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2019 (3) TMI 1645 - AT - Income TaxAccrual of income - retention money is not income of the assessee as it has not accrued or arisen during the year - HELD THAT:- The decision of the ITAT Mumbai ‘H’ Bench of the Tribunal in the case of Emerson Network Power India (P.) Ltd. v. Assistant Commissioner of Income-tax [2008 (11) TMI 278 - ITAT BOMBAY-H] relied upon by the ld. D/R is not applicable to the facts of the case, for the reason that, what was considered by the Bench was performance bank guarantee and not retention money as in the case of the assessee company. Even otherwise, we are bound by the judgment of the Hon’ble Jurisdictional High Court in the case of Commissioner of Income-Tax vs Simplex Concrete Piles (India) Pvt. Ltd. [1988 (12) TMI 52 - CALCUTTA HIGH COURT] We also find that the reliance placed by the ld. D/R on the judgement in the case of E.D. Sassoon & Co. Ltd. v. Commissioner of Income-tax [1954 (5) TMI 2 - SUPREME COURT] is also misplaced as the Hon’ble Supreme Court was considering a case where the assessee had acquired the right to receive the income. In the case on hand, the assessee had no right to receive the income. We uphold the contention of the assessee and direct the AO to exclude the retention money included in the sales. This retention money can be brought to tax in the year when the assessee received the same. Accordingly this ground of the assessee is allowed for all the Assessment Years.
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