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TMI Blog2012 (11) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... A. No.363/Ahd/2010 - - - Dated:- 20-7-2012 - Shri D.K. Tyagi and Shri T.R. Meena, JJ. Department by : Shri S.K. Gupta, CIT- D.R. Assessee by : Shri Sanjay R. Shah, A.R. ORDER PER : D.K. TYAGI, JUDICIAL MEMBER These are Revenues appeal against separate orders of ld. CIT(A), Gandhinagar, Ahmedabad dated 15.10.2009 and 03.11.2009. Since both the appeals belong to the same assessee and Revenue has taken common grounds in both the appeals and both the appeals were heard together, for the sake of convenience these are being disposed of by passing a consolidated order by taking the facts for assessment year 2002-03. 2. The common grounds taken by the Revenue reads as under:- The ld. CIT(A)-Gandhinagar has err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. However, the A.O. did not agree with the stand of the assessee company. He was of the view that since bills were raised and the bills have been passed, the entire amount had accrued to the assessee. The A.O. specifically stressed the point that the fact that the revenue has been recognized in assessee s books of account and the tax has been deducted on the full amount without deduction of the retention money would show that the full amount has accrued to the assessee. He also referred to the fact that assessee furnished bank guarantee as a measure and as obligation for its due performance. The assessee relied on various case laws before the A.O. However, the A.O., placing reliance on the decision of Hon ble ITAT, Ahmedabad in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Calcutta High Court in the case of Simplex Concrete Piles Pvt., Ltd. (supra) but came to the conclusion that the facts of the case are different, namely it involved security deposit on the part of the appellant and the retention monies. In this case as well as in some of the other case, the concept of retention money and security deposit has been clearly distinguished. Hence, considering the legal position and facts of the case, it is held that the monies retained by the principal as per provisions of contracts as retention money can not be included in the total income. Aggrieved by this order of ld. CIT(A) now the Revenue is in appeal before us. 4. At the time of hearing, ld. D.R. relied on the order of the A.O. and further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le ITAT, while deciding the issue in favour of the assessee has observed as under:- We have carefully considered the orders of the authorities below and submissions of the learned representatives of both the parties. We have gone through the cases (supra) cited by learned representatives of both parties. We observe that the similar issue has been considered by ITAT (TM) in the case of Associated Cables Pvt. Ltd. (supra) as under: 90 percent of value of assessee s goods were billed on dispatch, and 10 percent was payable upon completion of warranty period. This amount retained was conditional on fulfillment of certain representations made by assessee to customers. As per the agreement entered into with the customers, amount retained wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Further we observed that the assessee received a part of retention money against bank guarantee in the preceding assessment years, the details of which are given by Assessing Officer at Page 2 and also mentioned herein above in Para 3 at Page 3 of this order. During the course of hearing the learned Authorized Representative submitted that the assessee is following consistently to offer for taxation the part released of retention money against bank guarantee in the assessment year in which right to receive the said release of retention money accrued to the assessee unconditionally. The learned Departmental Representative also did not dispute the above contention of learned Authorized Representative at the time of hearing. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther find that DCIT Vs. Amarshiv Construction (P) Ltd. (supra) decision dealt with the issue whether the assessee had in fact received the amount of security deposit by furnishing bank guarantee which is clear from para 15 of that decision which reads as under:- In our opinion, it accrued to the assessee and thereafter retained by way of additional security and in fact received by the assessee by furnishing a bank guarantee . 9. In the instant case there is no dispute about the fact that assessee has not received any money out of the amount retained as retention money by the contractee. These are some of the distinguishing features between the case of assessee and DCIT Vs. Amarshiv Construction (P) Ltd. (supra) case. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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