9911796707
TMI Blog2024 (11) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. As we have already discussed in our preceding paragraph that the assessee has offered tax which according to him inadvertently not offered earlier. He has already given a chart that he is ready to pay as per the provisions made u/s 44AD of the Act and offer to tax of total turnover considered for income @ 6%. We are in this view to accept the contention of the assessee and accordingly, the appeal of the assessee is allowed by setting aside the order of the ld. CIT(A) and the ld. AO. The ld. AO is directed to accept the new offered to tax as mentioned by the assessee in chart (supra) and give effect to. Appeal filed by the assessee is allowed. - Pradip Kumar Choubey, Judicial Member And Sri Sanjay Awasthi, Accountant Member For the Assessee : Aayush Gupta, A.R. For the Department : Kallol Mistry, JCIT. ORDER PER PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER: This appeal filed by the assessee pertaining to the Assessment Year (in short AY ) 2018-19 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the Act ) by ld. Commissioner of Income-tax (Appeals)-10, Mumbai [in short ld. CIT(A) ] dated 26.03.2024 arising out of the assessment order framed u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d addition despite income having been offered to tax by the assessee u/s 44AD of Income Tax Act, 1961. 3. That the Learned Assessing Officer has erred in law by making addition of 6,36,509/-to the total income of the assessee on account of 'sundry balances written back' and 'miscellaneous receipts' under the head Income from other sources. The appellant had offered income @ 6% of the total turnover from eligible business on presumptive basis and hence, such further addition of 6,36,509/- under the head 'Income from Other Sources' is unjustified. 1.3. The ld. Counsel for the assessee has submitted that total turnover of the assessee during the AY 2018-19 due to the export sales was at Rs. 64,74,859/- and not Rs. 74,26,060/- as taken and computed by the ld. AO. The ld. Counsel for the assessee submits that the ld. AO has also considered and included the four sale bills which were raised and accounted for by the assessee during the FY 2016-17 and not FY 2017-18. The ld. Counsel for the assessee submits that considering these facts, the ld. CIT(A) has allowed the appeal of the assessee on this ground and directed the ld. AO to consider the same and calculate aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leather goods and during the year under consideration his total turnover from export sales was Rs. 64,74,859/-. It admits of no doubt that ld. CIT(A) after considering the sale bills and ledger account considered the case of the assessee regarding his turnover being genuine. So, this point is not in dispute that total turnover of the assessee during the year under consideration was Rs. 64,74,859/- and not Rs. 74,26,060/-. 2.1. Now, coming to the next point i.e. addition of Rs. 25,37,352/- as made by the ld. AO confirmed by the ld. CIT(A). It is important to mention here that the assessee has already offered income @ 6% of the total turnover from eligible business and in totality of his business and not on item-wise business. Going over the provisions of Section 44AD of the Act we find that there are two key words used for calculation of turnover; first, turnover and second, gross receipts. But the word gross receipts has not been defined in the Income Tax Act. Section 28 of the Act defines the receipt from business and profession wherein it has been categorised that the income shall be chargeable to the income tax under the head profits and gains of business or profession . The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Replenishment Certificate, being the Duty Remission Scheme under the export and import policy formulated and announced under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992); As per plain reading of sub clause (iiia) and (iiic) of section 28, it has been clarified that any duty of customs or excise re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971, shall be chargeable to income-tax under the head Profits and Gains of business or profession . 2.2. Ld. Counsel for the assessee has also drawn our attention to the Guidance Note of Tax Audit u/s 44AB of the Act issued by Institute of Chartered Accountant of India wherein it has been clarified that duty drawback is part of gross receipts for the purpose of calculation of turnover/gross receipts under the head Business and Profession . Ld. Counsel for the assessee has also drawn our attention to the judgment of the Coordinate Bench of ITAT Delhi in the case of Sanjay Bahl vs. ITO in ITA No. 5709-5710/Del/2018 order dated 24.04.2019. Going over the said decision, relevant portions are reproduced herein below: I have heard bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), I am of the view that the duty drawback is part of gross receipts. Therefore, I treat the same as part of gross receipts. The AO is directed to treat the duty drawback as part of gross receipts and addition so made is directed to be deleted. 3. Going over the facts of the case as well as the provisions of Section 44AD of the Act, we are in this view that Section 44AD of the Act is at all applicable to the case of the assessee for the relevant AY 2018-19. So far, the decisions relied upon by the ld. CIT(A) are concerned, the said decision dealt in Section 80IB of the Act. However, the present case is with regard to Section 44AD of the Act. There is a clear distinction in the facts of the decision of the Hon'ble Apex Court and the present case. As we have already discussed in our preceding paragraph that the assessee has offered tax which according to him inadvertently not offered earlier. He has already given a chart that he is ready to pay as per the provisions made u/s 44AD of the Act and offer to tax of total turnover considered for income @ 6%. 3.1. Considering the above facts, we are in this view to accept the contention of the assessee and accordingly, the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
