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TMI Blog2008 (7) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... out framing questions of law arising in this appeal admitted the appeal with the following observations: "We have heard learned counsel for both the parties. All that we need to record at this stage is that the points in issue require further consideration. The appeal is accordingly admitted since the respondents are represented, fresh notice is unnecessary." Thereafter the matter was listed for final hearing before a Division Bench of this court which by its order dated May 30, 2006, affirming the order of assessment permitting the Revenue to raise the demand, granted four weeks' time for the assessee to produce satisfactory proof before the Assessing Officer to cancel the demand and adjust the amount of demand in the light of the proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act. The Assessing Officer called upon the representative of the assessee as well as the managing partner of the assessee-firm and after verifying the details produced by the assessee the order of assessment was completed. 5. The assessee-firm is a contractor undertaken the work entrusted to it by the PWD/Government departments. According to the assessee, all the works were assigned to sub-contractors. Most of the sub-contractors were none other than the partners of the assessee-firm. The Assessing Officer having noticed that there was no tripartite agreement between PWD/ Government department, the assessee and the sub-contractors held that the assessee-firm alone is solely responsible for the State Government as a contractor. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount received by the P. had been declared by the assessee during the relevant assessment years and therefore, it cannot be included again since it amounts to double taxation and in the running bills of the relevant assessment years the break amount was shown by the assessee. Therefore, the assessee requested the Commissioner of Income-tax (Appeals) to delete these two additions allow the appeal accordingly. 7. The Commissioner of Income-tax (Appeals) considering the case pleaded by the assessee came to the conclusion that the receipt of Rs.24,55,097.85 by the assessee was for and on behalf of the sub-contractors and it is for the sub-contractors to explain the same and tax has to be paid by them. Accordingly, it was ordered to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that an amount of Rs.25,70,785 was received by the assessee on behalf of the sub-contractors and that the sub-contractors in turn had assessed to tax? 2. Whether the Commissioner of Income-tax (Appeals) as well as the Tribunal were justified in deleting a sum of Rs.12,13,083 retention amount without adequate proof to show that the same was assessed to tax in the earlier years?" 9. After hearing learned counsel for both parties and on perusal of the records, it is not in dispute that the contract work was undertaken by the assessee from the Government. As rightly put by learned counsel for the Revenue, there is no tripartite agreement between the principal-contractor and the sub-contractor. The agreement is bilateral. The work is entrust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which in turn passed on to the sub-contractors by the assessee. Since these documents were not produced by the assessee before the Assessing Officer, we are of the opinion that a liberty should be given to the assessee to produce these documents and prove that the arbitration award amount received by the assessee in turn had been passed on to the sub-contractors and the sub-contractors have paid tax thereon. If such an opportunity is not given to the assessee, it amounts to calling upon the assessee to pay tax again. If tax had been paid by the sub-contractors and again if the assessee is called upon to pay tax, the same would amounts to double taxation. In the interest of justice we are of the opinion that answering question of law No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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