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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 ..... . In these facts and circumstances of the case, the onus was on the Revenue to prove that assessee had received Rs. 2 lakhs from deductor party and the impugned amount is taxable as income. Revenue has not brought on record any evidence to demonstrate that sum was received or accrued to assessee and the impugned sum is taxable as income. As held in K.P.Varghese case [ 1981 (9) TMI 1 - SUPREME COURT ] the onus was on the Revenue to prove that it is income of the assessee. Therefore we hold that the impugned amount of Rs. 2 lakhs is not income of the assessee. Accordingly, AO 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. - SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER For the Appellant : Shri Abhay Agrawal Advocate For the Respondent : Shri Abhay Y. Marathe Sr. DR ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee against the order of ld. Commissioner of Income Tax (Appeals) [NFAC], dated 30.3.2022 emanating from assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs. 2,00,000/- from M/s V S Lignite Private Ltd. on which TDS of Rs. 20,000/- was deducted. The assessee was asked to reconcile the receipts front M/s V S Lignite Private Ltd. in the books of account. In response to this the assessee submitted that it has not done any transaction with M/s V S Lignite Private Ltd. and has not included the receipts in the profit and loss account. Further the assessee submitted that it has not claimed the credit of TDS of Rs. 20,000/- also. However from the TDS statement it is clear that the assessee has already claimed TDS credit of Rs. 20,000/- without showing the corresponding receipts. Further the assessee is taking plea that TDS is wrongly posted under his PAN. In such ease the assessee could have applied for correction the IDS returns of the deductor earlier, which has not been done by the assessee. 26AS is tax credit statement of the assessee, in which the amount credited to him is mentioned and is readily available to the assessee. The assessee has not proved that the amount credited does not belong to him and instead claimed the TDS credit. The assessee has come forward with the explanation only when confronted during the assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant to such credit turnover of Rs. 2,00,000/-. To this proposition of the A.O., the assessee explained the factual position that, the assessee had in no manner claimed the credit for TDS of Rs. 20,000/- in its return of income. The department s computer system automatically picks up the credit available as per their own TDS statements and effects the same at the time of processing the return. To this explanation, the learned A. O. confronted the assessee, as to why he had not rectified the TDS credit. To this assessee explained that it was beyond his control to change Page 3 of 4 the TDS return filed by somebody else. It is only the deductor who has the authority to change the TDS return filed by it. It was further explained that the deductor in this case was completely unknown to him. However the A.O. was not convinced with any of the explanations offered by the assessee and therefore proceeded to add an amount of Rs. 2,00,000/- to the total income of the assessee. 4. The A.O. ought to have ascertained the facts from the said deductor who had filed the incorrect and inaccurate TDS return showing the impugned turnover in the name of the assessee. The assessee should also have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return of income filed for A.Y.2014-15 deducted by VS Lignite Power Limited. Therefore the appellant submission that he had never accounted for any such TDS credit is not correct. 12.4.1 Since it is clear that the appellant had taken into account the amount of Rs. 20,000/- as TDS credit (deducted by VS Lignite Power Private Limited) in the return of income for A.Y.2014- 15, the case laws relied on by the appellant are distinguishable on this fact. 12.5 If the appellant has taken credit of TDS deducted by VS Lignite Power Limited for Rs. 20,000/-, the appellant should also have corresponding receipt as part of his total receipts as mentioned by Assessing Officer. The appellant has not done so, hence, I do not have any reason to interfere in the assessment order u/s 143(3) of the Assessing Officer on this issue. 5. Aggrieved by the order of ld.CIT(A), assessee has filed appeal before ITAT. Submission of the ld.Authorised Representative(ld.AR) : 6. The ld.AR also filed an affidavit of the assessee that assessee has not received any amount from V.S. Lignite Power Private Limited. 6.1 The ld.AR submitted that the assessee did not enter any transaction with deductor party i.e. M/s V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit and assessee do not have control on such automatic credits. Here, the AO has not verified from the impugned entity M/s. V.S. Lignite Power Private Limited. Neither ld.CIT(A) has bothered to verify from M/s. V.S. Lignite Power Private Limited. Merely certain amount is appearing in Form No.26AS does not mean that it is income of the assessee, if assessee has denied it. The Data in Form No.26AS is picked up from TDS Returns of the TDS Deductor. The assessee do not have any control on the amounts reflected as credits in Form No. 26AS. The onus is on Revenue to prove that income is taxable. The Hon ble Supreme Court in Parimisetti Seetharmamma Vs. CIT 57 ITR 532 (SC) has held as under : Quote By sections 3 and 4 the Act imposes a general liability to tax upon all income. But the Act does not provide that whatever is received by a person must be regarded as income liable to tax. In all cases in which a receipt is sought to be taxed as income, the burden lies upon the department to prove that it is within the taxing provision. Where however a receipt is of the nature of income, the burden of proving that it is not taxable because it falls within an exemption provided by the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2021] 191 ITD 434 (Surat Tribunal) has held as under : 5. We have considered the rival submissions of the parties and have gone through the orders of the lower authorities carefully. There is no dispute that the assessee is resident of Surat. The assessee is qualified Doctor being Pediatric (Child Specialist). While filing her return of income the assessee has shown income from profession and other sources. During the process by CPC, the additions were made in the hand of assessee on the basis of TDS shown in Form-26AS. We find that in response to the notice of CPC, the assessee denied of having such income and that her response was ignored. Before ld CIT(A) the assessee again specifically contended that she has not earned such income nor any work was performed by her. We find that despite specific contention of the assessee, the ld CIT(A) instead of verifying the facts confirmed the additions by taking view that it seems that CPC had considered the appellant explanation before making disallowance and that there is prima facie evidence. We find that both the authorities below acted in a mechanical way. There is no consideration of the contentions raised by the assessee that she ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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