TMI Blog2017 (8) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment proceedings on this aspect. Therefore, it was held by the Hon’ble Supreme Court in the case of Malabar Industrial Co. Ltd., Vs. CIT [2000 (2) TMI 10 - SUPREME Court] that non examination of an issue by the AO renders the assessment erroneous and prejudicial to the interests of the revenue and even in the decision of the jurisdictional High Court in the case of CIT Vs. Infosys Technologies Ltd. [2012 (1) TMI 76 - KARNATAKA HIGH COURT ] is squarely applicable to the fact of the case. We may add here that the learned CIT had only set aside the issue for denovo examination by the AO, which is permissible as per the decision of the jurisdictional High Court in the case of Infosys Technologies Ltd. - Decided against assessee. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celled. 4. Without prejudice, the appellant denies himself liable to be assessed at an additional receipt of ₹ 74,19,860/- as the same does not form part of income of the appellant under the facts and circumstances of the case. 5. The ld. Commissioner of Income Tax - III, Bangalore has grossly erred in not appreciating the Certificate issued by the Bruhat Bangalore Mahanagara Palike (BBMP) duly certified by the Executive Engineer of Karnataka Government stating that the said sum forms part of repayment of Earnest Money Deposit and Further Security Deposits under the facts and circumstances of the case. 6. The ld. Commissioner of Income Tax - III, Bangalore has grossly erred in purely depending upon the Form 26AS without appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96,57,660/-. 3. Subsequently, the CIT(A)-III, Bangalore had issued a show cause notice under section 263 of the Income Tax Act proposing to revise the assessment, as a sum of ₹ 74,19,860/- on which tax was deducted at source by city municipal corporation was not offered to tax and therefore it was proposed vide show cause notice to bring the same to tax. In response to the show cause notice, the appellant had submitted that the said sum of ₹ 74,19,860/- represents earnest money deposit which was retained by the contractee till the completion of the project on which TDS was made. It was further submitted that the contractee i.e., BBMP has erroneously deducted TDS and it was further submitted that as against the total claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same for a specified period in terms of contract agreement. The assessee in the present case has stated that amount of ₹ 74,19,860 received from BBMP relates to Earnest Money Deposit/ Further Security Deposit made to obtain contract. However, the assessee has not given the details such as quantum of EMD and quantum of FSD involved in the above amount of ₹ 74,19,860/- received. The assessee has also not furnished details of date of deposit of such EMD/FSD, proof in respect of mode of payment and copy of contract agreement entered with BBMP in terms of which such EMD/FSD are made. Since the assessee has not produced evidences in support of his claim, the argument that amount of ₹ 74,19,860/- relates to EMD/ FSD cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this total receipt does not include an amount of ₹ 74,19,860/- received from BBMP reflected in 26AS. Even in the return of income filed, the assessee has not declared this transaction in contract receipts as well as in the TDS schedules. The assessee has made the claim for TDS credit of this transaction only after completion of assessment, that too after appearance of the same on 26AS. Hence, the assessee claim that he has produced all the documents related to EMD/ FSD at the time of assessment is not acceptable. 5. Thus the learned CIT concluded that the assessee had not offered the said amount of ₹ 74,19,860/- as income and AO had failed to cause necessary enquiry on this aspect while passing impugned order and pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the interest of the revenue and it is not the case of the appellant that this issue was examined by the AO during the course of regular assessment proceeding nor the appellant made any effort to demonstrate before us that any enquiry was caused by the AO during the course of assessment proceedings on this aspect. Therefore, it was held by the Hon ble Supreme Court in the case of Malabar Industrial Co. Ltd., Vs. CIT 243 ITR 83 that non examination of an issue by the AO renders the assessment erroneous and prejudicial to the interests of the revenue and even in the decision of the jurisdictional High Court in the case of CIT Vs. Infosys Technologies Ltd. 341 ITR 293 is squarely applicable to the fact of the case. We may add here that the le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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