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2016 (7) TMI 198 - ITAT HYDERABAD

2016 (7) TMI 198 - ITAT HYDERABAD - TMI - Rectification of mistake - difference between the gross receipts as per the TDS certificate and turnover as per the Profit & Loss Account - Held that:- No information could be furnished as to whether the assessee’s application under S.154 was forwarded to the concerned Assessing Officer, and if so, the date of forwarding of the same. Since the application is filed on 26.8.2013, we reasonably presume that it is forwarded within a period of 15 days, and at .....

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on. Assessing Officer could have verified the status of the petition filed under S.154. This is a normal practice that when an appeal is filed before the CIT(A), a copy of the appeal papers is sent to the Assessing Officer and it is the duty of the Assessing Officer to send his note on the appeal filed by the assessee, so as to assist the first appellate authority in coming to appropriate conclusion. - The Assessing Officer has neither acted upon the petition filed under S.154 nor objected .....

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king cognisance of the material and upon verification, he has correctly taken a view that the advances received cannot be taken as part of the current year’s turnover. The details available on record are not doubted even at this stage by the Revenue. Under these circumstances, it is not necessary for the CIT(A) to give detailed reasons, when he, upon verification of the details, notices that the figures are reconcilable. Under these circumstances, we uphold the order of the learned CIT(A) - Deci .....

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77; 1.83 crores. Though the return was processed under S.143(1) of the Act, it was subsequently reopened by issuing notice under Sec.148 of the Act on 10.5.2011. During the course of examination of books of account, the Assessing Officer noticed that the assessee offered an amount of ₹ 36,09,65,844 as sub-contract receipts and an amount of ₹ 21,11,500 towards interest receipts, but as per the TDS certificates, pertaining to the period from 1.4.2007 to 31.5.2008, the subcontract recei .....

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ceived major amount in the form of mobilisation advances on which TDS has been deducted. Thus, there is always difference between the gross receipts as per the TDS certificate and turnover as per the Profit & Loss Account. The company has furnished a chart containing details for the period from 2006-07 to 2008-09, to indicate that there is always difference between gross receipts as per TDS certificates and actual turnover. The Assessing Officer rejected the contentions of the assessee on th .....

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efore the CIT(A) V, Hyderabad by contending that there was sufficient evidence to corroborate the stand in the form of RA bills and hence the Assessing Officer should not have made the addition. When the appeal was posted for hearing, the assessee sought adjournment on the ground that a petition before the Assessing Officer under S.154 is pending. However, the CIT(A) proceeded to dispose of the appeal ex-parte -qua the assessee- whereby he confirmed the action of the Assessing Officer. 4. On fur .....

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with a direction to him to grant reasonable opportunity to the assessee and re-decide the appeal accordingly. 5. It deserves to be noticed that the petition under S.154 of the Act was addressed to the DCIT Circle 16(2), Hyderabad, but as per the standard practice followed in the Office of the Addl. Commissioner of IT, it was acknowledged with the affixture of stamp of O/o. Addl. Commissioner of Income-tax, Range-16 , who should have forwarded the petition to the concerned DCIT. S.154 of the Act .....

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ofit & Loss Account, which include mobilisation advances and secured advances received, which need to be adjusted while working out the gross sales/turnover. Copies of the running bills and copies of guarantees submitted for the advances given were also furnished before the CIT(A), by specifically mentioning that these papers were already filed before the Assessing Officer alongwith the petition for rectification, and thus these papers were already available before the Assessing Officer. Lea .....

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CIT(A) erred in allowing the claim of the assessee of non-taxability of the alleged advance payments without simultaneously rejecting the claim of credit of TDS in contravention of the provisions of Section 199 of the I.T. Act, 1961 as applicable during Financial Year 2007-08 relevant to Assessment Year 2008-09 which mandate that credit of TDS shall be given for the assessment year for which the income is assessable . 7. During the course of hearing, we called upon the Learned Departmental Repre .....

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direction to the CIT(A) to give the assessee fresh opportunity of being heard, and the Tribunal has no where stated that the material furnished by the assessee alongwith the application under S.154 should be taken into consideration and thus, it is the duty of the CIT(A) to give the Assessing Officer an opportunity of being heard, as per Rule 46A of the Income Tax Rules, 1962, if he intends to admit the evidence, whereas the learned CIT(A) has not followed the procedure prescribed therein, in w .....

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, and therefore, cannot be proceeded with, in which event the learned CIT(A) could not have relied upon the documents filed alongwith the petition under S.154, other than by seeking permission to admit the additional evidence, which was not the case here. She thus strongly supported the stand taken by the Revenue. 9. On other hand, the learned counsel appearing on behalf of the assessee submitted that receiving section for receipt of tapals of DCIT/ACIT and Addl. Commissioner of Income-tax is ce .....

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ty of that tapal section, as per the internal norms of the Revenue Department, to forward the same to the concerned officer. In other words, the latches on the part of the Revenue cannot conveniently be taken as the ground to state that there is no application filed before the Assessing Officer. In short, the plea of the assessee company is that all the details are furnished before the Assessing Officer alongwith the petition under S.154 of the Act and in fact, the learned CIT(A) verified all th .....

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ears were also furnished before the Assessing Officer and mentioned in the assessment order itself, which clearly indicate that the gross receipts as per the TDS certificates cannot be taken as final gross turnover, as accepted by the Assessing Officer in the earlier years, there was no need for the learned CIT(A) to give detailed reasons in this regard. He thus strongly supported the order passed by the learned CIT(A). 10. We have carefully considered the rival submissions and perused the recor .....

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pplication is received by it. No information could be furnished as to whether the assessee s application under S.154 was forwarded to the concerned Assessing Officer, and if so, the date of forwarding of the same. Since the application is filed on 26.8.2013, we reasonably presume that it is forwarded within a period of 15 days, and at any rate, before the end of that year. Till date, no action was taken by the Assessing Officer, which implies that the Assessing Officer has not passed any order, .....

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