TMI Blog2016 (11) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved by ld. CIT(A). Certainly there is no element of unexplained cash credit so as to invoke provisions of section 68 of the Act as the impugned amount of ₹ 39,21,381/- is duly explained either as business receipt or out of regular cash withdrawal. We therefore, find no reason to interfere with the order of ld. CIT(A) and uphold the same. - Decided against revenue - ITA No. 1068/Ahd/2013 - - - Dated:- 30-9-2016 - Shri Rajpal Yadav, JM, and Shri Manish Borad, AM. For The Appellant : Shri James Kurien, Sr.DR Respondent by None For The Respondent : None ORDER PER Manish Borad, Accountant Member . This is an appeal by the Revenue for Asst. Year 2009-10 against the order of ld. CIT(A) XV, Ahmedabad dated 23rd January, 2013 vide appeal no.CIT(A)XV/ITO/9(4)/324/11-12 passed against order u/s 143(3) of the IT Act, 1961 (in short the Act) framed on 17/10/2011 by ITO Wd-9(4), Ahmedabad. 2. Briefly stated facts of the case are that the assessee is an individual engaged in the business of Transport contractor. Return of income for Asst. Year 2009-10 was filed on 24.9.2009 declaring total income at ₹ 2,03,290/-. The case was selected for scrutiny as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act by payer companies/parties and deposited in to govt. account. As against this total receipt, the appellant's audited books of account shows only ₹ 44,95,417/-as total receipt. It is therefore, the difference of ₹ 16,02,907/- (60,98,324 -44,95,417) was the contractual receipt which was not reflected by appellant. The appellant has not submitted any explanation before the A.O. and therefore he made addition of this entire amount. During appeal proceeding, appellant contended that his books of account are audited duly supported by bills vouchers for which A.O. has not given any adverse findings. It was contended that, one of the payer party has paid the freight for transportation directly to the truck owner, who transported the goods of that company and the appellant was to receive his commission part in the form of TDS but no such intimation or certificate was received by appellant hence this receipt or such commission was not shown. The appellant further relied on Hon'ble Gujarat high court decision in the case of Mitesh Rolling Mills P. Ltd. to emphasize the fact that it is only the real income or net of receipt payment which is required to be ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per books of account has following detail Name of party Total amount of transportation charges received/credited. TDS (a) Calchem Industries (I) Ltd. 59935 1198 (b) Maruti Cargo and Chemical Pvt. Ltd. 2382540, 24540 (c) Jai Murthy Minral Chemicals Pvt. Ltd. 2052841, 46519 Total 4495316 72257 It is therefore, such discrepancy can be attributed for non recording of receipt from M/s Calchem Industries (India) Ltd. and Gulshan Sugar Chemicals. It is therefore, I am partly inclined with the contention of the appellant that he was not informed nor given TDS certificate by M/s Calchem Industries (India) Ltd. in respect of freight paid by them directly to truck owner for transportation of Goods but name of appellant was included in the return filed for TDS deducted out of such payment. This position is supported by the fact that appellant is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to enter such direct payments to truck owners in its books of account. Further the impugned gross receipt cannot be treated as income as it is in the nature of freight charges and the profits element in the impugned receipt can only be taxed and not the gross amount. Therefore, ld. CIT(A) has rightly sustained the addition to the extent of 10% of the gross receipt. We find no reason to interfere with the finding of ld. CIT(A). We uphold the same. This ground of Revenue is dismissed. 11. Now we take ground no.2 which reads as under :- 2) The Ld. Commissioner of Income-Tax (Appeals)-XV, Ahmedabad has erred in law and on facts in deleting the addition of ₹ 39,21,281/~ made on account of unexplained cash deposit. 12. This addition made u/s 68 at ₹ 39,21,381/- was towards cash deposit on various dates in the year in the S.B. account in the name of assessee. From going through the submissions made by assessee before the lower authorities it is pertinent to note that the impugned bank account in which cash was deposited stands duly disclosed in the regular books which have been audited and all the transactions shown in this impugned bank account are duly account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70,49,895/- an amount of ₹ 31,28,413/- is deposited through cheque or transfer entry and similarly out of ₹ 70,59,162/- withdrawals an amount of ₹ 9,95,099/- is withdrawn through cheque or transfer entry. Considering the total hire receipt shown by appellant of ₹ 44,95,316/- and deposit of cheque transfer entries of ₹ 31,28,413/-, it can be concluded that the appellant is in receipt of hire charges in cash also. Considering the contra entries out of such deposit and withdrawals, I am inclined with the contention of the appellant that all the entries as appearing in this disclosed bank account is from the business transactions of the appellant. The cash so deposited of ₹ 39,21,482/- (7049895 - 3128413) is either receipt of business or made out of the withdrawals from this account beside the contra entries. It is therefore such deposit is explained and there is no need to make any addition u/s 69 of the Act or of peak credit of this disclosed account. The minor difference if at all there is duly explained by the nature of receipt of appellant i.e. hire receipt for which an addition is already made. The A.O. is therefore directed to delete the add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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