2011 (10) TMI 642 - AT - Income Tax

Summary

Issues Involved:
1. Allowing credit on TDS.
2. Addition towards pipe damages, scrap sales, and sundry balance.
3. Levy of penalty u/s 271(1)(c).

Summary:

1. Allowing Credit on TDS:

The assessee received a loan from the contractee as mobilisation advances, and TDS was deducted. The assessing officer denied credit for the TDS certificates as the corresponding turnover was not offered for tax purposes. The CIT(A) allowed the appeal, reasoning that the assessee's funds were retained by the contractee in the form of tax liability. The Tribunal upheld the CIT(A)'s decision, referencing a similar case (ACIT Vs. M/s Bhoorathnam & Company) where credit for TDS was given as per Rule 37BA of the IT Rules, 1962. However, the Tribunal later followed the decision in M/s Limak Soma JV, stating that unless the income is offered for taxation, TDS credit cannot be given. Consequently, the Tribunal allowed the Revenue's appeal, setting aside the CIT(A)'s order.

2. Addition Towards Pipe Damages, Scrap Sales, and Sundry Balance:

The assessing officer added amounts for pipe damages, scrap sales, and sundry balance write-off as other income. The CIT(A) estimated profit on these at 9%. The Tribunal held that the entire turnover should be considered as income, as the expenditure incurred to earn this income is already claimed in the profit and loss account. Therefore, the Tribunal reversed the CIT(A)'s order, deciding in favor of the Revenue.

Regarding the sundry balance write-off, the Tribunal referenced the Supreme Court judgment in CIT Vs. Sugauli Sugar Works (P) Ltd., which held that unilateral write-off does not extinguish the debt. However, due to an amendment by the Finance Act, 1996, unilateral write-off is considered income u/s 41(1). Thus, the Tribunal decided against the assessee and in favor of the department.

3. Levy of Penalty u/s 271(1)(c):

During assessment, it was found that the assessee incurred unaccounted expenditure and made an unaccounted investment in immovable property. The assessee disclosed additional income but did not contest the further addition made by the Assessing Officer. The Assessing Officer levied a penalty u/s 271(1)(c). The Tribunal noted contradictory findings in the assessment order and found no conclusive evidence of concealment or furnishing inaccurate particulars of income. Therefore, the Tribunal deleted the penalty.

Conclusion:

In the result, the appeals in ITA 73 & 74/H/2011 are allowed, and the appeal of the assessee in ITA No.72/H/2011 is also allowed. Order pronounced in the open Court on 12th October, 2011.