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TMI Blog2019 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... when the income was actually accrued to him. AO to verify the facts inter alia that the assessee has offered the amount of tax qua the commission received during the year under assessment, when the income was accrued and has paid income-tax thereon in AY 2007-08, qua the same amount of which TDS was deducted in 2006-07; that no loss has been accrued to the Revenue because the assessee had paid the dummy tax during the year under assessment and paid actual tax on receipt of actual payment; that each payee of the commission had deducted TDS on the amounts paid/discharged as service-tax by the assessee and as such assessee is entitled to the benefit of TDS deducted on that account to the tune of ₹ 1,64,564/-. If the aforesaid facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax which had been paid by the Appellant to the concerned authorities. D. For that the Ld. AO and the Ld. CIT(A) failed to appreciate that in the business of the Appellant, the commission accrues to the Appellant at the time of receipt of payment from the builder, which happened in the subsequent years and on which appropriate tax was paid by the Appellant. E. For that the Ld. AO and the Ld. CIT(A) failed to appreciate that this system of accounting has been accepted by the Department for the last around 15 years. 2. Briefly stated the facts necessary for adjudication of the issue at hand are : Originally assessment was framed in this case under section 143 (3) of the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground No.A which is a jurisdictional issue has not been pressed during the course of arguments, hence needs no adjudication and consequently decided against the assessee. GROUNDS NO.B, C, D E 6. Undisputedly, AO has made an addition of ₹ 46,12,885/- by noticing a difference in the total receipt of the assessee as per TDS certificate and return of income filed for AY 2009-10; that assessee has been consistently following mercantile method of accounting; that the assessee has already offered the amount in question to tax in AY 2007-08; that it is a revenue neutral exercise. 7. Ld. AR for the assessee challenging the impugned order passed by the AO/CIT(A) contended inter alia that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reconciliation was also brought on record before the ld. CIT (A) as is evident from the written submissions dated 23.07.2013 given to ld. CIT (A) which are part and parcel of the appeal file. We are of the considered view that since the assessee has already discharged the liability of servicetax, he is entitled to the benefit of TDS deducted on that account which has been computed at ₹ 1,64,564/-. 11. When the assessee has duly accounted for amount received in the year under assessment and in the subsequent assessment years, as per agreements entered into with builders, namely, Tata Housing Development Co. Ltd., DLF Home Developers Ltd., Emaar MGF Land Pvt. Ltd., Raheja Developers Pvt. Ltd. and Vatika City by follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived during the year under assessment, when the income was accrued and has paid income-tax thereon in AY 2007-08, qua the same amount of which TDS was deducted in 2006-07; that no loss has been accrued to the Revenue because the assessee had paid the dummy tax during the year under assessment and paid actual tax on receipt of actual payment; that each payee of the commission had deducted TDS on the amounts paid/discharged as service-tax by the assessee and as such assessee is entitled to the benefit of TDS deducted on that account to the tune of ₹ 1,64,564/-. If the aforesaid facts are verified to be correct then addition made by the AO is not sustainable and is required to be deleted. Consequently, Grounds No.B, C, D E are determ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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