Pramod Kumar Tiwari, Raipur vs Dcit, (Cpc), Bengaluru on 7 September, 2022
5. Accordingly, in the facts and circumstances of the case, the decision of the
Bangalore Benches of the Tribunal in the case of Shri Arthur Bernad Sebastine Pais
vs. Dy. Commissioner of Income Tax, CPC, Bangalore (supra) is not applicable. In
the said case before the Bangalore Benches of the Tribunal, the controversy was only
regarding applicability of section 44AD or section 44ADA. Whereas in the case in
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ITA No.12/Alld/ 2022
Pramod Kumar Tiwari
hand, the assessee has admittedly filed the return under wrong provisions of
presumptive tax under section 44ADA whereas the commission income as reflected
in Form 26AS is subjected to TDS under section 194H and is required to be declared
in Form ITR 3 as per the normal computation of income and not under presumptive
income under the provisions of section 44ADA of the Act. The assessee has filed the
profit and loss account showing the income declared and the return of income as the
net profit after deduction of expenditure from the gross commission income. The
CIT(A) has dismissed the appeal of the assessee by citing the reason that the mistake
in filing ITR 4 could have been rectified by the assessee by filing the revised return.
The CIT(A) was of the view that the assessee has not availed the option available
under the Income Tax Act. It is pertinent to note that when the assessee is having no
other business activity then the commission income then the adjustment made by the
CPC has resulted a double addition to the extent of Rs. 12,64,692/- already declared
by the assessee in the return of income as the CPC has made the adjustment of gross
amount of commission and not net income or profit out of the gross commission
receipts. Accordingly, having regard to the facts and circumstances of the case and in
the interest of justice, the impugned order of the CIT(A) is set aside and the matter is
remanded to the record of the AO for deciding the same afresh after considering all
the relevant facts and record to be produced by the assessee. Needless to say the
assessee be given an appropriate opportunity of hearing before passing the fresh
order.