TMI Blog2018 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... oid double taxation. We find force in this argument of AR. Ground no. 3 is dismissed subject to direction to AO that a sum of ₹ 6,09,193/- shall be reduced from the income of assessee in next assessment year i.e. A.Y 2011-12. - I.T.A No. 674/Kol/2015 - - - Dated:- 25-4-2018 - Shri M. Balaganesh, Accountant Member And Shri S.S. Viswanethra Ravi, Judicial Member For the Appellant : Shri Subhash Agarwal, Advocate, ld.AR For the Respondent : Shri Sallong Yaden, Addl.CIT, ld. Sr.DR ORDER Shri S.S.Viswanethra Ravi, JM: This appeal by the Assessee is directed against the order of the Commissioner of Income Tax (Appeals), 15, Kolkata dt. 25-02-2015 for the A.Y 2010-11. 2. Brief facts of the case are that the assessee is an individual and engaged in real estate and civil construction business. The assessee filed his e-return declaring total income of ₹ 54,47,604/- on 28-0- 2010. Notices u/s. 143(2) and 142(1) of the Act were issued. In response to said notices, the AR representing the assessee filed details and produced documents before the AO in support of the claim. The AO considering the submissions along with details filed determined the total inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be made by taking into consideration only those shares which have yielded the dividend income for the A.Y under consideration and prayed to remand the issue involved in the appeal to the file of AO for his fresh verification. 8. On the other hand, the ld.DR relied on the orders of the AO CIT-A. 9. Heard both the parties and perused the record. We also find that the assessee earned dividend of ₹ 64,392/- and disallowance should not exceed the dividend income in terms of decision dt. 06-12- 2017 as relied on by the assessee. Admittedly, the AO made disallowance more than the dividend income as earned by the assessee. The order of this Co-ordinate Bench of this Tribunal in the case of REI Agro held that in order to make disallowance under Rule 8D(2) of the IT Rules, 1962 the AO has to give cogent reason for such disallowance. It is also held disallowance made under Rule 8D(2) and disallowance should be in relation to dividend income as earned. The Hon ble High Court of Calcutta in the case of supra upheld the above view of the Co-ordinate Bench of this Tribunal vide its order dt. 22-12-2013. Therefore, taking into consideration the law laid down by the Hon ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Co-ordinate Bench, which was upheld by the Hon ble High Court of Punjab Haryana in the case of supra. The ld.AR referred to question of law raised by the revenue before the Hon ble High Court of Punjab Haryana and argued that the Hon ble High Court dismissed the substantial question of law raised by the revenue and confirmed the finding of Co-ordinate Bench in treating the said expenditure as revenue in nature. 16. The ld.DR relied on the orders of the AO CIT-A. 17. Heard rival submissions and perused the material on record. We find that the issue in hand is identical to the facts of Hon ble Punjab Haryana High Court in the case of Random Constructors P.Ltd. supra. The Hon ble High Court of Punjab Haryana held that without there being any material to show that the shuttering materials has value after its life time on account of scrap and the AO cannot come to conclusion that there was income on account of scrap. The substantial question of law raised by the revenue before the Hon ble High Court of Punjab Haryana and the finding of it is reproduced herein below:- 1. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- Rs.37,85,829/- Bengal Chemicals Pharmaceuticals Ltd Rs.194,21,042/- Rs.185,59,869/- Bengal Peerless Housing Development Co.Ltd. Rs.383,38,098/- Rs.369,99,209/- Bengal Shapoorji Housing Development Pvt. Ltd. 29,54,889/- Rs.28,40,213/- Bhangore-Rajarhat Area Development Authority Rs.665,39,159/- Rs.621,85,121/- 21. According to AO, the difference between the above mentioned five parties is of ₹ 43,54,038/-. Similarly, a difference of ₹ 4,633/- found between the income as per ITR and income as undertaken from State Bank of Bikaner Jaipur. The AO added an amount of ₹ 43,58,671 ( ₹ 43,54,038 + ₹ 4633) to the total income of assessee. 22. Before the CIT-A, the assessee contended that the said difference of ₹ 43,58,671/- was occurred due to non consideration of TDS schedule in the name of actual party and wrong inclusion of name of other party, inclusion of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.2,51,59,628/- Less: Income already offered to tax in earlier year ₹ 65,99,759/- Income shown in books of account ₹ 1,85,59,869/- Thus the assessee has claimed that there is no difference. In the rejoinder the assessee has also clarified the confusion on the part of the AO regarding TDS done. It is seen that there is no actual difference. Thus there is no revenue impact in this case also. ( c) M/s. Bengal Peerless Housing Development Co. Ltd In this case there is difference. The assessee has declared receipts from the party at ₹ 3,69,98,209/- but the Form 26AS as well as the TDS certificate duly mention the sum paid/credited to the assessee at ₹ 3.83.38.098/- and the assessee has taken full credit for the TDS done by the party also. The assessee has attempted to reconcile the difference by claiming that he has offered a sum of ₹ 6,09,193/- in the next financial year and a further sums of ₹ 7,29,696/- was explained to be the service tax component. After considering the facts of the case, it is held that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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