NIRMAL BANG SECURITIES P.LTD, MUMBAI V. ACIT 4(2)(1), MUMBAI

ITA 1191/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4881 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Advance ruling; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI , JUDICIAL MEMBER ITA NO. 1191 / MUM . /2018 ( ASSESSMENT YEAR : 20 1 4 15 ) NIRMAL BANG SECURITIES PVT. LTD. 38 B, KHATAU BUILDING 2 ND FLOOR, ALKESH DINESH MODI MARG FORT, MUMBAI 400 023 PAN AAACN7369L . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 4(2)(1), MUMBAI . RESPONDENT ASSESSEE BY : SHRI ANANT N. PAI REVENUE BY : SHRI AARSI PRASAD DATE OF HEARING 13 . 0 3 .20 19 DATE OF ORDER 22.05.2019 O R D E R PER SHAMIM YAHYA, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER 02.06.2017 PASSED BY THE LEARNED CIT (A) 9, MUMBAI, AND PERTAINS TO THE ASSESSMENT YEAR 2014 15. T HE GROUNDS OF APPEAL READ AS UNDER : ADDITION OF BROKERAGE RECEIVED OF ` 16,82,153. THE HONBLE COMMISSIONER (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF ` 16,82,153, ON ACCOUNT OF NON CLAIM OF TDS OF ` 1,68,215, DEDUCTED ON BROKERAGE RECEIVED WHICH WAS DEPOSITED LATE BY THE TDS DEDUCTOR WHERE AS BROKERAGE INCOME OF ` 2 NIRMAL BANG SECURITIES PVT. LTD. 16,82,153, HAS ALREADY BEEN OFFERED FOR TAXATION AND ONLY THE CLAIM OF TDS WAS NOT TAKEN. THE ASSESSEE HAS NOT PLACED RELIANCE ON ANY ADVANCE RULING AND THE HONBLE CIT(A) HAS BEEN MIST AKEN WITH THE FACTS OF THE CASE. MOREOVER, NO TDS CREDIT OF ` 1,68,215, ON THE ABOVE BROKERAGE INCOME HAS BEEN GIVEN WHILE CALCULATING THE TAX ON ASSESSED INCOME EVEN THOUGH THE BROKERAGE INCOME HAS BEEN ADDED TWICE TO THE TOTAL INCOME. 2 . ON THIS ISSUE , THE A SSESSING O FFICER NOTED THAT IN THE 26AS STATEMENT , THERE WAS A TAX DEDUCTION AT SOURCE CREDIT OF ` 1,68,215 . HOWEVER , THE A SSESSING O FFICER NOTED THAT THE SAME WAS NOT REFLECTED IN THE ASSESSEES RETURN OF INCOME. UPON EXPLANATION , THE ASSESSEE EXPLA INED THAT THE SAID SUM REPRESENTED INCOME OF ` 16 , 8 2 ,153, WHICH HAS BEEN DULY BEEN OFFERED IN THE RETURN OF INCOME, HOWEVER , THE CREDIT FOR TAX DEDUCTION AT SOURCE FOR THE SUM OF ` 1,68,153, WAS NOT TAKEN AS THE DEDUCTOR HAD NOT DEPOSITED THE AMOUNT TO T HE G OVERNMENT ACCOUNT IN TIME. THE ASSESSEE ALSO REQUESTED THAT A SSESSING O FFICER TO GIVE IT THE CREDIT FOR THE TAX DEDUCTION AT SOURCE FOR THE SAID SUM OF ` 1,68,215, HOWEVER , THE A SSESSING O FFICER PROCEEDED TO MAKE THE ADDITION OF ` 16,82,153. 3 . B EFORE THE LEARNED CIT ( A ), THE ASSESSEE MADE THE NECESSARY SUBMISSIONS. H OWEVER , THE LEARNED CIT(A) REFERRED TO THE RELIANCE BY THE ASSESSEE UPON AN A UTHORITY FOR A DVANCE R ULING ORDER AND PROCEEDED TO SUSTAIN THE A SSESSING O FFICERS ADDITION. AGAINST THIS ORDER , ASSESSEE IS IN APPEAL BEFORE US. 3 NIRMAL BANG SECURITIES PVT. LTD. 4 . WE HAVE HEARD BOTH THE C OUNSEL AND PERUSED THE MATERIAL ON RECORD . LEARNED C OUNSEL OF THE ASSESSEE HAS CONTENDED THAT AUTHORITIES BELOW HAVE CLEARLY ERRED IN APPRECIATING THE SUBMISSION OF THE ASSESSEE. WE NOTE THAT THE A SSESSEE HAS DULY SUBMITTED THAT AGAINST THE SAID TAX DEDUCTION AT SOURCE AMOUNT OF ` 1,68,215, THE ASSESSEE HA S ALREADY OFFERED A SUM OF ` 16,82,153, AS INCOME. IN THESE CIRCUMSTANCES , IN OUR CONSIDERED OPINION , THIS ISSUE NEEDS TO BE REMITTED TO THE FILE OF A SSESSING O FFICER. THE A SSESSING O FFICER NEEDS TO EXAMINE THE ISSUE AFRESH KEEPING IN MIND THE ASSESSEES CLAIM THAT THE ASSESSEE HAS OFFERED A SUM OF ` 16,82,153, AS INCOME AND THE ASSESSEE NOW WISHES TO CLAIM CREDIT FOR A SUM OF ` 1,68,215, BEING THE TAX DEDUCTED AT SOURCE. ACCORDINGLY , THE ISSUE STANDS REMITTED TO THE FILE OF ASSESSING OFFICER. NEEDLESS TO ADD , THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. BOTH THE COUNSEL FAIRLY AGREED TO THE ABOVE PROPOSITION . 5 . IN THE RESULT , ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.05.2019 SD/ RAM LAL NEGI JUDICIAL MEMBER SD/ SHAMIM YAHYA ACCOUNTANT MEMBER MUMBAI, DATED: 22.05.2019 4 NIRMAL BANG SECURITIES PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI