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2023 (7) TMI 395 - AT - Income TaxAddition to the total income of assessee under pretext of mismatch in the amount of sales turnover as per accounts - assessee is engaged in the profession of consultancy relating to construction diagnosis under his proprietary concern - HELD THAT - AR has merely filed three sample sale invoices, however, these sample invoices do not demonstrate that the actual amount which has been deposited in bank contains sales tax amount also. In Form 3CD column No. 26 is regarding sum referred in s. 43B . Thus, column 26 is regarding sales tax, custom duty, excise duty etc. In column No. 26, assessee has merely returned NIL. It means, in Form 3CD, assessee has not claimed that there is NIL sales tax amount collected by assessee and out of that NIL amount deposited by assessee and outstanding at the end of the year is NIL. If there is any sales tax amount collected/outstanding which could have been shown in Form 3CD (column No. 26), but not such amount appears in column No. 26 of Form 3CD. Form 3CD is duly signed by Chartered Accountant (CA). The assessee along with the return of income has filed details of TDS and gross receipts. The said gross receipts have been shown by the assessee in profit and loss account, therefore, the assessee s plea which he has taken before us that gross receipts includes sales tax amount is factually incorrect, as in schedule 6, assessee has shown gross receipts TDS and that gross receipts has been shown in profit and loss account. Had there been any component of sales tax, assessee would have qualified it either in the statement of income or in Form 3CD, but nowhere assessee has qualified the same.T he assessee s claim that the difference is on account of sales tax liability is devoid of merit, therefore we uphold the addition made by the AO. Accordingly, ground Nos. 1 to 3 are dismissed. Addition made out of the purview of limited scrutiny - HELD THAT - One of the reasons for selection of case for scrutiny was higher turnover reported in service tax return compared to ITR, mismatch in sales turnover reported in audit report and ITR mismatch, 26AS and ITR. Thus, the case was mainly selected on ground of mismatch between the figures shown by the assessee in income tax return vis-a-vis other. The AO has made the addition to the turnover of the assessee based on this mismatch only. Therefore, there is no merit in this ground and accordingly, ground No. 4 of the assessee is dismissed. Difference in receipts/sales which the assessee has agreed in assessment and/appellate proceedings be ignored and deleted since the said agreement was not in keeping with facts and circumstances of the case and the law - HELD THAT - If assessee has agreed for the difference, then there is no reason for the assessee to file this appeal unless assessee proves that acceptance was on account of coercion, threat, undue influence. In this case, the assessee has not alleged that there was any coercion, threat, undue influence. In these facts and circumstances of the case, the ground No. 5 of the assessee is dismissed. Thus, assessee has pleaded that the assessee has agreed for the difference in receipts/sales during the course of assessment proceedings. If assessee has agreed for the difference, then there is no reason for the assessee to file this appeal unless assessee proves that acceptance was on account of coercion, threat, undue influence. In this case, the assessee has not alleged that there was any coercion, threat, undue influence. In these facts and circumstances of the case, the ground No. 5 of the assessee is dismissed. Only profit element should be taxed, if at all addition is sustained - HELD THAT - The assessee in income and expenditure account, had claimed expenditure for AY 2015-16, but shown less turnover, therefore the expenditure pertaining to the said amount has already been claimed by the assessee in profit and loss account. Therefore, the AO was right in making addition of entire amount therefore there is no merit in the assessee s claim that only profit shall be taxed, hence, ground No. 6 of the assessee is dismissed. CIT(A) has not considered the submissions of the assessee AND has disposed the appeal without affording adequate opportunity of being heard - HELD THAT - There is no merit in the said ground as both the AO and the ld.CIT(A) had reproduced the assessee s submissions and have arrived at the decision after considering his submissions. Also CIT(A) has reproduced the assessee s submissions and after considering the submissions, ld.CIT(A) has passed the order. Therefore, there is no merit in the allegation leveled by the assessee that ld.CIT(A) has not given proper opportunity of hearing. Decided against assessee.
Issues Involved:
1. Addition of Rs. 19,74,561/- due to mismatch in sales turnover. 2. Scope of limited scrutiny. 3. Agreement to difference in receipts/sales. 4. Taxation of profit element. 5. Consideration of submissions by AO and CIT(A). 6. Adequate opportunity of being heard by CIT(A). Summary: Issue 1: Addition of Rs. 19,74,561/- due to mismatch in sales turnover The AO added Rs. 19,74,561/- to the assessee's income, citing a mismatch between the sales turnover reported in the Profit & Loss account and the actual receipts. The AO noted that the assessee followed a cash system of accounting but failed to reconcile the difference. The assessee argued that the difference was due to the inclusion of service tax in gross receipts, which was not reflected in the net sales reported. However, the Tribunal found no merit in this claim, as the assessee did not provide sufficient evidence to support the inclusion of service tax in the gross receipts. Consequently, the addition was upheld. Issue 2: Scope of limited scrutiny The assessee contended that the addition was beyond the scope of limited scrutiny. However, the Tribunal noted that the case was selected for scrutiny due to discrepancies in turnover reported in various documents, including the service tax return and ITR. The AO's addition was based on these discrepancies, which fell within the scope of limited scrutiny. Therefore, this ground was dismissed. Issue 3: Agreement to difference in receipts/sales The assessee argued that the agreed difference in receipts/sales during assessment and appellate proceedings should be ignored. The Tribunal dismissed this ground, stating that the assessee had not alleged any coercion, threat, or undue influence during the agreement. Issue 4: Taxation of profit element The assessee claimed that only the profit element of the difference should be taxed. The Tribunal dismissed this ground, noting that the expenditure related to the amount of Rs. 19,74,561/- had already been claimed in the Profit & Loss account. Therefore, the AO was justified in adding the entire amount. Issue 5: Consideration of submissions by AO and CIT(A) The assessee alleged that the AO and CIT(A) did not consider his submissions. The Tribunal found no merit in this claim, as both authorities had reproduced and considered the assessee's submissions before arriving at their decisions. This ground was dismissed. Issue 6: Adequate opportunity of being heard by CIT(A) The assessee contended that the CIT(A) disposed of the appeal without providing adequate opportunity for a hearing. The Tribunal dismissed this ground, observing that the CIT(A) had reproduced and considered the assessee's submissions in the order. Conclusion: The appeal of the assessee was dismissed in its entirety. The Tribunal upheld the addition of Rs. 19,74,561/- and found no merit in the other grounds raised by the assessee. The order was pronounced in open court on 11th May 2023.
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