TMI Blog2023 (12) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee. As such, on aggregation of income of the assessee from M/s Shivam Construction in 2 different AYs i.e. 2012- 13 and 2013-14, it is transpired that the assessee has shown excess income as evident from the reconciliation statement filed by the assessee before the Ld. PCIT As decided in Gujarat Engineering Co. vs CIT [ 2017 (3) TMI 383 - ITAT AHMEDABAD] return of income filed by the assessee in not offering the job work charges in the assessment year 2006-07 when the income has already been offered in the earlier assessment year cannot be said to be erroneous by any stretch of imagination - one of the two conditions, as noted above, is clearly not satisfied. The order u/s 263 is, therefore, liable to be struck down this on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2013-2014. 2. The only issue grievance of the assessee is that Ld. CIT(A) erred in holding assessment framed u/s 143(3) of the Act as erroneous in so far prejudicial to the interest of the revenue. 3. The facts in brief are that the assessee in the present case is a limited company and engaged in the business of providing Dredger and other Infrastructure facilities. The Ld. PCIT on examination of assessment records observed that the assessee is following mercantile system of accounting. As per the TDS certificate, the income of Rs. 3,95,72,000/- was reflecting from the party namely M/s Shivam construction against which the amount of TDS of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in 26AS for the year ended 31.3.2013(AY 2013-14) by Shivam Construction Rs. 3,95,72,000/- Excess(Short) credit in the books of the assessee Company Rs. 13,17,061/- 3.1 In view of the above, it was contended by the assessee that the income from M/s Shivam Construction was already suffered to tax in the earlier AY and therefore it cannot be said that the income of the assessee has been under assessed. 4. However, the Ld. PCIT disagreed with the contention of the assessee by observing as under: 6.1 In its reply, the assessee mainly contended that the difference is because of the reason that the receipts from M/s.Shivam Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. has not even discussed the same in the assessment order. If the assessee's contention that the receipts have been offered in A.Y. 12-13, 13-14 then in that case, why the credit of TDS has not been made in the respective years in proportion to the receipts? In this regard, no explanation has been submitted. Even in the submission given in the present still the discrepancy of Rs. 13,71,061/-remained to be explained. 6.2. Assessee also failed to submit any specific reply whatsoever on the points raised in the above referred notice u/s 263. Being it a complete scrutiny. A.O. was required to examine the veracity of TDS credit claimed with its nexus to the income offered in his return, which was not done by the Assessing Officer Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the rival contentions of both the parties and perused the materials available on record. From the preceding discussion, primarily, it appears that there is no loss to the revenue as far as income shown by the assessee from M/s Shivam Construction provided the same has been declared in two different AYs as demonstrated by the ld. AR for the assessee. As such, on aggregation of income of the assessee from M/s Shivam Construction in 2 different AYs i.e. 2012- 13 and 2013-14, it is transpired that the assessee has shown excess income by Rs. 13,17,061/- as evident from the reconciliation statement filed by the assessee before the Ld. PCIT which is reproduced somewhere in the preceding paragraph. 9.1 In this regard, we also note that the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r' on this score. Thus, one of the two conditions, as noted above, is clearly not satisfied. The order u/s 263 is, therefore, liable to be struck down this on score alone. In the absence of any demonstrable loss of revenue, interference in exercise of power under Section 263 cannot be justified. Decided in favour of assessee. 9.2 Be that as it may be, what we find from the preceding discussion is this that the veracity of the contention raised by the assessee before the Ld. PCIT has nowhere been verified either by the AO during the assessment proceedings or by the Ld. PCIT and accordingly no finding is thereon of such contention of the ld. AR. 9.3 Furthermore, we have also referred to the reply made by the assessee in respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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