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2015 (8) TMI 555 - ITAT PUNE

2015 (8) TMI 555 - ITAT PUNE - TMI - Method of accounting - recognition of income - determination of value of WIP - accounting for construction contracts (AS7) of the Institute of Chartered Accountant of India - CIT(A) directing to take WIP for A.Y. 2001-02 at ₹ 3 Crs and not ₹ 4.94 for Ghatprabha Project as adopted by the AO - carrying forward of losses as per the revised return

Held that:- The bill raised by the assessee has been accepted by the department and for whatev .....

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receipt of the above amount.

We do not find merit in the submission of the assessee that since he has offered the income in the A.Y. 2004-05 and since there is no loss to the revenue the order of the CIT(A) should be upheld.

Here, in the instant case the question is not relating to loss to the Revenue. It relates to the taxability of the income in a particular year. In the instant case the assessee follows mercantile system of accounting, has debited all the expenditure t .....

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e Ld. Counsel for the assessee are concerned we find the same are not applicable to the facts of the present case. In the instant case the assessee initially raised the bill on the Government department which has not been disputed by the department. The assessee has categorically submitted before the CIT(A) that the departmental engineer endorsed on the bill that the measurements were checked on 31-03-2001. Even the assessee in the profit and loss account has also accounted for such WIP. Further .....

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he belated original return of income the figure of WIP as per the bills raised by it on the Government department and since the assessee has not incurred any further expenditure on such amount received in subsequent year, therefore, the order of the CIT(A) reducing the WIP from ₹ 4.94 crores to ₹ 3 crores for A.Y. 2001-02 in our opinion cannot be accepted. Merely because assessee has offered the same to tax in A.Y. 2004-05 cannot be a ground to reduce the correct WIP from ₹ 4.9 .....

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ng to the Assessment Years 2001-02 to 2003-04 respectively. The assessee has also filed CO No. 27/PN/2010 against the appeal filed by the Revenue for Assessment Year 2001-02. For the sake of convenience all the 3 appeals filed by the Revenue and the CO filed by the Assessee were heard together and are being disposed of by this common order. 2. First we take up ITA No.169/PN/2006 for A.Y. 2001-02. Facts of the case in brief are that the assessee is a partnership firm engaged in the business of Ci .....

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the Act was issued on the basis of the first return filed on 20-02-2002. However, on the basis of the revised return filed on 20-01-2003 a notice u/s.143(2)(ii) of the Act was issued on 27-05-2003 which was served on the assessee on 28-05-2003. The Assessing Officer later moved a petition u/s.263 of the Act to the CIT who vide order passed u/s.263 of the Act dated 26-08-2003 held that the second return furnished on 20-01-2003 was not a valid return and cancelled the second intimation dated 20-0 .....

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the same is measured and accounted for after reducing the gross profit as per the books on the work done. In the month of March 2001, the assessee had raised a running account bill for a sum of ₹ 5,88,69,955/-. As per the practice followed in the past, the assessee reduced certain amount as percentage from this amount on account of gross profit and value of work-in-progress as on 31-03-2001 was arrived at by it at ₹ 4.94 crores in respect of the Ghatprabha site. It was claimed that t .....

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, therefore, the value of the work-in-progress at ₹ 4,94,00,000/- was required to be revised. Accordingly, the assessee filed a revised return. 4. It was submitted that the assessee also furnished return of income on 31-10-2002 for A.Y. 2002-03 declaring loss of ₹ 3,75,76,870/-. In the said return the value of opening workin- progress was disclosed at ₹ 4.94 crores. This return was also revised on 20-01-2003 showing a loss of ₹ 1,74,92,950/-. In the said revised return, t .....

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Assessing Officer is hereby directed to make a fresh assessments de novo for the Assessment Years 2001-02 and 2002-03 right from the stage of furnishing of return of income after affording a reasonable opportunity of being heard to the assessee. (ii). As to the assessment year 2003-04, the Assessing Officer may issue a notice u/s. 143(2)(ii) of the Act, and thereafter he may take a regular assessment . 6. Based on the directions of the CIT the Assessing Officer proceeded to make fresh assessmen .....

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ssue was regarding valuation of work in progress as on 31-03-2001. The assessee was awarded the contract work of Ghatprabha Medium Project at Phatlakwad, Tq: Chandgad, Dist. Kolhapur in the year 1997. Since the work is of long term, the same is being carried on continuously. The method of accounting of the assessee is to recognise the revenue only on final passing of running bill by the concerned department. Every running payment is evaluated by the Engineer or Surveyor of the Department and the .....

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stody only and did not show the same to the assess upto 31-05-2002. The assessee closed its accounts on 31-10-2001 and got accounts audited. Since the assessee was not aware that the bill was passed only for ₹ 3 Crores, the firm valued the work in progress at ₹ 4,94,00,000/-. There is a mistake in the profit arrived at on the basis of estimated WIP at ₹ 4.94 Crores instead of ₹ 3 Crores. According to the standards prescribed by the Institute of Chartered Accountants of In .....

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be corrected. The assessee relied on the accounting statement No. 7 dealing with accounting for construction contracts (AS7) of the Institute of Chartered Accountant of India. The Accounting standards are being under Company law and other Laws and are to be uniformly followed. Copy of AS 7 enclosed for my ready reference. 7. However, the Assessing Officer, after considering the various submissions filed by the assessee held that the WIP should be ₹ 5.88 crores as against ₹ 3 crores .....

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re work was certified: In case of the assessee, the R.A. Bill No.15 was duly certified and therefore, question of accounting of ₹ 3,00,00,000/- out of ₹ 5,88,69,955/-, does not arise. ii) The assessee himself has argued that assessee relied on AS- 7 and the work in progress is being valued on the basis of amount of bill payable once the departmental Engineer take measurement and valued the work which has been done in case of R.A. Bill No.15 on 31/03/2001. iii) The claim of the assess .....

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ccounts are being maintained on mercantile basis. v) The return filed belatedly i.e. on 20/02/2002 depicts the correct position of work in progress as per the R.A.Bill No.15 related to Ghatprabha Project is the correct statement of Financial Affairs of the assessee firm." 9. In other words, for the AY 2001-02 the A.O. held that the WIP should be on the basis of Bill No.15 submitted by the assessee to the Government amounting to ₹ 5,88,69,955/- instead of ₹ 3 Crores which was the .....

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he assessee's version the original bill No.15 was kept by the EE and it was handedover to the assessee only on 30-05-2002 whereas the assessee filed its return on 20-01-2003 i.e. approximately after 8 months after the so called reduction in the Bill No.15. iii. The original return for AY 2002-03 was filed on 31-10- 2002 but the pending WIP was shown as per the closing WIP of original return for AY 2001-02 i.e. ₹ 4.94 Crores. iv. The return for AY 2001-02 & 2002-03 were simultaneous .....

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or a continuation of assets. Construction of bridges, dams, ships, building and other complex of equipments are some of the examples which are detailed by AS-7. The subject matter of AS-7 is revenue recognition and it provides time and manner in which revenue i.e. profit and loss in a construction contract is to be reorganized. Due to long time between commencement of work and its completion and determination of revenue, earned, it becomes necessary to deal with the subject in a different manner .....

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tures of revenue recognition under this method are; i) When outcome of a contract can be reliably estimated, contract receipt and contract cost should be estimated proportionately with reference to stage of completion. ii) Cost incurred on contract to the extent they are recoverable should be treated as receipt and total contract cost should be treated as expenses. Accordingly, profit and loss upto the date of stage of contract should be accounted for. iii) If it is expected that the total contr .....

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ms of contract relating to revenue in flow. The stage of completion of contract can be determined in various manners. The most reliable approach is based on the ascertainment of work done with reference to survey of work performed and certification of physical preposition of the contract work. In assessee's case, at every stage, the running bills are raised by the assessee and depending on the various factors of contractual agreement, work completed by the contractor is examined and certifie .....

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e, it is informed that the work of construction of Main Dam, I.C.P.O. of Ghatprabha Medium Project, Tal.Chandgad, Dist.Kolhapur is entrusted to M/s. Ambarwadikar &, Co. Aurangabad vide agreement No.B.I/CE/I for 1997-98, the work was started by the agency in the month of April, 1997 and the following payment has been made against their Running Account bills to date : R.A.bill No. Month of Bill Amount of bill Paid amount CV No. & month IDS amount Remarks 1 5/97 7865467 7865467 46-5/97 1809 .....

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2 7/99 - 401746 62-7/99 8035 -do- 13 5/2000 9820000 9820000 TEBI No.9- 8/2000 225860 - 14 9/2000 23103000 23103000 -do- 11- 11/2000 508270 - 15A 3/2001 58869955 30000000 37-5/2002 630000 - 15B -do- 28800000 TEBI No.11, 12, 13, 18- 7/2003 60480 Withheld amount released 16A -do- 19212825 13700000 -do- 287700 - 16B -do- 337000 120-3/04 7414 Withheld amount released However, as may be seen above, sometimes the R.A.bills were not paid fully, only part payment was made due to shortage of funds, there .....

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n made only due to shortage of funds." 12. It is on the basis of the accounting standard, Executive Engineer's letter that A.O. held that the WIP on the basis of bill amount of ₹ 2.88 Crores should be taken in AY 2001-02 and not in AY 2004-05. 8. Before the CIT(A) the assessee contended that the income accrues to the assessee only at the time of final sanction of the bill which in the instant case was finally paid by the Executive Engineer in the A.Y. 2004-05. It was submitted tha .....

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in assessee s own case at every stage running bills are raised by the assessee depending on the various factors of contractual agreement, work completed by the contractor which is examined by and certified by the Department and so on. 9. It was argued that although Bill No.15 was submitted but no sanction was made upto 31-05-2002 and that the WIP was valued on the basis of the bill. It was submitted that the contractor is not aware at the time of closing of books as to how much amount of bill i .....

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ount was not recognised as income either as contract receipt or WIP. 11. So far as the observation of the AO regarding the letter dated 24-03-2005 of the Executive Engineer on the basis of which the AO has based his decision it was submitted that the Executive Engineer has stated in general terms that sometimes part payments are made for shortage of funds. He never pinpointed that Bill No.15 was short paid for shortage of funds. 12. As regards the observation of the Executive Engineer that there .....

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the arguments advanced by the assessee the Ld.CIT(A) held that the belated return filed by the assessee cannot be revised and the return filed originally is the valid return. However, at the same time, the correct value of WIP for Ghatprabha project for A.Y. 2001-02 is ₹ 3 crores and not ₹ 4.94 crores. Therefore, even if the original return is not a valid return the assessee is liable for tax in A.Y. 2001-02 on the WIP of ₹ 3 crores and not ₹ 4.94 crores for the Ghatprabh .....

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o consider the entire WIP of ₹ 4.28 crores to be taken for A.Y. 2004-05 and not in A.Yrs. 2001-02 to 2003-04. While doing so, she further noted that the letter received from the Executive Engineer, Medium Project No.2, Kolhapur reveals that whenever the payments have been made due to shortage of funds it has been mentioned in the letter itself. However, as far as the Bill No.15A is concerned, i.e. which was submitted by the assessee for claim of ₹ 5,88,68,955/- but was sanctioned onl .....

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nts are withheld due to shortage of funds. Therefore, it does not mean that the part payment in respect of Bill No.15 has been made due to shortage of funds. She accordingly held that the amount of ₹ 2.88 crores was withheld not because shortage of funds but because of the fact that either the work was not done completely or the work was not done satisfactorily as per the directions of the Irrigation department. 15. Under these circumstances, according to her, it has to be decided as to wh .....

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assessee when the assessee gets the right to receive that income whether it is paid later or during the same year. Relying on various decisions she noted that in the A.Y. 2001-02 the assessee has right to receive an amount of ₹ 3 crores only and in respect of the balance amount of ₹ 2.8 crores the claim had not become bills receivable and therefore this amount cannot be treated as WIP unless the work done in respect of this amount has been accepted by the appropriate authority. 16. S .....

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ore, she held that same cannot be taxed in the year A.Y. 2002-03 and 2003-04. Even otherwise also, she noted that it is the settled principle of law that closing stock has to be valued either at cost or market price whichever is less. In the instant case the assessee was following this method of accounting regularly. Initially, when assessee submitted the bill he followed the WIP at estimated net realisation value. Afterwards, i.e. when the bill was sanctioned at ₹ 3 crores the assessee co .....

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s and not ₹ 4.94 for Ghatprabha Project as adopted by the AO. ii. On the facts and in the circumstances of the case, the CIT(A) has further erred in arriving at the decision that for A.Y. 2001-02 correct value of WIP is ₹ 3 Crs and not ₹ 4.94 Crs for Ghatprabha Project. iii. On the facts and in the circumstances of the case, the CIT(A) has further erred in holding that entire WIP of ₹ 4.28 Crs has to be taken for A.Y. 2004-05 and not in 2001-02, 2002-03 and 2003-04. iv. O .....

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as filed revised return of income on 20-01-2003 declaring a loss of ₹ 1,74,92,950/-. v. On the facts and in the circumstances of the case that the assessee was consistently following the method of accounting, i.e., work done as work in progress and the same is accounted for after reducing the gross profit as per the book on the work done. However, before the CIT(A)-II, A bad, the assessee in respect of accounting policy, has stated that only bills which are not withheld are taken as work i .....

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The assessee has filed the Cross Objections by taking the following grounds ; 1. On the facts and circumstances of the case and in law assessment dated 31-03-2005 is bad in law, illegal land without jurisdiction as the same was so completed without issue and service of notice under S.143(2) of the Act which is an undisputed fact since the AO himself has accepted this in his assessment order (ParaA). 2. On the facts and circumstances of the case and in law the fall out of the order of Ld. CIT Aur .....

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not empowered to cancel the statutory notice issued and served under section 143(2) as the provisions of section 263 only mandate him to set-aside any assessment which is erroneous and prejudicial to the interests of revenue. The setting aside of the notice served under section 143(2) is beyond the purview of section 263 of the Act. 4. On the facts and circumstances of the case and in law the assessment is also barred by limitation in view of the provisions of section 153(1)(a) since the assessm .....

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tion 263/264 setting aside the same the provisions of S.153 (2A) also become inapplicable. The only legal alternative would be the illegal assessment will have to be quashed and it be quashed accordingly. 6. On the facts and circumstances of the case and in law the Cross objections raised are delayed in view of sub-section (4) of Section 253 of the Act. The Hon ble Supreme Court held in Shreemant Shamrao Suryawanshi & Another Vs. Pralhad Bhairoba Suryawanshi (dead) 2002 AIR SCW 659 held the .....

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belated one, he cannot file a revised return. He submitted that the assessee in the original return of income has declared the WIP in respect of Ghatprabha Project at ₹ 4,94,00,000/-. Further, the assessee follows mercantile system of accounting, therefore, the value of WIP shown originally at ₹ 4.94 crores for the Ghatprabha Project has to be treated as correct. Referring to the certificate issued by the Executive Engineer he submitted that there is no such dispute as such and once .....

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, he submitted that those are not applicable to the facts of the present case and are distinguishable. He accordingly submitted that the order of the CIT(A) be reversed and that of the AO be restored. 19. The Ld. Counsel for the assessee on the other hand strongly relied on the order of the CIT(A). He submitted that he was following a particular method of accounting consistently. He submitted that the assessee in the A.Y. 2004-05 has offered the contract receipts which have been accepted by the .....

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ecision the Hon ble High Court referred to the decision of the Hon ble Bombay High Court in the case of Vishnu Agencies Pvt. Ltd. Vs. CIT reported in 48 ITR 444 (Bom.). He submitted that in the said decision the Hon ble High Court has held that the income accrued at the time when the bills were accepted and its accrual had no reference to the time when it would be actually received. The mere assertion of a claim on the part of the Government for damages for breach of contract was not sufficient .....

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itted that since the bill raised by the assessee has finally been accepted by the Government department in the A.Y. 2004-05 and the assessee has already offered the same to tax in the A.Y. 2004-05, therefore, there is no loss to the Revenue. According to him since the order of the CIT(A) is in consonance with law, therefore, the same has to be upheld and the grounds raised by the Revenue should be dismissed. 20. So far as the CO of the assessee is concerned no argument was made by either side. 2 .....

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me of ₹ 94,56,820/-. However, the audit report u/s.44AB dated 31- 10-2001 was furnished on 31-10-2001. The return filed on 20- 02-2002 was processed u/s.143(1) on 15-06-2002 determining the tax payable at ₹ 22,28,630/-. Subsequently, on 20-01-2003 the assessee filed a revised return declaring a loss of ₹ 2,63,95,650/- which was processed u/s.143(1) on the same day determining the refund to the assessee at ₹ 21,77,332/-. The Assessing Officer issued a notice u/s.143(2)(ii) .....

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required to be made should be made by the Assessing Officer immediately. The assessee filed a petition u/s.264 on 03-09-2003 seeking revision of the intimation dated 15-06-2002 before CIT. It was submitted during the 264 proceedings that the WIP of Ghatprabha Medium Project, Kolhapur be reduced from ₹ 4.94 crores to ₹ 3 crores. The CIT in the order passed u/s.264 set aside the intimations issued u/s.143(1)(a) on 15-06-2002 and 20-01-2003 and directed the Assessing Officer to make fr .....

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e rejected the claim of the assessee that the WIP of the Ghatprabha project be ₹ 3 crores as per the revised return as against ₹ 4.94 crores in the original return of income. We find the Ld.CIT(A) allowed the claim of the assessee holding that the correct value of WIP is ₹ 3 crores and not ₹ 4.94 crores for the Ghatprabha Project. According to her the amount of ₹ 1.94 crores has to be considered in the A.Y. 2004- 05 in which the assessee was vested with the right to .....

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the difference amount of ₹ 2.88 crores in subsequent year without incurring any further expenditure to the socalled disputed work, therefore, it is not known as to under what circumstances the dispute arose and without any additional work how remaining amount was released especially when the assessee is following mercantile system of accounting. 24. We find merit in the above argument of the Ld. Departmental Representative. From the copy of the letter addressed by the Executive Engineer, M .....

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. Commissioner of Income Tax, Range-2, Aurangabad s letter No.ABD/ADDL..CIT/R- /131/(1)(d)/2004-05, dt.23-03-2005. Dear Sir, With respect to the above, it is informed that the work of construction of Main Dam, I.C.P.O. of Ghatprabha Medium Project, Tal. Chandgad, Dist. Kolhapur is entrusted to M/s. Amberwadikar & Co., Aurangabad vide agreement No.B.1/CE/1 for 1997-98, the work was started by the agency in the month of April 1997 and the following payment has been made against their Running A .....

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leased 9 10/98 - 17995968 50-10/98 359920 -do- 10 5/99 34259443 20000000 79-5/99 400000 11 6/99 - 13857697 43-6/99 277160 Withheld amount released 12 7/99 - 401746 62-7/99 8035 -do- 13 5/2000 9820000 9820000 TEBI No.9- 8/2000 225860 - 14 9/2000 23103000 23103000 -do- 11- 11/2000 508270 - 15A 3/2001 58869955 30000000 37-5/2002 630000 - 15B -do- 28800000 TEBI No.11, 12, 13, 18- 7/2003 60480 Withheld amount released 16A -do- 19212825 13700000 -do- 287700 - 16B -do- 337000 120-3/04 7414 Withheld amo .....

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ceived. However there is no question of any sort of dispute as far as the amount of passed bill is concerned, as mentioned in your letter. Sometimes the part payment of R.A. bills has been made only due to shortage of funds. Thanking you. Yours faithfully, Sd/- (G.K. Shinde) Executive Engineer, Medium Project Dn.No.2, Kolhapur 25. From the above, it is clear that the bill raised by the assessee has been accepted by the department and for whatever reason an amount of ₹ 2.88 crores was not p .....

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the submission of the Ld. Counsel for the assessee that since the assessee has offered the income in the A.Y. 2004-05 and since there is no loss to the revenue the order of the CIT(A) should be upheld. Here, in the instant case the question is not relating to loss to the Revenue. It relates to the taxability of the income in a particular year. In the instant case the assessee follows mercantile system of accounting, has debited all the expenditure to the profit and loss account during the impug .....

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the same are not applicable to the facts of the present case. So far as the decision of Hon ble Patna High Court is concerned we find the same is distinguishable and not applicable to the facts of the present case. In that case the assessee was engaged as contractor deriving income from construction of earthen dam, spillway etc. for irrigation department. The assessee has raised certain bills which were not admitted by the department pending verification of satisfactory conclusion of the work wa .....

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ere the claim is not admitted and accepted by the Government it cannot be said that the income accrues to contractor by mere presentation of the bill. It was held that since the claim has not become a debt the income cannot accrue. 27. However, in the instant case the assessee initially raised the bill on the Government department which has not been disputed by the department. The assessee has categorically submitted before the CIT(A) that the departmental engineer endorsed on the bill that the .....

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