SMT. SUJATA SANTOSH GAWADE,,PUNE vs. DEPUTY SSISTANT COMMISSIONER OF INCOME-TAX,,

The assessee has raised the following grounds of appeal:-

The first issue raised in the present appeal is against orders of authorities below in disallowing the claim of TDS, where the income, against which, was offered to tax in financial year 2008-09.

Briefly, in the facts of the case, the assessee for the year under consideration was engaged in the business of providing industrial construction services and was dealing in construction contracts as sole proprietorship of M/s. Mahalaxmi Constructions. The assessee had furnished the return of income declaring total income of ₹ 60,55,943/-. The case of assessee was picked up for scrutiny. During the course of assessment proceedings, the assessee was provided with copy of ITS data and was requested to furnish the reconciliation along with relevant evidences. The assessee furnished reconciliation of ITS data, which reflected difference of ₹ 73,69,030/-. The major difference was in the account of Gabriel India Ltd. of ₹ 62,31,930/-. The assessee was asked to file reconciliation with contra evidences and also why the differential receipts should not be treated as receipts of assessee. The assessee explained that it was not able to coordinate and communicate with

Before the CIT(A), additional evidence was filed, which was forwarded to the Assessing Officer to furnish remand report. The assessee pointed out that she had provided reconciliation of differences in relation to Gabriel India Ltd. vide letter dated 27.10.2015 to the Assessing Officer. The difference of ₹ 20,30,834/- was updated late in Form No.26AS due to system technicalities and late filing of TDS returns by the said concern. It was pointed out that income of ₹ 51,05,628/- pertained to the amounts recorded in books of account by the assessee in assessment year 2009-10 and an amount of ₹ 9,48,779/- represented excess amount recorded by the assessee, on which TDS was not deducted and after reconciliation, there was difference of ₹ 44,221/-.

With regard to Spicer India Ltd., it was pointed out that difference arose as the assessee had recorded the said amount as an advance in the instant assessment year. The Assessing Officer in the remand report commented as under:- “i Gabriel India Ltd. Comments of the AO. The AO, in his report, has stated that after reconciliation, difference of Rs.44,221/- still remains and hence the same should be added to the income of the appellant. The AO has also stated that as the amount of Rs.51,05,628/- was considered by the appellant in the A.Y. 2009-10, whereas TDS on this amount has been claimed in A.Y. 2010-11. The AO is of the view that the TDS claimed may be disallowed as per the provisions of Section 199 of the Income Tax Act, 1961 (the „Act‟). As regards, Rs.9,48,779/-, the AO has accepted the same.”

The assessee in rejoinder has pointed out that since Gabriel India Ltd. had deducted and paid TDS on the income of ₹ 51,05,628/-, offered by the

The assessee is in appeal against both the aforesaid differences. The first issue has been raised vide grounds of appeal No.1 and 2 and the issue of

The learned Authorized Representative for the assessee pointed out that the assessee had offered the receipts of Gabriel India Ltd. in assessment year 2009-10 but had claimed the TDS in assessment year 2010-11. Our attention was drawn to the Ledger Account of Gabriel India Ltd. for financial year 2008- 09 placed at page 1 of Paper Book and it was pointed out that sales have been accounted for in assessment year 2009-10. He further drew our attention to the certificate issued by Gabriel India Ltd., wherein it was pointed out that the TDS deducted on aforesaid amounts was booked in financial year 2009-10 i.e. assessment year 2010-11, copy of which is placed at page 3 of Paper Book. The learned Authorized Representative for the assessee pointed out that the said amount of TDS is to be claimed in assessment year 2010-11. In this regard, he placed reliance on the provisions of section 199 of the Act and also the decision of the Hon’ble High Court of Punjab & Haryana in CIT Vs. Abbott Agency (2014) 41 taxmann.com 404 (P&H).

The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below.

We have heard the rival contentions and perused the record. The first issue which arises in the present appeal is vis-à-vis claim of TDS in respect of receipts which were booked by the assessee in assessment year 2009-10 and the TDS of ₹ 1,15,898/- was claimed in assessment year 2010-11. It is not in dispute that the assessee had offered receipts of Gabriel India Ltd. totaling

The Hon’ble High Court of Punjab & Haryana in CIT Vs. Abbott Agency (supra) while interpreting the above said provisions of the Act held that where the payee had shown the amounts received in its accounts books for the relevant assessment years and where the said payee proves that TDS certificate, issued late, pertained to receipts reflected in the accounts books of

The issue in ground of appeal No.3 raised by the assessee is in respect of addition made of an amount which was received by the assessee as advance and the assessee having booked the receipts in the succeeding years, can the same amount be added in the hands of assessee.

In the facts of present case, the assessee had claimed that it had received sum of ₹ 9,73,000/- as advance from Spicer India Ltd, which was kept as advance and the same was offered to tax in assessment year 2011-12. The TDS was deducted out of such amount but the assessee had not claimed the benefit of TDS either in assessment year 2010-11 or 2011-12. The sale bills have been booked in assessment year 2011-12 and the assessee has also filed on record the copy of account of Spicer India Ltd. for the year under appeal and the same very clearly reflects that the receipts from the said parties. In such circumstances, where the assessee not even has claimed the benefit of TDS for the year under consideration, there is no merit in the orders of authorities below in treating the advance received against the project by the

In the result, the appeal of assessee is allowed.