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This appeal by the Assessee is against order dt: 15-01-2015 passed by the Commissioner of Income Tax-(Appeals), 6, Kolkata for the assessment year 2008-09.
It is noticed that though the assessee has raised as many as five grounds of appeal in this appeal. The ld.AR of the assessee at the time of hearing before us has not pressed ground no.2 i.e an addition of Rs.68,448/- treating the same as undisclosed income being deposit in UCO Bank account. Hence, the same needs no adjudication by us being not pressed. Accordingly, this ground of assessee’s appeal is dismissed.
3. Ground no. 1 is relating to confirmation of addition of Rs.12,75,826/- made by the AO treating the same as undisclosed income being deposit made in Bank of India, which was also confirmed by the CIT-A.
The facts relating to issue in hand that during the scrutiny proceedings the AO found that he assessee received an amount of Rs.33,88,691/- on the basis of bank statement & other material available on record. But, the assessee has shown only Rs.13,26,722/- as professional fees receipts in her P & L account for the A.Y under consideration. The assessee was show caused by the AO being why the difference arisen between above said amounts should not be treated and added as concealed professional income to her total income for the A.Y under consideration. The AO issued notice u/s. 131 of the Act to the assessee to record statement. In such statements, the assessee stated that the said amounts were received from various production houses for making films & serials and due to mistake of the accountant the said amounts were not included in the gross receipts. The assessee stated that some expenses were also omitted to have been incorporated in the P & L account. In support of the contention and claim, the assessee filed the details of expenses and claimed the same as deduction. However, the AO was not satisfied with such submissions of assessee and treated the sum of Rs.13,44,314/- as her concealed income and added the same to the total income of assessee. It is pertinent to note that the AO observed that in respect of allowance of expenditure as claimed and filed by the assessee that unless a revised return is filed by the assessee, the expenditure, if any, as claimed for deduction by the assessee cannot be allowed by following the order of the Hon’ble Supreme Court in the case of Goetze (I) Ltd Vs. CIT reported 229 ITR 383 (SC) and while the assessee did not file any revised return for claim of additional deduction in respect of expenses, the same cannot be considered/entertained. Thus, he added the amount of Rs.13,44,314/- being undisclosed income of assessee to her total income.
The assessee challenged the same before the CIT-A. Before him the assessee reiterated the same submissions as made before the AO and urged to allow such expenditure as deduction, which was not considered by the AO in the assessment proceedings. But, however, the CIT-A found that the assessee did not file anything to show that such expenditure as claimed by her is genuine, except making submissions in general terms regarding the allowance of expenditure as deduction. Before the CIT-A the assessee admitted the suppression of receipts and put the blame on her accountant for such suppression. Hence, he was of the view that since the assessee has not made such expenditure as claim in the return of income, he confirmed the order of the AO in making the said addition on this issue. Relevant findings of the CIT-A are reproduced herein below:-
4.2 Appellants ground of appeal
, statement of facts and material available on record is carefully considered. On perusal of the order, it is seen that A.D. during the course of assessment on analyzing the bank a/e. deposits had noticed that there was evidence of receipts suppression. This fact was confronted to assessee and her statement recorded u/s. 131 of the I. T. Act. During the course of recording of statement, she admitted to suppression of receipts, however putting the blame on her Authorized representative for such suppression. After taking into consideration explanation of assessee, the amount of suppression of receipt was arrived at Rs. 13,44,314/- which has been elaborately discussed in A.O. 's order. The assessee during the course of assessment claimed incurring of certain expenditure for earning such receipt which was not allowed by A.O. by correctly pointing out that no such claim of expenditure was made in the return of income filed. Even during the appellate proceeding other than stating in general terms regarding allowing of expenditure against receipt no evidence of incurring of any expenditure over and above the amount claimed in return has been filed, due to continuous non-compliance. I view of the above A.O’s addition on account of receipt suppression is sustained. The appeal made on these grounds is dismissed. “
6. The ld. AR submits that the assessee filed all the details of expenditure incurred in relation to the professional expenditure. He also submits that the AO having examined and recognized the details of expenditure and claiming the same as deduction did not allow the claim of expenditure. The ld.AR of the assessee referred to para no. 5 of the AO’s order and argued that the AO added the said amount as deposits made in bank a/cs being remained unexplained. The assessee claimed the same as expenditure against said professional receipts. The ld.AR of the assessee further argued that the decision in the case of Goetze (I) Ltd supra as relied on by the AO filing a revised return to claim the same as deduction is not applicable to the present facts of the case. Thus, he submits that there is no necessary to file revised return to claim the expenditure as deduction. The AO is supposed to give any relief in accordance with law even irrespective nature of claim is made by the assessee. He further submits that the CIT-A simply confirmed the order of the AO without considering the detailed submissions of assessee filed before him. In support of the contentions, the ld.AR of the assessee filed before us the details of expenditure together with break up of each expenditure and argued that all the expenditure was incurred through banking channel and as such she claimed the expenditure as deduction. He urged to allow the deduction in respect of expenditure as incurred by the assessee.
The ld.DR submits that it is a fit case for making addition. The AO was justified in making the addition for non disclosure of bank deposits to an extent of Rs.13,26,722/-. Before the AO the assessee did not offer any proper explanation for the same. Therefore, the claim of expenditure as deduction before the AO is an afterthought by the assessee, which cannot be considered in the eye of law. The ld. DR also objected to in filing of details and break up of expenditure before the Tribunal as the same were not filed before the authorities below. The ld.DR relied on the orders of the authorities below.
Heard rival submissions and perused the material available including the details filed before us. We find that the details of expenditure were filed before the AO. The AO having examined the same did not allow the deduction of claim made by the assessee. The only reason is that the assessee did not claim the same in her original return and the assessee did not file any revised return for claiming the same as deduction. Therefore, the only question is before us as to whether the assessee is entitled to claim the same as deduction in absence of any claim in the original return or revised return. We find that the assessee claimed the expenditure against gross receipts. The AO found the same as undisclosed income of assessee. We find that when the AO added the same to the income of assessee, certainly the assessee is entitled to claim the expenditure as deduction. In such circumstances and filing of details and break up of expenditure before us, which were not before the AO, we deem it fit and proper to remand the issue to the file of the AO for his further consideration and to pass an appropriate order in accordance with law. The assessee shall be at liberty to file the relevant details as filed before us to substantiate her claim. This ground of assessee’s appeal is allowed for statistical purpose.
Regarding ground no. 2, the ld.AR of the assessee submits that he is not prosecuting this ground of assessee. Therefore, the same is dismissed as not prosecuted.
Ground no. 3 is relating to claim of additional expenditure of Rs.12 lakhs It is also noticed that the claim of additional expenditure made for the first time before the CIT-A. However, in view of above our discussion and decision rendered in ground no. 1 raised by the assessee, we are of the opinion that this issue is to be remitted back to the file of the AO to decide the same afresh and to pass an appropriate order as per law. Accordingly, this ground of assessee’s appeal is allowed for statistical purpose.
Ground no. 4 is in relation to seeking of credit of Rs.1,83,487/- for TDS. The AO denied the assessee to give credit on TDS, against which the CIT-A held that the AO is required to call for the evidence of TDS, if not available on record and give credit accordingly. Relevant finding of the CIT-A vide para 5.2 is reproduced herein below:-
5.2 Appellant’s appeal is considered. Since the entire receipt, as appearing in TDS Certificate has been taken into consideration, full credit of TDS ought to have been given. A.O is therefore required to call for the evidence of TDS if not available on record and give credit accordingly. “ 12. Heard both the parties and perused the material available on record. We find that the entire receipts of Rs. 1,83, 487/- have been added to the total income of assessee by the AO. Therefore, the assessee is entitled to claim the same for credit of TDS. Therefore, we find no infirmity in the impugned order of the CIT-A requiring the AO to call for the evidence of TDS, if not available on record and given credit accordingly. Accordingly, we direct the AO to give credit on TDS. This ground of assessee’s appeal is allowed.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.