V V Construction, Pune V. Income-tax Officer, Pune

ITA 1613/PUN/2011

• Counselvise Citation: 161324514 RSA 2011
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y S BHASKAR
• Keywords: Additional evidence
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 1613/PN/2011 (ASSESSMENT YEAR 2006-07) V.V. CONSTRUCTIONS POST : NARAYANGAON, KULKARNI COLONY, TAL : JUNNAR, DIST : PUNE-410504 PAN NO.AALFM 3554A .. APPELLANT VS. ITO, WARD-3(1), PUNE .. RESPONDENT APPELLANT BY : SHRI KISHOR PHADKE RESPONDENT BY : SHRI Y.S. BHASKAR DATE OF HEARING : 10-07-2013 DATE OF PRONOUNCEMENT : 15-07-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 05-10-2011 OF THE CIT(A)-V, PUNE RELATING TO ASSESS MENT YEAR 2006-07. 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND IN FACTS IN REJECTING THE BOOKS OF ACCOUNTS OF THE APPELLANT. 2. THE LD. ASSESSING OFFICER ERRED IN LAW AND IN FA CTS IN ESTIMATING THE PROFITS OF THE ASSESSEE FIRM AMOUNTI NG TO RS.23,74,642/- BEING 8% OF GROSS RECEIPTS OF THE AP PELLANT. 3. THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND I N FACTS IN MAKING AN ADDITION OF RS.50,37,633/- UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961. 4. THE ASSESSING OFFICER WAS WRONG IN INITIATING TH E PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT, 19 61. 2 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE DID NOT PRESS THE GROUND OF APPEAL NO. 1 AND 2 FOR WHICH TH E LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION. ACCORDINGLY, THE ABOVE GROUNDS ARE DISMISSED. 4. GROUNDS OF APPEAL NO.4 BEING PREMATURE AT THIS J UNCTURE IS DISMISSED. 5. SO FAR AS GROUNDS OF APPEAL NO.3 IS CONCERNED TH E FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS A PARTNERSHIP FIR M ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE ASSESSING OFFICER NOTED FROM THE DETAILS FURNISHED BY THE ASSESSEE THAT ALTHOUGH THE ASSESSEE HAS PAID TRANSPORTATION CHARG ES OF RS.8,53,344/-, AN AMOUNT OF RS.8,23,344/- HAS BEEN PAID WITHOUT D EDUCTION OF TDS. SIMILARLY, TDS HAS NOT BEEN MADE FROM THE PAYMENTS MADE TO THE SUB- CONTRACTORS AMOUNTING TO RS.42,14,289/-. INVOKING THE PROVISIONS OF SECTION 40(A)(IA) THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS.50,37,633/- (I.E. RS.42,14,289 + RS.8,23,344). 6. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER BY HOLDING AS UNDER : 10. THUS, THE APPELLANT HAS CLAIMED THAT IN RESPEC T OF THE PAYMENT TO SUB CONTRACTORS AMOUNTING TO RS.42,14,28 9/-, TDS TO THE EXTENT OF RS.46,989/- WAS MADE AND PAID TO THE GOVERNMENT ACCOUNT. NO EXPLANATION WAS FURNISHED IN RESPECT O F THE PAYMENT MADE TO TRANSPORTERS. VIDE ORDER SHEET ENTRY DATED 23-09-2011, THE APPELLANT WAS ASKED TO FURNISH THE COPY OF TDS CHALLANS AND THE TDS CERTIFICATES ISSUED TO THE PARTICULAR SUB-C ONTRACTORS TO ASCERTAIN THAT THE CLAIMED AMOUNT OF TDS MADE AND P AID TO THE GOVERNMENT ACCOUNT WERE INDEED RELATED TO THE PARTI CULAR SUB- CONTRACT PAYMENTS. THIS WAS BECAUSE THE ASSESSING OFFICER HAS SPECIFICALLY OBSERVED IN THE ASSESSMENT ORDER THAT FROM THE BANK 3 A/C. IT WAS SEEN THAT THE ASSESSEE HAS MADE PAYMEN T TO THE SUB CONTRACTORS WITHOUT DEDUCTING THE TDS. HOWEVER, TH E APPELLANT VIDE LETTER FILED ON 28-09-2011 SUBMITTED A CERTIFI CATE FROM JANATA SAHAKARI BANK LTD. PUNE THAT THE APPELLANT HAD ISSU ED A CHEQUE DATED 31-12-2005 IN FAVOUR OF BANK OF INDIA, JUNNAR BRANCH, A/C. INCOME TAX OF RS.46,989/- WHICH WAS CLEARED ON 02-0 1-2006. APART FROM THIS BANK CERTIFICATE, NOTHING ELSE COUL D BE FURNISHED AND THE SPECIFIC REQUIREMENT VIDE ORDER SHEET DATED 23-09-2011 FOR FURNISHING OF THE PARTICULAR TDS CERTIFICATES I SSUED IN FAVOUR OF THE SUB-CONTRACTORS AND COPY OF THE TDS CHALLANS WH EN THE AMOUNT WAS PAID, COULD NOT BE FURNISHED BY THE APP ELLANT TILL THE DATE OF PASSING OF THIS ORDER. IN THE CIRCUMSTANCES , I AM UNABLE TO ACCEPT THE APPELLANTS CLAIM THAT THE TDS AS REQUIR ED BY SECTION 194C OF THE ACT WAS MADE AND PAID INTO THE GOVERNME NT ACCOUNT FOR THE PAYMENT TO THE SUB-CONTRACTORS AS REQUIRED UNDER THE PROVISIONS OF THE ACT. MOREOVER, NO EXPLANATION HA S BEEN FURNISHED FOR THE OTHER VIOLATION FOR TDS PROVISION S IN RESPECT OF PAYMENT MADE TO THE TRANSPORTERS. CONSIDERING THE SAME, THE APPELLANTS CONTENTION IS HELD TO BE UNTENABLE AND THE DISALLOWANCE U/S.40(A)(IA) MADE BY THE ASSESSING OF FICER IS HEREBY UPHELD. GROUND NO.3 IS ACCORDINGLY DISMISSED. 6.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET R EFERRED TO THE ADDITIONAL EVIDENCE FILED AT PAPER BOOK PAGE NO. 20 WHICH IS THE CHALLAN STATUS FOR TAX PAYER OBTAINED FROM THE WE BSITE OF THE NSDL. REFERRING TO THE SAME HE SUBMITTED THAT THE SAME EV IDENCES PAYMENT OF THE TDS DUES. SINCE THE ASSESSEE WAS NOT IN RECEIP T OF THE SAME WHEN RELEVANT PROCEEDINGS FOR A.Y. 2006-07 WERE GOING ON , THE SAME COULD NOT BE SPECIFICALLY PRODUCED BEFORE THE ASSESSING O FFICER/CIT(A). SINCE THE ABOVE DOCUMENT IS AN IMPORTANT EVIDENCE FOR THE PRESENT PROCEEDINGS, THEREFORE, IN THE INTEREST OF JUSTICE, THE SAME SHOULD BE ADMITTED AND THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE THE ISSUE AF RESH. 4 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT H E HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 9. AFTER HEARING BOTH THE SIDES, THE ADDITIONAL EVI DENCE FILED BY THE ASSESSEE IN THE SHAPE OF CHALLAN STATUS FOR TAX PA YER OBTAINED FROM THE TAX INFORMATION NETWORK OF THE INCOME TAX DEPARTMEN T IS ADMITTED. SINCE THIS ADDITIONAL EVIDENCE GOES TO THE ROOT OF THE MATTER FOR DECIDING THE ISSUE RELATING TO DISALLOWANCE U/S.40(A)(IA), T HEREFORE, WE, IN THE INTEREST OF JUSTICE, DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DEC IDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUND OF APPEAL NO.3 IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 15 TH DAY OF JULY 2013 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 15 TH JULY 2013 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-V, PUNE 4. CIT-V, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE