IN THE INCOME TAX APPELLATE TRIBUNAL
`E' : NEW DELHI
DELHI BENCH `E
BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND
GARG, JUDICIAL MEMBER
SHRI CHANDRA MOHAN GARG,
No.5791/Del/2012
ITA No.
2008-09
Assessment Year : 2008-
M/s OSGL Buildwell Pvt.Ltd., Vs. Assistant Commissioner of
LU-
LU-108, Second Floor, Income Tax,
Pitampura, Circle-
Circle-13(1),
Delhi 110 088. New Delhi.
PAN : AAACO9334N.
(Appellant) (Respondent)
Appellant by : Shri S.C. Garg, CA.
Respondent by : Shri P. Dam Kanunjha, Sr.DR.
ORDER
PER G.D. AGRAWAL, VP :
This appeal by the assessee is directed against the order of
learned CIT(A)-XVI, New Delhi dated 7th August, 2012 for the AY 2008-
09.
2. The assessee has raised the following grounds of appeal:-
"1. The ld.ACIT erred in law & on facts in making
addition of Rs.4324908/- and the ld.CIT(A) erred in
confirming the said addition to the income of the
assessee towards difference in contractual receipts
between those as per AIR data and as per books of
account on the facts & in the circumstances of the case
particularly when the difference was duly explained by
the assessee with evidence.
2. The ld.ACIT erred in law & on facts in taking the
total contractual receipts of the appellant as per the AIR
data rather than as per the books of account of the
appellant in the facts and circumstances of the case
when the assessee had duly proved that contractual
receipts shown in the books of account were according
to generally accepted accounting principles and the
2 ITA-5791/Del/2012
ld.CIT(A) erred in law & on facts in confirming the action
of the AO.
3. The ld.ACIT erred in law & on facts in taking
adverse view of the fact that some contractees did not
respond to his notices u/s 133(6) particularly when
notices were sent at the request of the assessee and
the ld.CIT(A) erred in law & on facts in confirming the
action of the AO.
4. The ld. CIT(A) erred in law & on facts in confirming
the action of the AO of rejection of books of account u/s
145(3) of the Income Tax Act in the facts and
circumstances of the case.
5. The ld. CIT(A) erred on facts in observing that the
appellant had agreed before the AO for inclusion of the
amounts of Rs.4324908/- as its contract receipts in
accordance with AIR data. The fact of the matter is that
the assessee had made a conditional submission and
had worked out the net effect/deviation in contract
receipts at Rs.3216950/- vide submissions dated
09.11.2010. The submissions were made after
explaining why the receipts were properly excluded
earlier."
3. At the time of hearing before us, it is submitted by the learned
counsel that the assessee derives income from execution of the
contract work. For the year under consideration, the contract receipt
disclosed by the assessee was `83,08,624/-. The assessee had filed
the return disclosing the net loss of `45,36,133/-. That the Assessing
Officer considered the loss disclosed by the assessee as income.
Further, the Assessing Officer also made the addition of `45,37,596/-
for the alleged variation in the contract receipt. He stated that the
Assessing Officer had received the information from AIR data as per
which the receipt by the assessee was understated in respect of four
projects by a sum of `43,24,908/-. It is submitted by the learned
counsel that the assessee is following the consistent method of
recording the receipt when the bill submitted by the assessee is
approved and accepted by the contractee. That the assessee has
recorded all the receipts either in this year or in the next year as per
3 ITA-5791/Del/2012
the method of accounting being regularly followed by the assessee.
That the Assessing Officer did not give the details to the assessee on
what basis AIR data is being collected. The Assessing Officer also did
not allow adequate opportunity to reconcile the difference between
receipt as per A.I. R. and as per books of account. He, therefore,
submitted that the addition made by the Assessing Officer should be
deleted or alternatively, the matter may be set aside to the file of the
Assessing Officer for providing adequate opportunity to the assessee to
reconcile the difference. He further submitted that if the matter is set
aside, the Assessing Officer should be further directed to exclude the
income from subsequent years if he is making the addition in this year
in respect of the receipt which is recorded by the assessee in the
subsequent year. He also requested that the Assessing Officer may be
directed to treat the returned income as loss of `45,36,133/- and not as
profit.
4. Learned DR, on the other hand, relied upon the order of the
Assessing Officer as well as learned CIT(A). However, he has no
serious objection with regard to setting aside the matter to the file of
the Assessing Officer.
5. After considering the arguments of both the sides and perusing
the facts of the case, in our opinion, the matter needs re-examination
at the end of the Assessing Officer. We, therefore, set aside the orders
of authorities below and restore the matter to the file of the Assessing
Officer. We direct the Assessing Officer to first verify whether the
assessee filed the return disclosing loss or profit of `45,36,133/-. In
this regard, he may verify the assessee's profit & loss account, books
of account and then verify whether there was loss or profit of
`45,36,133/-. Further, he will allow adequate opportunity to the
assessee to reconcile the discrepancy in the receipt of the assessee.
After considering the reconciliation of the assessee and all the facts of
the case available with him, he will make the assessment afresh in
4 ITA-5791/Del/2012
accordance with law. However, before we part with the matter, we
may mention that the Assessing Officer should ensure that neither any
receipt remain to be taxed nor same receipt is taxed twice. With these
observations, we set aside the matter to the file of the Assessing
Officer.
6. In the result, the appeal of the assessee is deemed to be allowed
for statistical purposes.
Decision pronounced in the open Court on 28th January, 2015.
Sd/- Sd/-
GARG)
(CHANDRA MOHAN GARG) AGRAWAL)
(G.D. AGRAWAL)
JUDICIAL MEMBER VICE PRESIDENT
Dated : 28.01.2015
VK.
Copy forwarded to: -
1. Appellant : M/s OSGL Buildwell Pvt.Ltd.,
LU-
LU-108, Second Floor, Pitampura, Delhi 110 088.
2. Respondent : Assistant Commissioner of Income Tax,
Circle-
Circle-13(1), New Delhi.
3. CIT
4. CIT(A)
5. DR, ITAT
Assistant Registrar
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