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2011 (12) TMI 408 - AT - Income TaxReal estate agent / booking agent - Difference between commission as per TDS certificate and commission as shown in the profit and loss account. - Production of additional evidence - documents lost in fire - revenue challenges the CIT(A)'s finding that the assessee's books were destroyed in fire and this is an after thought of assessee to avoid scrutiny of books. - held that:- CIT(A) has accepted the additinal evidence concretely - If AO had any issue in this behalf, proper enquires could have been conducted by him. The fire department officer could have been called. AO has not carried out any enquiry from his side. The report of a govt. department which is substantiated by payment of corresponding service charges cannot be brushed aside unless there is material against it. In these circumstances, CIT(A)'s finding being based on the facts is to be upheld. Besides, non-production of books do not stop the process of Income tax Act; in this eventuality best judgment assessment u/s 144 is the alternative. AO in any case relied on the assessee's audit statements and passed the order u/s 143(3). - Decided in favor of assessee. Regarding difference in commission in P and L a/c and TDS certificates - held that:- CIT(A) has considered the explanation, reconciliation and has given adequate factual findings explaining this discrepancy and as a consequence thereof sustained the addition to the tune of Rs. 1926640/-. In the absence of any contrary comments in remand report or the revenue arguments we see no infirmity in the order of CIT(A) in allowing part relief. Assessee is following mercantile system of accounting and thus the sum of Rs. 1926640/- having accrued in the year is to be taxed as the income of the assessee for the year under appeal. Claim of expenditure on account of commission and discount - dis allowance u/s 40(1)(is) - held that:- The material/information and confirmations have not been disputed to be of the business of the assessee i.e. real estate brokerage business. TDS is deducted and paid as per law which is substantiated. Revenue has not raised the ground of section 40(a)(ia) in its ground of appeal. Revenue except raising suspicions could not indicate any valid basis to reject these documentary evidences. - Decided in favor of assessee.
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