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TMI Blog2016 (4) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the addition of Rs. 31,80,844/- made out of the excavation charges debited by the assessee. 3. On the facts and circumstances and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 7,50,202/- made u/s 68 for want of adequate proof and substantiation at the time of assessment proceedings. 4. On the facts and circumstances and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 1,03,26,985/- made on account of non deduction of TDS out of the transportation charges well before the end of the financial year and corresponding disallowance u/s 40(i)(a). 5. On the facts and circumstances and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 50 lakhs being cash credit u/s 68 without verifying the facts pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental Representative has submitted that the CIT(A) has considered the apportionment expenses between excavation activity and transport activity as per separate profit and loss account which was not filed before the AO. 4.3 On the other hand, learned AR of the assessee has submitted that the entire record was produced before the AO and no new evidence or material was produced before the CIT(A). 4.4 We have considered the rival submissions as well as relevant material on record. The AO noted that the transport receipts are inclusive of excavation charges of Rs. 36,70,787/-. Further, the opening excavation work-in-progress was shown at Rs. 15,25,150/- and no closing work-in-progress was shown by the assessee. Accordingly, the AO worked out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 70% to hire charges. A gross profit of Rs. 42,30,003 was shown attributable to hire charges and Rs. 5,19,280 to excavation charges. Considered thus, the AO's conclusions are clearly unwarranted especially since he has given no reason for considering the entire diesel expenditure as attributable to excavation activity only and the appellant's grounds succeed. " Thus it is clear that only 30% of the diesel expenses of Rs. 27,00,090/- are attributable to the excavation activity and to that extent, the assessee would get relief. However, the CIT(A) has deleted the entire addition without considering the fact that addition of about Rs. 8 lakhs would be sustained, even if a proportionate 30% of diesel expenses is attributable toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er year and offered to tax. It was also shown as receivable in the balance sheet as on 01.04.2007 and this amount had been received and recorded in the books on 01.03.2008. I have examined this explanation of the appellant which is found to be factually correct. The addition is, therefore, directed to be deleted. " It is clear that the CIT(A) examined and verified the books of account and found that this amount was offered to tax on accrual basis in the earlier year. Even the said amount was shown as receivable from M/s Svs & Dvs (HUF), Goa in the balance sheet as on 1/4/2008 cannot be taxed because it was already offered to tax on accrual basis in the earlier year. Accordingly, we do not find any error or illegality in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion even when the TDS had been deposited before the due date specified u/s 139(1). It was contended that this amendment has been held to be operative with retrospective effect from 01.04.2005 by the Hon'ble Calcutta High Court in the case of CIT vs Virgin Creations (2011) (11) TMI 348 (HC). A similar position of accepting the retrospective operation of these provisions was held by the Hon'ble ITAT Bangalore in the case of ACIT vs Sri M. K Gurumurthy (ITA no.717/Bang/2011). I have gone through the judicial decisions cited and respectfully agree with the stand of the Hon'ble High Court and the ITAT. Since the appellant had deposited the TDS amount with interest before the due date of filing of return, and in view of the judicial decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned AR of the assessee and considered relevant material on record. The CIT(A) has dealt with this issue in para.9.1 as under: "9.1 Before me in appeal it was contended that out of the outstanding balance of Rs. 60,06,599 the assessee had furnished a confirmation for Rs. 50 lac and only the balance was subject to reconciliation, but the AO did not take into account this confirmation available. From the copy of the ledger account of this party/creditor in the appellant's books for FY 2007-08 it is seen that the impugned amount was only an opening balance as on 01.04.2007 against which no payment was made by the assessee during the year. The opening balance in question, therefore, is clearly the result of the transactions of earlier perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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