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TMI Blog2024 (8) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged receipt of Rs. 2,00,000 was not received by the assessee. 3. In the facts and circumstances of the case and in law, learned CIT(A) and learned AO erred in not appreciating that, entries reflected in Form 26AS are not sacrosanct and credit of Rs. 200,000 was being reflected due to wrong TDS return filed by deductor party i.e M/s V S Lignite Private Ltd. 4. In the facts and circumstances of the case and in law, learned CIT(A) and learned AO erred in not appreciating that, TDS amount of Rs. 20,000 was inadvertently claimed by the assessee in return filed due to import of TDS data from Form 26AS whereas, the corresponding receipt did not relate to the assessee. 5. In the facts and circumstances of the case and in law, learned CIT(A) and learned AO should have disallowed TDS credit of Rs. 20,000 rather than making addition of Rs. 200,000 to total income of the assessee. 6. The Appellant prays leave of the Hon'ble Tribunal to add, amend, alter any of the Grounds of Appeal." Brief facts of the case: 2. In this case the Assessing Officer has made addition of Rs. 2,00,000/- to the Income of the assessee on the ground that the said amount was reflected in the For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee vis-a-vis the TDS statement of the assessee hosted by the Income Tax department on its web-site for the previous year relevant to the assessment year 2014-2015. On production of such reconciliation statement, the learned A.O. pointed out that, one entry of TDS appearing in the Department's statement was not appearing in the records of the assessee. He further contended that the turnover or the credit against which such TDS was made by the deductor has also not been included in the sales turnover of the assessee. It was explained by the assessee, that the said entry in no way pertained to his business. To substantiate, the assessee produced his audited books of accounts (audited u/s 44AB of the Income Tax Act 1961) wherein the assessee had never accounted either any such credit or had accounted for any such TDS made. Also it was clarified that, the assessee was not in receipt of any sum of Rs. 2,00,000/- or Rs. 1,80,000/- (Rs. 2,00,000/- less Rs. 20,000 TDS) which remained as an un-reconciled amount in his books and records. It was further pointed out to the learned A.O. that, the assessee is a contractor and therefore his deductors usually deducted the TDS at the rate of 2% u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween form 26AS and the amount shown in the profit and loss account and in the absence of any reconciliation and corroborative evidence. In the case of Dr Swati Mahesh Vinchurkar, [2021] 130 taxmann.com 320 (Surat-Trib.), it has been held that where a payment was reflected in Form-26AS and was shown to have been made to assessee, it could not be brought to tax if it could not be established that assessee was actual beneficiary of said payment. In the case of Star Consortium [2021] 127 taxmann.com 681 (Kolkata - Trib.), it has been held that where difference between amount shown as turnover by assessee and as reflected in Form 26AS took place due to wrong data entry/information and lack of corresponding services by deductee to deductor, Form 26AS alone could not lead to addition of income. 5. It is therefore most respectfully submitted before your kind honour that the learned A. O. was not correct in making the aforesaid addition of Rs. 2,00,000/- in the case of the assessee without carrying out any cross verification whatsoever and by merely relying upon the incorrect and inaccurate data pushed by the department's systems to the AO. The learned A.O. has erred in disregardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit of Rs. 20,000/- the assessee agreed that the receipt was mistakenly claimed in the return of income filed, due to auto- population of TDS credit entries in return form, based on Form 26AS. He further clarified that, the assessee was not in receipt of any sum of Rs. 2,00.000/- or Rs. 1,80,000/- (Rs. 2,00,000/- less(-) Rs. 20,000/- TDS). Hence, no income accrues or arises to the assessee from the alleged credit/receipt from deductor i.e. M/s V S Lignite Private Ltd in assessment year 2014-15 and the deductor in this case was completely unknown to assessee. 6.2 The ld.AR relied on the following case laws : * Dr. Swati Mahesh Vinchurkar Vs. DCIT (130 taxmnn.com 320) (Surat ITAT) * Ito Vs. Star Consortium 127 (taxmann.com 681) (Kolkata ITAT) * Ito Vs. Smt. Darshiniben M. Adani (2019 (11) TMI 356) (Ahmedabad ITAT). Submission of ld.Departmental Representative (ld.DR) : 7. The ld.DR relied on the order of the AO & ld.CIT(A). The ld.DR has not rebutted any of the case laws relied by Assessee. The ld.DR has not rebutted contents of the Affidavit of the assessee. Findings & Analysis : 8. We have heard both the parties and perused the records. In this case, as it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of K.P.Varghese Vs.ITO 1981 AIR 1922 has observed as under : Quote, "It is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the Revenue". Unquote. 9. Assessee's books of accounts were audited. Assessee had filed Profit and Loss Account, Balance Sheet before the Lower Authorities. Assessee is a electrical contractor as mentioned in the assessment order. The total turnover of the assessee during the assessment year was Rs. 12,30,35,743.50 as shown in the Trading Account which is duly audited. The assessee has repeatedly denied any transaction with M/s. V.S. Lignite Power Private Limited. Assessee had filed TDS reconciliation statement & produced audited books before the AO. In these facts and circumstances of the case, the onus was on the Revenue to prove that assessee had received Rs. 2 lakhs from M/s. V. S. Lignite Power Private Limited and the impugned Rs. 2 lakhs is taxable as income. Revenue has not brought on record any evidence to demonstrate that Rs. 2 lakhs was received or accrued from M/s. V. S. Lignite Power Private Limited to assessee and the impugned Rs. 2 lakhs is taxable as income. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uliar facts of the present case, we find merit in the submissions of the ld AR for the assessee that the assessee had entered into any such transactions and the lower authorities have not made any verification or effort to verify such transactions and there is certain mistake of entering the wrong PAN, which belongs to the assessee and the addition made in the income is uncalled for." 11. We have already observed in earlier para that the Revenue has not proved by evidence that impugned amount of Rs. 2 lakhs is income of the assessee which is taxable. As held by the Hon'ble Supreme Court(supra), the onus was on the Revenue to prove that it is income of the assessee. Therefore, respectfully following the Hon'ble Supreme Court and ITAT(supra), we hold that the impugned amount of Rs. 2 lakhs is not income of the assessee. Accordingly, Assessing Officer is directed to delete the addition of Rs. 2 lakhs. However, assessee will not be eligible for credit of TDS amount of Rs. 20,000/- which has been admittedly claimed by assessee as erroneous. Accordingly, grounds of appeal raised by the assessee are allowed. 12. In the result, appeal of the assessee is allowed. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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