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TMI Blog2019 (12) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... o the law, facts and circumstances of the case. 2. The Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs. 3,26,88,378/-, which was made by the assessing officer purely based op entries in Form 26AS, without making sufficient enquiry from the customers of the appellant and further without giving sufficient opportunity to the appellant. 3. The Commissioner of Income Tax (Appeals) having taken on record the detailed reconciliation statement, confirmation statements from customers and credit notes erred in not considering the same on the ground that application was not made for admission of new evidence. 4. The Commissioner of Income Tax (Appeals) having noted that no application was made for admission of additional evidences under rule 46A, erred in holding that the authorized representative could not make out that the evidences are not covered by exceptions prescribed under Rule 46A. 5. The Commissioner of income Tax (Appeals) failed to exercise his power vested under Rule 46A(4) of the Income Tax Rules, 1961 thereby ignoring the duty associated with such power. 6. The Commissioner of Income Tax (Appeals) erred in holding that the appellant has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or government taxes payable included in aforesaid differential income viz. Service Tax/VAT/CST to the tune of 12% and brought to tax remaining amount to the tune of Rs. 3,26,88,378/- by making additions to the income of the assessee, as detailed hereunder: SNo. Deductor Name Form 26AS income (Rs.) Income offered (Rs.) Add: 12% on (4) treated as ST/VAT/CST (Rs.) Total of (4) + (5) Income not offered (3) - (6) (1) (2) (3) (4) (5) (6) (7) 1 HCL Infosystems Limited 2,16,68,159 1,36,30,990 16,35,719 1,52,66,709 64,01,450 2 Sonata Information Technology Limited 12,56,45,854 8,87,13,327 1,06,45,599 9,93,58,926 2,62,86,928 Total 3,26,88,378 The AO brought to tax aforesaid income in the hands of the assessee both under normal provisions of income-tax as well while computing book profits u/s 115JB of the 1961 Act, vide assessment order dated 08.02.2013 passed u/s.143(3) of the Act. 4. Aggrieved by an assessment framed by the AO, the assessee filed first appeal with learned CIT(A) and the assessee claimed to have submitted reconciliation of income offered to tax vis-à-vis income as reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgement in the case of Dream Shelters (P) Ltd vs. ITO by Hon'hle ITAT Agra Bench (2013) 29 Taxmann 14 (Agra-Trib} wherein it has been held that the loan income admitted by the assessee should be added for MAT purpose also. Therefore, in view of the above, the income not included in audited statement is added back to book profit " Thereafter, as per the computation of book profit in page 4 of the assessment order, the AO has added Rs. 3,26,88,378/- to the book profit. The appellant has not challenged the adjustment to the book profit u/s 115JB. In the present appeal, the appellant has only challenged the addition under normal provisions and not under the provisions of section 11SJB, Having accepted the adjustment u/s.115JB which has attained finality, there is justification for the addition made under normal provisions of the Act as well. 7. The appellant has stated before the A.O that the difference is on account of service tax/VAT/CST and in this regard, the AO has already allowed an average of 12% for the same. 8. Further, the appellant has claimed credit for TDS for the entire receipts as reflected in Form no.26AS. As per the provisions of Section 199 r.w.s 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings and rejected additional evidences filed by the assessee. It is prayed by learned counsel for the assessee that these additional evidences go to root of the matter and be admitted in the interest of substantial justice to resolve dispute between rival parties. It is prayed that the matter be set aside and restored to the file of AO for denovo assessment and the assessee will produce all these additional evidences before AO in denovo assessment proceedings wherein the AO can verify these additional evidences and then framed denovo assessment on merits in accordance with law. On additions being made to the book profit of the assessee u/s 115JB of the 1961 Act, of the aforesaid additions being made to income under normal provisions of the 1961 Act , it is the say of learned counsel for the assessee that the said additions to compute book profit u/s 115JB of the 1961 Act is consequential in nature . The Ld.DR, on the other hand, fairly submitted that the matter can be set aside and restored back to file of AO for necessary verifications and denovo determination of the issue on merits in accordance with law. Thus, in nut-shell both the rival parties are also of the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant to the assessment year 2009-10 & 2010-11 respectively before learned CIT(A). The learned CIT(A) did not admitted these additional evidences and hence these additional evidences have not stood the test of verification and enquiry by authorities below. Both the parties before us has also fairly agreed that one more opportunity is to be accorded to assessee to prove its case. We are of the considered view that there could be several reasons for mismatch between income as is reflected in Form 26AS and income offered to tax in return of income filed with Revenue which could be due to recognition of income in the preceding year or in the subsequent year by the taxpayer vis-a-vis the other party owing to stage of completion of the work, different method of accounting followed by taxpayer and other party , deficiency in rendering of services /supplies which could lead to rejection of material/services rendered , credit notes /debit notes issued by one party while the same is not accounted by other party etc. . The assessee on its part has tried to reconcile its income as offered in the books of accounts with Form 26AS but the said evidences which are critical evidences going to the ro ..... 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