TMI Blog2018 (5) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... in both the years are same there is no loss to the Revenue if the income is assessed in the subsequent assessment year. Addition account of un–reconciled AIR / ITS data - Held that:- The minimum the Assessing Officer could have done is to issue notices under section 133(6) or 131 of the Act to the concerned parties whose identities were available before the Assessing Officer, to ascertain the correct fact. When the assessee has asserted before the Assessing Officer that it has not received any such income, the Assessing Officer is duty bound to make proper enquiry before concluding that the disputed amount was earned by the assessee during the relevant assessment year. Instead of doing that the Assessing Officer has made the addition simply on the basis of AIR information, which, in our view is absolutely incorrect. Addition on account of un reconciled AIR data - Held hat:- As mentioned specific instances why the assessee could not reconcile certain entries in the AIR information, reason being, wrong mention of assessee’s PAN. Thus, the aforesaid facts clearly reveal that the figure shown in the AIR information in reality do not represent assessee’s income. Only on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority. 5. The learned Commissioner (Appeals) relying upon the decision of the Hon'ble Supreme Court in CIT v/s United Glass Manufacturing Co. Ltd. (Civil Appeal no.6447/2012, judgment dated 12th September 2012) and the order passed by him in case of assessee s holding company deleted the disallowance made by the Assessing Officer. 6. The learned Departmental Representative relying upon the observations of the Assessing Officer submitted that the expenditure incurred by the assessee being of an enduring nature is a capital expenditure, hence, is not allowable as deduction. 7. The learned Authorised Representative strongly relying upon the decision of the learned Commissioner (Appeals) submitted that the issue stands settled in favour of the assessee by the decision of the Hon'ble Supreme Court in United Glass Manufacturing Co. Ltd. (supra). Further, he also relied upon the following decisions of Tribunal: i) DCIT v/s Indian Oil Tanking Ltd., ITA no.4608/Mum./ 2001; ii) DCIT v/s Hinduja Global Solution Ltd., ITA no.1107/Mum./ 2014, dated 18.08.2017; and iii) ITO v/s Mars India Pvt. Ltd., ITA no.1573/Mum./2011, dated 05.10.2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year. In response, it was submitted by the assessee that the bills for the professional income received in April 2008 were raised in the said financial year on the basis of completion of work by the company and it was also accounted for in the said financial year. Therefore, it cannot be treated as income of impugned assessment year. However, the Assessing Officer did not find merit in the submissions of the assessee. He was of the view that the assessee could not have completed the work in such short period to raise the bill and receive payment in April 2008. Therefore, he held that the payments received in April 2008, were in respect of work completed in financial year 2007 08 relevant to the assessment year under dispute. Accordingly, he added back the amount of ₹ 1,48,39,217, to the income of the assessee. Assessee challenged the addition before the first appellate authority. 11. The learned Commissioner (Appeals) after considering the submissions of the assessee and taking note of the fact that similar addition made by the Assessing Officer in assessment year 2009 10 was deleted by him, followed the same and deleted the addition made by the Assessing Officer in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the orders passed by the Co ordinate Bench in assessee s own case for assessment years 2009 10, 2010 11 and 2011 12, as referred to above, it is seen that identical issue has been decided in favour of the assessee considering the fact that the assessee has accounted for the income in the assessment year, wherein, the bills were raised and income was received. Moreover, as held by the Hon'ble Supreme Court in case of CIT v/s Excel Industries Ltd. 38 Taxman 100 (SC), when the tax rate applicable in both the years are same there is no loss to the Revenue if the income is assessed in the subsequent assessment year. Thus, respectfully following the decision of the Co ordinate Bench in assessee s own case as referred to above, we uphold the decision of the learned Commissioner (Appeals) on this issue. Ground no.2, raised by the Revenue is dismissed. 15. In the result, Revenue s appeal is dismissed. ITA no.276/Mum./2016 Assessment Year 2010 11 16. In ground no.1, the Revenue has challenged the deletion of addition of ₹ 54,65,656, made by the Assessing Officer on account of un reconciled AIR / ITS data. 17. Briefly the facts are, during the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned Commissioner (Appeals) submitted that the assessee having not received the income in question, the Assessing Officer was not justified in making the addition simply relying upon the AIR information. In support of such submission assessee relied upon the following decisions: i) CIT v/s S. Ganesh, ITA no.1930/2011, dated 18.03.2014; ii) M/s. A.F. Ferguson Co. v/s JCIT Ors. ITA no.5037/ Mum./2012, etc., dated 17.10.2014; and iii) Shreeballabh R. Lohiya v/s ITO, ITA no.4120/Mum./2011, dated 08.08.2018. 21. We have considered rival submissions and perused materials on record. As could be seen from the facts emanating from record, in course of assessment proceedings the assessee to some extent has reconciled the discrepancies pointed out as per the AIR information. However, in respect of payments alleged to have been received from certain parties, the assessee though made all efforts to obtain information from the concerned parties, however, it failed in its attempt. It is evident, simply because the assessee was unable to reconcile a part of the payment allegedly received as per AIR information, the Assessing Officer proceeded to make the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord deleted the addition. 28. We have considered rival submissions and perused materials on record. As could be seen from the fact and material on record, out of the total amount of ₹ 38,94,955, only an amount of ₹ 8,92,303, could not be reconciled by the assessee with its books of account. As observed by the learned Commissioner (Appeals), as per the latest Form no.26AS entries aggregating to ₹ 20,86,160 were reversed by the payers and entries aggregating to ₹ 9,16,136 have been reconciled due to clarification provided by Balmer Lawrie. Thus, from the aforesaid facts, it is clear that the conclusion drawn by the Assessing Officer simply on the basis of AIR information was not correct. As observed by the learned Commissioner (Appeals), the Assessing Officer without making any enquiry with the payers had simply made the addition on the basis of AIR information. That being the case, in our considered opinion, the learned Commissioner (Appeals) was justified in deleting the addition made. In this regard, we are supported by the decisions cited before us by learned counsel for the assessee. Accordingly, we uphold the order of the learned Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orroborative evidence, apart from the AIR information, to establish the fact that the assessee has received the income as per AIR information, the addition cannot be sustained. 33. The learned Departmental Representative relying upon the observations of the Assessing Officer submitted that the onus is on the assessee to prove that the income as per the AIR information was not received by the assessee. 34. The learned Authorised Representative on the other hand strongly supported the decision of the learned Commissioner (Appeals) on the issue. In this context, he repeated the submissions made in respect of similar issues in the other appeals dealt by us in the earlier part of the order. 35. We have considered rival submissions and perused materials on record. Undisputedly, a reading of the assessment order makes it clear that the disputed addition has been made only on the basis of AIR information. It is evident, the Assessing Officer has accepted the fact that the assessee has partly reconciled the AIR information with its books of account. Thus, from the aforesaid facts, it becomes clear that the figure shown in the AIR information do not in reality represent assessee s inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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