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2013 (4) TMI 266 - ITAT DELHIDeemed income - difference between the receipts in the Profit and Loss account and the amount of receipt shown in the TDS certificates furnished by the payer of the income - assessee has pleaded that adequate opportunity was not given to the assessee to substantiate its claim with respect to the notices that were issued to the vendors of the assessee u/s. 133(6) and no confirmation was received from such vendors - penalty proceedings under section 271 (1 )(c) - Held that:- In this case the AO issued notices u/s. 133(6) to all the vendors of the assessee. Vendors numbering 18 were found acceptable. It is seen that indeed, AO collected evidence at the back of the assessee and never confronted the same to the assessee. The assessee was not allowed any opportunity to rebut the evidence. However, AO went on to make the addition on account of the alleged short receipts declared in the profit and loss account.Thus this is entirely in violation of the natural justice principles of audi alterem parterm. As the parties who have paid the said advance has clearly informed that the amount in question has been treated as expenses incurred by them during the year. Hence, the plea of the assessee to treat the amount received as advance is not very cogent. However,as found that there is considerable cogency in the assessee's submissions that proper credit of pass through cost should be taken, if the amount is being treated as revenue receipt. Since first issue in this case is remitted to the file of the AO, this issue is also remitted to the his file to examine the assessee's submission in this regard regarding the pass through cost in this case - in favour of assessee for statistical purposes.
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