-2016 -1,69,539 -3,391 Net Total 0 0

Manish Kumar Vijay vs. ITO (This space is left blank intentionally) Ground of Appeal No.1 The Ld. CIT(A) has erred in law as well as on the facts of the case in confirming the action of Ld. AO at CPC passed, while disposing rectification application u/s 154 of the Income Tax Act. The very order passed, is bad in law and without jurisdiction. Hence, the same may kindly be quashed.

Ground of Appeal No.2 The Ld. CIT(A) has erred in confirming the action of Ld. AO at CPC by upholding the addition of Rs. 2,88,304/-, due to mismatch in Form 26AS, which was not relating to the assessee and has later been reversed. Hence, the addition so upheld, is unjustified and excessive, and may kindly be deleted.

Ground of Appeal

No.3 The Ld. CIT(A) has erred in law as well as on the facts of the case by dismissing the appeal filed by the assessee without appreciating the facts of the case. The dismissal so made is unjustified and may kindly be reversed. Findings of the Ld. CIT(A): (Para 6.1 at page no. 5 of the Order) “6.1. Grounds of appeal relate to addition of Rs. 2,88,304/- regarding income on receipts of Rs. 5,97,156/-, in the order passed on 20.10.2020. I have carefully considered Form No. 35, statement of facts, the order u/s 154 and the grounds of appeal raised. The appellant has not submitted any documentary evidence in support of his claim that at the time of filling of return of income some entry which was not related to him reflected in his

26. AS due to wrong PAN enter in TDS return filed by UIT Kota, which was rectified by the UIT and also reversed in Form 26AS of the appellant.”

Submission: A. Receipts/ Turnover under consideration is not related to the Appellant: 1. As stated, in the facts, above that the appellant filed his return of income u/s 139(1) declaring business turnover of Rs. 9,01,460/- u/s 44AD of the Act. However, while processing the return of income u/s 143(1), CPC Bangalore erroneously added Rs. 5,97,156/- to the declared turnover.

2. The above addition was made treating the excess amount, appearing in Form 26AS as against the turnover declared in the ITR, as business turnover of the appellant.

Manish Kumar Vijay vs. ITO 3. Accordingly, the income of the appellant was computed by applying presumptive rate, as taken by the appellant, on alleged turnover of Rs. 5,97,156/- and arrived at the additional presumptive income of Rs. 2,88,304/-. The said addition enhanced the income of the appellant from Rs. 3,46,310/- to Rs. 6,34,614/- (3,46,310 + 2,88,304) for the year.

5. Further, since the receipts appearing in FORM 26AS were not related to the appellant, no credit of the corresponding TDS was taken by the appellant during the year.

6. Perusal of the order also shows that the Ld. CIT(A) has not rejected the claim of the appellant on the ground of being in-correct rather the same was rejected for want of documentary evidences.

7. Therefore, the whole basis for upholding the addition, in the case of the appellant, is non-submission of documentary evidence in support of the claim that entries reflecting in FORM 26AS, which was not related to the appellant, are appearing due to wrong PAN entered, by UIT, Kota, in its TDS Return. The relevant para of the appellate order is produced below for reference: “6.1. Grounds of appeal

relate to addition of Rs. 2,88,304/- regarding income on receipts of Rs. 5,97,156/-, in the order passed on 20.10.2020. I have carefully considered Form No. 35, statement of facts, the order u/s 154 and the grounds of appeal raised. The appellant has not submitted any documentary evidence in support of his claim that at the time of filling of return of income some entry which was not related to him reflected in his

26. AS due to wrong PAN enter in TDS return filed by UIT Kota, which was rectified by the UIT and also reversed in Form 26AS of the appellant.”

8. With regard to the documentary evidence, please note that it is clear from FORM 26AS, of the appellant, itself that the relevant entries are not related to the appellant as the same were subsequently rectified by UIT, Kota which is evident from the column remarks ‘B: Rectification of error in statement uploaded by deductor’ appearing in FORM 26AS. The said rectification resulted into making the Amount Paid/ Credited, from UIT, Kota to appellant, zero. The said rectified

9. Accordingly, when the source i.e. FORM 26AS, for making addition, itself establishing that no receipts was credited to the appellant by UIT, Kota, confirming the addition for want of documentary evidence is highly unjustified.

10. Apart from the above documentary evidence, what else was needed in support of the claim of the appellant.

11. Further, as a matter of clarification, it is humbly submitted that, as explained above, the reason for discrepancy was inadvertent reporting of appellant’s PAN, by UIT, Kota, in its TDS Return PAN instead of the PAN of the actual deductee: Manish Vijay (HUF). In support of this claim, the appellant is hereby enclosing FORM 26AS of Manish Vijay (HUF) which is carrying all entries which were wrongly reported under appellant’s PAN. [PBP 34 to 37] This clarification further strengthens the claim of the appellant that the receipts reflecting in FORM 26AS do not relate to him.

12. Even otherwise also, the Ld. CIT(A) could have verified the claim of the appellant, through Ld. AO, from UIT, Kota before confirming the addition. However, the same was not done indicating pre-determined approach of the Ld. CIT(A).

13. Hence, considering the above facts, rectified FORM 26AS of the appellant and FORM 26AS of Manish Vijay (HUF), it is beyond doubt that the addition made do not pertain to the appellant. Accordingly, the addition deserves to be deleted.

B. No addition can be made solely based on FORM 26AS: Submission:

1. 1. It is humbly submitted that it is a settled legal position that no addition can be made solely on the basis of FORM 26AS for the simple reason that income tax is levied/ charged on the income of a person and mere reflection of receipts in FORM 26AS does not prove, beyond doubt, that such receipts is the income of the said person.

2. Accordingly, the entries appearing in FORM 26AS are subject to further verification in case the appellant has not considered the same in his/ her income and the onus is on the AO to bring independent and cogent evidence on record to prove that the income was actually earned by the assessee in case he considers it to be the income of the assessee.

3. In the current case, no documentary evidence has been brought on record by the Ld. AO to prove that the receipts appearing in FORM 26AS is the income of the appellant rather the Ld. CIT(A) presumed that the appellant had actually received amount from UIT, Kota since TDS has been deducted on the same and entries are appearing in FORM 26AS of the appellant.

4. The said presumption of the Ld. CIT(A) eliminated the possibility of any mistake or typographical error while filing TDS return on the part of the deductor. The current case is not new and such inadvertent mistakes are common and happens with majority of the assessee.

6. The Judiciary has consistently held that additions based solely on Form 26AS entries, without verifying the genuineness of the income or the correctness of PAN details, are not sustainable. In this regard, we rely on the following case laws: � Hon’ble ITAT, Surat in the case of Dr Swati Mahesh Vinchurkar Vs DCIT, CPC, Bangalore [I.T.A No. 43/SRT/2021], dated 28.06.2021, held as under:

“While filing her return of income the assessee has shown income from profession and other sources. During the process by CPC, the additions were made in the hand of assessee on the basis of TDS shown in Form-26AS. We find that in response to the notice of CPC, the assessee denied of having such income and that her response was ignored. Before Ld. CIT(A) the assessee again specifically contended that she has not earned such income nor any work was performed by her. We find that despite specific contention of the assessee, the ld CIT(A) instead of verifying the facts confirmed the additions by taking view that it seems that CPC had considered the appellant explanation before making disallowance and that there is prima facie evidence. We find that both the authorities below acted in a mechanical way. There is no consideration of the contentions raised by the assessee that she has not worked or earned any income from such deductor. In our view once the assessee denied that she has not earned such income as reflected in her Form-26 AS, the onus shift on the revenue authorities to prove such income of the assessee. The addition is based solely on the basis of TDS shown in Form-26AS, ignoring the submissions of the assessee. The ld. AR for the assessee vehemently argued before us that the deductor if more than 1000 KM away from the place of practice of assessee. Considering the peculiar facts of the present case, we find merit in the submissions of the ld AR for the assessee that the assessee Manish Kumar Vijay vs. ITO had entered into any such transactions and the lower authorities have not made any verification or effort to verify such transactions and there is certain mistake of entering the wrong PAN, which belongs to the assessee and the addition made in the income is uncalled for. 6.We further find that the coordinate bench of Tribunal in Ravindra Pratap Thareja Vs ITO (supra) held that merely because a payment was reflected in Form-26AS and was shown to have been made to the assessee, it could not be brought to tax as it could not be established that the assessee was actual beneficiary of said payments and the additions was liable to be deleted. Considering the above said factual and legal discussions, and keeping in view of the peculiar facts of the case, no purpose would serve to restore the matter back to the file of assessing officer or to Income–tax Officer (TDS), as prayed by ld Sr.DR for the revenue. In the result, the grounds of appeal raised by the assessee are allowed.

7. In the result, appeal of the assessee is allowed.”

In light of the above, it is humbly prayed that the addition, made solely on the basis of Form 26AS, be deleted.

C. Onus to prove was on the revenue since appellant denied the receipts:

1. In the current case, the Ld. CIT(A) made reference to the Ld. Jurisdictional AO for verification of appeal. However, no response was received from the Ld. AO in this regard and the Ld. CIT(A) proceeded, with the appeal, on merit (kindly refer point no. 2 at page 1 and 2 of the order).

2. The appellant mentioned statement of facts in FORM No. 35 wherein he stated the reason of mismatch and also stated that no mismatch remains since the entries were rectified by the UIT, Kota. Copy of Form 35 is enclosed. [PBP 38 to 39]

3. At this juncture, the Ld. CIT(A) was legally bound to consider such statement of facts as the submission of the appellant since such excess receipts was the core reason of the matter under consideration. Accordingly, when the receipts are nullified by the subsequent revision, the basis of making addition cease to exist. However, the Ld. CIT(A) went ahead and confirmed the addition without any corroborative evidence to support his decision. This principle was also upheld by the Hon’ble ITAT Kolkata in the case of ITO Vs Star Consortium [I.T.A. No. 04/Kol/2020], order dated 07.04.2021, which observed:

Manish Kumar Vijay vs. ITO “So the Ld. CIT(A) notes that it is difficult to conclude the information in respect of TDS amount shown in Form 26AS from the TDS deductor as conclusive against the assessee. Therefore, the Ld. CIT(A) observed as under: “4.16. Since the income has been added, the AO is legally required to prove that the said income accrued to the appellant or was received by it. The burden is on the AO to prove the alleged fact. On the contrary in the assessment proceedings, the AO demanded the appellant to prove that the amount appearing in Form 26AS did not belong to the appellant. In any case, it is difficult to prove the negative for the appellant, who seems to have submitted good amount of papers to the AO to support its case on the issue concerned. For the purposes of the appellate order, I hold that the AO has proceeded without any material to hold that the appellant had earned Rs. 2,14,35,593/-. I further hold that Form 26AS alone cannot lead to addition of income if claims are made of wrong data entry/information and lack of corresponding services by the deductee to the deductor.” …… ….. ….. Therefore, on the facts and circumstances discussed above we find the view of the Ld. CIT(A) to be a plausible view and accordingly his action of deleting Rs. 2,14,35,593/- is confirmed and therefore, the appeal of the revenue stands dismissed.” In view of above, the appellant most humbly prays for justice.

6. To support the contention so raised in the written submission reliance was placed on the following evidence / records / decisions:

Sr. No. Particulars Page No. 1 Copy of Income Tax Return along with 1-8 Acknowledgement 2 Copy of Intimation order, dated 9-18 15.11.2018 3 Copy of Form 26AS 19-22 4 Copy of the order u/s 154, dated 23-33 20.10.2020 5 Copy of Form 26AS of Manish Vijay (HUF) 34-37 6 Copy of Form 35 38-39 submission so filed vehemently argued that the entire dispute relates to the addition based on the Form no. 26As wherein some entries were refelected wrongly under the PAN number of the assessee and now those entries are not filed in the corrected Form no. 26AS placed on record and therefore, the ld. AR of the assessee submitted though the assessee did not appear before the ld. CIT(A) in the interest of the substantial justice the matter be decided based on the evidence placed on record. Since the corrected form was already available on record vide 154 application the same was not additional evidence the relief be granted to the assessee.

8. The ld DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). He vehemently stated that the contention that the assessee is raising were not presented before the ld. CIT(A). But when the facts were confronted to the corrected Form no. 26AS filed by the assessee he sought time for 15 days to submit the facts contrary to what is stated by the ld.AR of the assessee. Since the bench did not received anything contrary material we proceeded to decide the appeal without much waiting on this aspect of the matter. on record. The solitary issue raised by the assessee was the addition made to the income of the assessee based on the entry wrongly reflected in the Form no. 26AS of the assessee while proceeding the ITR as per provision of section 143(1) of the Act. The assessee preferred an application for 154 being the application for rectification of mistake stating that mismatch/discrepancy, in Form 26AS and Income tax return of appellant, was the result of wrong reporting of PAN by Urban Improvement Trust (UIT), Kota, while filing it’s TDS return. The assessee also submitted that he, in his individual capacity, has no relation with UIT, Kota. Copy of Form 26AS placed on record at page 19 to 22. Since those wrong entries do not pertain to the appellant, however, UIT, Kota inadvertently mentioned PAN of the appellant in its TDS return instead of PAN of actual deductee/payee resulting into excess amount in 26AS as against the turnover declared by the appellant. However, the said error was subsequently corrected/ rectified by way of revision of TDS return by UIT, Kota. Thus, when the source i.e. FORM 26AS, for making addition, itself establishing that no receipts were credited to the appellant by UIT, Kota. Thus, based on that set of facts we see no reason to sustain the addition of Rs. 2,88,304/- and thereby we direct to delete the same.

Order pronounced in the open court on 06/08/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 06/08/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Manish Kumar Vijay, Kota izR;FkhZ@ The Respondent- ITO, Ward-2(1), Kota 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 484/JP/2025) 6. vkns'kkuqlkj@ By order,

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