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Assessee represented by Shri Kamelsh Bhatt, AR Department represented by Shri Vinod Kumar, Sr. DR Date of Institution of appeal 23/01/2023 Date of hearing 06/03/2023 Date of pronouncement 19/04/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned National Faceless Appeal Centre (NFAC), Delhi/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 12/07/2022 for the Assessment Year (AY) 2016-17. The assessee has raised following grounds of appeal:
1. In view of the facts and circumstances of the case, the ld. CIT(A) erred in law and in facts in confirming the addition to the tune of Rs. 5,00,000/- out of the addition of Rs. 25,17,116/- made by the Income Tax Officer, Ward 3(3)(4), Surat on account of difference between amount reported in profit & loss account and 26AS and hence your Appellant prays that the same be deleted.”
Rasiklal Bavchandbhai Akbari Vs ITO 2. Rival submissions of both the parties have been heard and record perused. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that in this case, there is delay of 14 days in filing appeal before the Tribunal. The assessee has filed his application for condonation of delay alongwith affidavit. In the affidavit, the assessee specifically contended that the assessee was not well when the order of ld. CIT(A) was passed and he was staying at his native place in District Amreli, Surat. The assessee came to know about passing of impugned order by ld. CIT(A) in November, 2022 and immediately filed appeal before the Tribunal, in the meantime, period of limitation has expired. The appeal was filed after 14 days of period of limitation. The ld. AR of the assessee submits that the delay in filing appeal was neither intentional nor deliberate but for the reasons of ill health of assessee. The assessee is not likely to get benefit in filing appeal belatedly. The ld. AR of the assessee prayed for condoning the delay.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue not seriously opposed the plea of condonation of delay. Considering the submission of ld. AR of the assessee that the assessee was not well soon before filing of appeal and the delay is neither intentional nor deliberate. Moreover, there is delay of only 14 days in filing appeal. Considering the facts and Rasiklal Bavchandbhai Akbari Vs ITO circumstances of the case, delay of 14 days in filing the present is hereby condoned and appeal is admitted for hearing.
On merit, the ld. AR of the assessee submits that a very limited issue is raised in the present appeal with regard to confirming the addition of Rs. 5.00 lacs on account of mismatch in statement of Form 26AS. The ld. AR of the assessee submits that the assessee is a labour contractor working in the name and style of Shree Shanidev Construction. The gross receipt of the assesse during the year under consideration was of Rs. 1,60,90,535/-, the assessee collected service tax of Rs. 20,17,107/-, thus the net turnover as per Profit and Loss Account was Rs. 1,40,73,428/-. As per statement in Form No. 26AS, the total turnover is Rs. 1,65,90,544/-. The assessee explained that receipt as per Form 26AS is Rs. 1,65,90,544/- out of which Rs. 5.00 lacs pertain to return on income in HUF, and after reducing Rs. 5.00 lacs gross receipt in individual case of assessee is Rs. 1,60,90,544/-. Such fact is not considered by Assessing Officer as well as by the ld. CIT(A). The assessee filed return of income of HUF alongwith expenditure account and balance sheet of HUF. The receipt of Rs. 5.00 lacs was wrongly shown due to an error in mentioning PAN number by payee.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that no such contention was Rasiklal Bavchandbhai Akbari Vs ITO raised by the assessee before the Assessing Officer. Moreover, the receipt on which TDS was deducted by Radhika Builders. TDS return has not been revised till date so it belongs to assessee.
I have considered the submissions of both the parties and have gone through the orders of the lower authorities carefully. On considering the submissions, I find that the assessee right from the beginning contended that the mismatch in the total turnover as shown by assessee and reflected in Form 26AS for the reasons that on receipt of Rs. 5.00 lacs, Radhika Builders in fact relates to HUF, which is shown in the name of assessee by error of mentioning PAN of assessee. No such confirmation was filed by the assessee from Radhika Builders despite service of notice under section 133(6). On considering such fact, the issue is restored back to the file of Assessing Officer for a limited purpose to verify the fact if the receipt relates to HUF of the assessee and assessee substantiate such stand, no addition may be made. The Assessing Officer shall thoroughly examine the nature and receipt including bank account where the impugned payment was credited whether it was credited in the bank account of HUF or in the account of assessee. The Assessing Officer on verification of such fact shall pass order in accordance with law. With this observation, the grounds of appeal of assessee is allowed for statistical purposes.