Commissioner Of Income Tax, Udaipur v. Shri Bhim Singh Chundawat(D.b.income Tax Appeal

1 COMMISSIONER OF INCOME TAX, UDAIPUR VS. SHRIBHIM SINGH CHUNDAWAT(D.B.INCOME TAX APPEAL NO.34/15) Dated:- 22.4.16. HON'BLE MR.JUSTICE SANGEET LODHAHON'BLE MR.JUSTICE KAILASH CHANDRA SHARMA Mr.K.K.Bissa, for the Revenue. 1.This appeal is directed against order dated 25.7.14 passedby the Income Tax Appellate Tribunal (ITAT), Jodhpur Bench,Jodhpur, affirming the order dated 29.10.13, passed by theCommissioner of Income Tax (Appeals) ['CIT(A)'], Jodhpur,deleting the addition of Rs.18,08,219/- to the income of theassessee made by the Assessing Officer (A.O.) vide re-assessment order dated 20.12.11, for the assessment year2005-06. 2.The relevant facts are that the assessee, who is engaged inthe business of collection of toll tax, sales tax and royalty oncontract basis entered into with the Government Department,filed Return of income for the assessment year 2005-06declaring total income of Rs.36,21,496/-. The total income of theassessee was computed by the A.O. under Section 143(3) of theIncome Tax Act, 1961 (for short “the Act”) at Rs.3,78,32,562/-.Thereafter, the assessment was reopened for the reasonsrecorded and the assessee was served with a notice under COMMISSIONER OF INCOME TAX, UDAIPUR VS. SHRI BHIM SINGH CHUNDAWAT(D.B.INCOME TAX APPEAL NO.34/15) 2 Section 148 of the Act. The assessee vide letter dated 30.6.10prayed for treating the return of income filed by him for theassessment year 2005-06, as filed under Section 148 of the Act.The A.O. found that the assessee has made payments ofRs.1,38,60,000/- in respect of advance installments and monthlyinstallment in respect of Mangalwad Toll Naka as per TCScertificate under Section 206 C (5A) of the Act, issued by theResident Engineer, RSRDC Limited, Udaipur. Accordingly, thedifference amount of toll tax collected by the assessee estimatedat Rs.1,38,60,000/- as against Rs.1,20,51,781/- disclosed by theassessee in P&L account of Mangalwad Toll Naka, quantified atRs.18,08,219/- was added to the total income of the assessee. 3.Aggrieved by the re-assessment order dated 29.10.13passed by the A.O. as aforesaid, the assessee preferred anappeal before the CIT (A). After due consideration of the rivalsubmissions, CIT (A) arrived at the finding that the assessee wasawarded contract for collection of toll tax for Rs.2,52,00,000/-,which was payable in 12 equal installments and further, as perpara 1 of the agreement, in addition to the amount of securitydeposit which was 10% of approved bid amount, the assesseewas also required to deposit 17.5% of the bid valueRs.44,10,000/- (Rs.2,52,00,000 x 17.5%) and the balanceamount was required to be paid in equal installment of COMMISSIONER OF INCOME TAX, UDAIPUR VS. SHRI BHIM SINGH CHUNDAWAT(D.B.INCOME TAX APPEAL NO.34/15) Rs.18,90,000/-. The CIT (A) also observed that as per theagreement, the assessee was also required to deposit incometax (TCS) with RSRDC Ltd. and the same is deposited by theRSRDC and the assessee claimed credit of such tax deducted onthe strength of certificate to this effect issued in Form 27D. TheCIT (A) arrived at the finding that the advancement payment ofRs.18,08,219/- deposited with RSRDC, cannot be termed asreceipt/income of the assessee and accordingly, the additionmade by the A.O. was deleted. 4.The order passed by the CIT (A) has been affirmed by theITAT. Hence, this appeal. 5.Learned counsel appearing for the Revenue submitted thatan amount of Rs.1,38,60,000/- has been deposited by theassessee and TCS @ 2.244% has been collected on the entireamount and the assessee has claimed credit for the same andtherefore, it cannot be accepted that amount ofRs.1,38,60,000/- includes the advance payment ofRs.18,08,219/-. 6.We have considered the submissions of the learned counseland perused the material on record. 4.The order passed by the CIT (A) has been affirmed by theITAT. Hence, this appeal. 5.Learned counsel appearing for the Revenue submitted thatan amount of Rs.1,38,60,000/- has been deposited by theassessee and TCS @ 2.244% has been collected on the entireamount and the assessee has claimed credit for the same andtherefore, it cannot be accepted that amount ofRs.1,38,60,000/- includes the advance payment ofRs.18,08,219/-. 6.We have considered the submissions of the learned counseland perused the material on record. 7.It is a matter of record that amount of Rs.1,38,60,000/-deposited by the assessee includes advance payment ofinstallment @ 17.5% of the contract money i.e. 4 Rs.2,52,00,000/-, quantified at Rs.44,10,000/-. In this view ofthe matter, since the amount of Rs.1,38,60,000/- deposited bythe assessee includes the advance payment of Rs.18,08,219/-, which in no manner can be treated to be income of the assesseeduring the relevant assessment year. In the considered opinionof this court, the finding arrived at by the CIT (A), affirmed bythe ITAT, as aforesaid, remains a finding of fact, which cannot besaid to be capricious or perverse. 8.In view of the discussion above, no substantial question oflaw arises for consideration of this court in this appeal. 9.Accordingly, the appeal is dismissed in limine. (KAILASH CHANDRA SHARMA),J.(SANGEET LODHA),J.