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2017 (9) TMI 371 - ITAT MUMBAIDiscrepancy in receipt as per TDS certificates and receipts booked by the assessee - Revision u/s 263 - CIT(A) granted relief to the assessee on the ground that the A.O. has not pointed out any discrepancy in the audited accounts which were audited u/s 44AB as well as the A.O. failed to make any enquiry with Provogue India Limited as no notice/summons u/s 133(6)/131 respectively were issued by the AO - Held that:- As observed that the power of ld. CIT(A) is co-terminus with the power of A.O. and the ld. CIT(A) under these circumstances should have directed the A.O. to issue summons/notices u/s 131/133(6) of the Act to the M/s Provogue (I) Ltd. to verify this discrepancy in income or could have himself issued such notices/summons to Provogue India Limited for necessary verifications, the objective being to compute correct income chargeable to tax which is mandate of the 1961 Act. The primary onus is on the assessee to reconcile the income as is reflected in TDS certificates with books of accounts, as the said income stood credited in assessee’s books of accounts which onus was not discharged by the assessee in the instant case. Hence, keeping in view the factual matrix of the case, we are inclined to set aside and restore this matter to the file of the A.O. for de novo determination of the issue on merit in accordance with law. The assessee is directed to file necessary evidences/explanations before the A.O. in the de novo proceeding to reconcile the difference between the income as is reflected in the books of accounts and TDS certificates w.r.t. Provogue India Limited. Infringement of Section 194C - payments being made without deduction of tax at source from labour payments - Held that:- The assessee had made payments to the tune of ₹ 1,01,04,662/- and Rs. ₹ 7,64,497/- to various persons which was claimed by the AO to have exceeded threshold limits as stipulated u/s 194C of the 1961 Act and the assessee had made payments without deducting tax at source as stipulated u/s 194C which as per AO infringed provisions of Section 40(a)(ia). We find that the assessee had claimed that these payments were made to supervisors who distributed payment to labourers without retaining any income for themselves and hence no violation of Section 194C r.w.s. 40(a)(ia). The assessee set up this plea of making payment to supervisors who in turn made payments to labourers without retaining any profit for themselves, for the first time before ld. CIT(A) and learned CIT(A) did not called for any remand report from A.O. but accepted the plea of the assessee while granting relief to the assessee without any verification/ examination of the claim of the assessee. This new plea of the assessee that payments were made to supervisors who in turn distributed payments to labourers without keeping any income for themselves and hence no infringement of Section 194C r.w.s. 40(a)(ia) need verification by the AO. Thus, this matter needs to be set aside and restored to the file of the A.O. for denovo determination of this issue on merits, who will evaluate the contention of the assessee on merits in accordance with law.
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