TMI Blog2018 (7) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... count - Held that:- It is not borne out from the records before us as to whether the assessee had claimed the full TDS credit in the return and assessment as reflected in Form 26AS. It is well settled that TDS is related to income offered thereon i.e the TDS could be claimed in the year in which the corresponding income is offered to tax by the assessee. No finding in this regard is given by both AO and the ld CITA for better appreciation of the facts. In our considered opinion, this requires factual verification by the ld AO. In these facts and circumstances, we deem it fit and appropriate, in the interest of justice and fairplay, to remand this issue to the file of the ld AO for denovo adjudication in accordance with law. The assessee is also directed to furnish proper reconciliation with Form 26AS in respect of each of the party and also given liberty to furnish further evidences in support of its contentions. Accordingly, the ground no. 2 raised by the revenue is allowed for statistical purposes. Addition addition made towards share capital as unexplained cash credit - Held that:- We find that the three shareholders had duly confirmed the factum of making investments in cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order passed by the ITO, Ward-4(4), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 29.03.2015 for the Assessment Year 2012-13. First let us take up the revenue appeal 2. The first issue to be decided in this appeal is as to whether the ld CITA was justified in deleting the disallowance made u/s 40(a)(ia) of the Act in the facts and circumstances of the case. 2.1. The brief facts of this issue are that the assessee is a private limited company engaged in the business of logistics and warehousing and had filed its return of income for the Asst Year 2012-13 on 23.8.2012 declaring total income of ₹ 1,67,79,745/-. Later this return was revised on 17.12.2012 declaring total income of ₹ 1,79,79,750/-. The ld AO on perusal of the profit and loss account noticed that assessee company had claimed expenditure on transportation and handling charges amounting to ₹ 5,57,26,122/-. The ld AO asked the assessee to furnish the details of the same together with compliance of TDS provisions thereon. The assessee replied before the ld AO vide its letter dated 16.3.2013 as under:- Pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is in appeal before us. 2.5. We have heard the rival submissions. The ld DR vehemently relied on the order of the ld AO. We find that the ld CITA had deleted the disallowance on the ground that at the time of making payment or credit to the account of the payee, the compliance to TDS provisions are to be considered and looked from this perspective, the assessee in the instant case had indeed obtained PAN from all the transporters and accordingly not liable for deduction of tax at source in terms of section 194C(6) of the Act. We find that this would prove the compliance of the assessee in respect of provisions of section 194C(6) of the Act. However, we find that the legislature lays down further condition to the assessee u/s 194C(7) of the Act requiring the assessee to file those PAN before the concerned authority within the prescribed time. In our considered opinion, the provisions of section 194C(6) and 194C(7) of the Act are to be read together in order to serve the purpose of the legislature. We find that the purpose behind the provisions of section 194C(7) of the Act is to enable the revenue to take corresponding action with the payees (i.e transporters) and make verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,33,70,765/- 86,70,702/- 5. Environ Energy Corporation India Pvt. Ltd. 19,81,396/- 18,35,659/- 1,45,737/- 7. Idea Cellular Ltd. 58,16,487/- 57,60,109/- 56,378/- 8. Outotec India Pvt. Ltd. 12,92,385/- 12,83,615/- 8,770/- 11. Transcend Infrastructure Pvt. Ltd. 1,28,500/- 0 1,28,500/- Total Difference 90,10,087/- Accordingly, the ld AO added the difference in turnover of ₹ 90,10,087/- , which has been subjected to deduction of tax at source, to the total income of the assessee. 3.2. The assessee pleaded before the ld CITA that the total turnover shown by the assessee in its profit and loss account was ₹ 13,13,15,108/- , whereas the total turnover reflected in Form 26AS was only ₹ 8,25,48,615/-. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of each of the party and also given liberty to furnish further evidences in support of its contentions. Accordingly, the ground no. 2 raised by the revenue is allowed for statistical purposes. 4. The next issue to be decided in this appeal is as to whether the ld CITA was justified in deleting the addition made towards share capital as unexplained cash credit in the facts and circumstances of the case. 4.1. The brief facts of this issue are that the ld AO noticed that the assessee company had introduced fresh share capital of ₹ 50,00,000/- and share premium of ₹ 50,00,000/- during the year under consideration. The assessee furnished the details before the ld AO as under:- Name of the Share Holder As on 31.03.2011 As on 31.03.2012 Share Capital Share Premium Share Capital Share Premium Tutul Chowdhury 3,70,00,000 86,66,000 3,90,00,000 1,06,66,000 Anushree Chowdhury 15,00,000 6,67,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vings / income from salary and own business income and also from some amount of unsecured loans and as these loans had since been repaid in April 2014, they were unable to recollect the lender s name. The ld AO based on these replies observed that the three shareholders could not satisfactorily prove the source for making investments in cash towards the share capital and share premium to the tune of ₹ 71,85,000/- and accordingly treated the same as unexplained cash credit u/s 68 of the Act. However, the ld AO accepted the investments made by these three parties in cheque to the tune of ₹ 28,15,000/- during the year under consideration. 4.4. The ld CITA observed that the ld AO having accepted the contributions made by these three shareholders by cheques ought not to have questioned their cash contributions in as much as they are regularly assessed to income tax and they had confirmed the fact of making investments both in cash and cheque in the assessee company. Accordingly, he deleted the addition made in the sum of ₹ 71,85,000/-. 4.5. Aggrieved, the revenue is in appeal before us . 4.6. We have heard the rival submissions. The facts stated hereinabove ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ld CITA following the various judgements on the impugned issue allowed the ground of the assessee. Aggrieved, the revenue is in appeal before us. 5.3. We have heard the rival submissions. We find that the ld DR was not able to provide any contrary case law before us nor was he able to controvert the claim of the assessee that no deduction per se was claimed by the assessee towards service tax so as to fall outside the ambit of section 43B of the Act. The ld AR argued that service tax portion is kept as a liability in the books and as and when the same is paid , the liability account gets knocked off. Hence it does not enter the profit and loss account at all. We find no infirmity in the order of the ld CITA granting relief to the assessee by placing reliance on various decisions. Accordingly, the Ground No. 4 raised by the revenue is dismissed. 6. The ld AR at the time of hearing stated that in view of smallness of the amount involved in Ground No. 5 raised by the revenue, he is not willing to press the same. Accordingly, the Ground No. 5 raised by the revenue is dismissed as not pressed in view of smallness of the amount involved therein. 7. The last issue to be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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