Section 40A read with section 206C of the income tax Act, 1961 — TCS — In view of the shifting stand taken by the assessee, no illegality can be found with the order of the Tribunal which, it must be remembered, has not restored the order of the Assessing Officer but has asked both the parties to lead evidence in support of their claims and by source no prejudice can be caused to the assessee.[2019] 52 ITCD 122 (P&H)
Facts:  The assessee is in the business of retail selling of liquor and for the relevant year he showed its income from business as Rs. 19,32,730/-. Later on, the case was selected for manual scrutiny and notice under Section 143 (2) of the Act and subsequently notice under Section 142 (1) and 143 (3) along with questionnaire were issued. The assessee appeared and stated that he has lost his books of accounts, bills, vouchers and produced a copy of complaint made with the Police Division No. 4, Patiala dated 17.12.2012 under Section 156 Cr.P.C In view of that, notices under Section 133 (6) were issued to various parties who had supplied material to the assessee. One of those parties disclosed that the assessee had made purchases of Rs. 7,91,61,309/- during the relevant year under consideration. One of the suppliers M/s Patiala Distrillers and Manufacturers limited, Patiala has informed that the appellant had made payment of Rs. 79,00,000/- odd through cash. Assessee was asked to explain the same in the circumstances enumerated in Section 40 (A)(4) 40 (A)(B) and it faint complete ignorance under the pretext that it had lost all its books of accounts and rather denied any relationship with one Mr. Ashok Kumar through whom payments had been routed. In these circumstances, the Assessing Officer added the entire amount of Rs.  79 Lakhs plus the total sales to the income of the assessee. The assessee filed an appeal and therefore, for the first time it put on record bank statement showing that TCS was collected most of them and on the basis of that the appellate authority set aside the order of the Assessing Officer and allowed all the expenses through bank forms 26AS. The Revenue carried up the matter to the Tribunal which vide impugned order has remanded the case back to the Assessing Officer.
Held,that learned counsel for the Revenue has argued that the assessee has been shifting his stand at various places. Before the Assessing Officer, his stand was that he has no dealing with the said Ashok Kumar while before the CIT, his stand was that Ashok Kumar was an agent of the supplier and therefore, payments were made to him.
He has further argued that the Tribunal has merely remanded the matter and has given opportunity to both the parties to substantiate the claims made by them and consequently, no interference is called for. We are in agreement with learned counsel for the Revenue. In view of the shifting stand taken by the appellant, no illegality can be found with the order of the Tribunal which, it must be remembered, has not restored the order of the Assessing Officer but has asked both the parties to lead evidence in support of their claims and by source no prejudice can be caused to the assessee. Consequently, the appeal stands dismissed.