Commissioner Of Income-Tax vs Sudhir Sekhri
2010 Latest Caselaw 1947 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 15.04.2010


+            ITA Nos.438/2010 & 460/2010


COMMISSIONER OF INCOME-TAX                               ... Appellant


                                     - versus -


SUDHIR SEKHRI                                            ... Respondent

Advocates who appeared in this case:

For the Appellant       : Mr Sanjeev Sabharwal
For the Respondent      : None



CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL) CM Nos.3924/2010 & 3938/2010

The delay in re-filing the appeals is condoned.

These applications stand disposed of.

ITA Nos. 438/2010 & 460/2010

1. These appeals raise identical issues and are, therefore, being

disposed of by this common order. Both the appeals arise out of the order

dated 05.12.2008 passed by the Income-tax Appellate Tribunal in ITA

Nos.2853 and 2854/Del/2007 relating to the assessment years 2003-04 and

2004-05.

2. The Assessing Officer had made an addition of Rs 36,06,749/-

on account of the discrepancy in the books of accounts and the TDS

certificate in relation to the assessment year 2003-04. For the year 2004-05,

an addition of Rs 23,54,619/- was similarly made. According to the

Assessing Officer, the revenue received by the assessee had been shown at a

lower figure in the books than as per the TDS certificate available with the

assessee. The Commissioner of Income-tax (Appeals) had also confirmed

the said additions. The Income-tax Appellate Tribunal, however, deleted

the said additions accepting the explanation given by the assessee.

3. The revenues were on account of fabrication charges stated to be

received by the assessee from Fabritex Exports Pvt. Ltd. As aforesaid, the

addition was made on the basis of the TDS certificate issued by the said

Fabritex Exports Pvt Ltd. When the assessee was asked to reconcile the

difference in the figures shown in the books as having been received from

Fabritex Exports Pvt. Ltd. and the figure as computed on the basis of the

TDS certificate, the assessee enclosed a certificate from the said Fabritex

Exports Pvt. Ltd stating therein that the amount stated in the TDS certificate

was computed by the computer incorrectly and the correct amounts were

disclosed to the Assessing Officer. A certificate from Fabritex Pvt. Ltd was

also filed before the Commissioner of Income-tax (Appeals), which showed

that the amount paid was only Rs 2.45 crores for the year 2003-04 and not

Rs 2.63 crores. It was apparent that the error had happened due to the fact

that though the tax was deducted at the rate of 2.20%, yet when the

certificates were made, the rate of tax deduction was shown as 2.05%.

Since the computer took the rate of deduction as 2.05% and applied the

same to the amount of Rs Rs 5,39,443/-, being the tax actually deducted, the

amount shown as paid to the assessee by Fabritex Exports Pvt. Ltd was

correspondingly increased. The certificate also indicated that as per the

ledger account maintained by Fabritex Exports Pvt. Ltd., the amount

payable and paid to the assessee for the fabrication charges was Rs 2.45

crores and not Rs 2.63 crores for the assessment year 2003-04.

4. The Commissioner of Income-tax (Appeals) did not accept this

explanation given by the assessee. However, in the appeal filed by the

assessee, the tribunal reconsidered the factual aspect of the matter and

accepted the explanation of the assessee. The tribunal took the view that the

addition made was only on the basis of the discrepancy in the TDS

Certificate and not on the basis of any finding that some extra charges were

received by the assessee, but had not been accounted for. The tribunal also

held that when the issuer of the certificate had certified that the mistake had

crept in due to the pre-fed computer-programme and certified that no other

charges other than what was reflected in the books of accounts of the

assessee had been paid to the assessee, the addition was not justified.

5. These are pure findings of fact. We find no perversity in the

findings recorded by the tribunal. No substantial question of law arises for

our consideration. The appeals are dismissed.

BADAR DURREZ AHMED, J

V.K. JAIN, J APRIL 15, 2010 dutt