ACIT Non Corporate Range 13 , CHENNAI V. Kellen Construction, CHENNAI

ITA 1866/CHNY/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9339 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 04-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MRS R SRIDEVI
• Keywords: TDS; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . . , . , BEFORE SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.1866/CHNY/2018 ! ! /ASSESSMENT YEAR: 2014-15 THE ASST. COMMISSIONER- OF INCOME TAX, NON-CORPORATE CIRCLE-13, CHENNAI-13. VS. M/S.KELLEN CONSTRUCTION, PLOT NO.03, FLAT NO.S1, SAI NIVAS, 2 ND CROSS STREET, BHARATH NAGAR, MADIPAKKAM, CHENNAI-78. [PAN: AAKFK 6579 L] ( $ /APPELLANT) ( %&$ /RESPONDENT) DEPARTMENT BY : MR. GURUBASHYAM, JCIT ASSESSEE BY : MRS.R.SRIDEVI, CA ( /DATE OF HEARING : 26.06.2019 ( /DT. OF PRONOUNCEMENT : 27.06.2019 / O R D E R PER SHRI S. JAYARAMAN, ACCOUNTANT MEMBER : THE REVENUE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-14, CHENNAI, IN ITA NO.211/ CIT(A)-14/2016-17 DATED 28.02.2018 FOR THE AY 2014-15. 2. WHILE MAKING THE ASSESSMENT FOR THE AY 2014-15, THE ASSESSEE CLAIMED RS.7,25,25,342/- UNDER VARIOUS HEADS. IN OR DER TO CONSIDER THE CLAIM, THE AO REQUESTED THE ASSESSEE TO FURNISH THE PROOF. THE ASSESSEE SIMPLY FILED A LEDGER EXTRACT, FROM WHICH, THE AO F OUND, INTER ALIA, THAT THE ITA NO.1866/CHNY/2018 :- 2 -: ASSESSEE HAS NOT DEDUCTED TDS. FURTHER ON EXAMINATI ON, THE AO CONSIDERED THAT THE ASSESSEE HAS INFLATED THE EXPEN DITURE AND HENCE, ADDED TO THE INCOME. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS) AND THE LD.CIT(A) ALLOWED THE APPEAL. 3. AGGRIEVED AGAINST THAT ORDER, THE REVENUE FILED THIS APPEAL WITH THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO FACTS AND CIRCUMSTANCES OF THE CASE, 2.1 THE LEARNED CIT(A) IS NOT CORRECT IN DELETING THE DISALLOWANCE OF RS.7,25,25,342/- MADE BY THE ASSESSING OFFICER. 2.2 THE LEARNED CIT(A) ERRED IN DECIDING THE MATTER OF DISALLOWANCE OF RS.7,25,25,342/- WITHOUT GIVING OPPORTUNITIES TO THE ASSESSING OFFIC ER BY REMANDING THE MATTER UNDER RULE 46A OF IT RULES, 1962. 3.1. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THE DIRECT EXPENSES UNDER THE HEAD-MATERIAL, LABOUR AND DIRECT OVERHEADS WERE ACT UALLY CLAIMED BY ASSESSEE AS EXPENSES IN THE PROFIT AND LOSS ACCOUNT. 3.2 THE LEARNED CIT(A) ERRED IN CONCLUDING GROSS REC EIPT RECEIVED BY THE ASSESSEE AT RS.1.34 CRORE AS AGAINST THE GROSS RECEIPTS OF RS.7 .25 CRORE SHOWN IN THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE, WHICH WAS ADOPTED BY THE A SSESSING OFFICER FOR THE ADDITION. 4. THE LEARNED CIT(A) HAS ERRED IN CONCLUDING THAT THERE IS NO TDS OBLIGATION ON THE PART OF THE ASSESSEE AS THE ASSESSEE DID NOT RECEIVE THE WHOLE CONTRACT AMOUNT. 5. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEARNED CIT(A) MAY BE SET ASID E AND THAT OF THE ASSESSING OFFICER RESTORED. 4. THE LD.DR PLEADED THAT THE ASSESSEE FILED LETTER S OF INTENTS DATED 12.04.2013 & 05.08.2013, COPIES OF WORK ORDER, COPI ES OF INVOICE RAISED BY THE ASSESSEE, BILL FINALLY SETTLED BY THE CONTRA CTOR-IVRCL AND COPY OF THE BANK STATEMENT, ETC., BEFORE THE LD.CIT(A) AND THE LD.CIT(A) HAS NOT GIVEN AN OPPORTUNITY TO THE AO BY REMANDING THE MA TTER UNDER RULE 46A OF THE IT RULES AND HENCE, THE ORDER OF THE LD.CIT( A) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. ITA NO.1866/CHNY/2018 :- 3 -: 5. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIALS. SINCE THE ASSESSEE FILED FRESH MATERIAL S BEFORE THE LD.CIT(A) AND THE AO WAS NOT GIVEN AN OPPORTUNITY BY REMANDIN G THE MATTER UNDER RULE 46A OF THE IT RULES, 1962, WE SET ASIDE THE OR DER OF THE LD.CIT(A) AND REMIT THE ISSUES BACK TO THE AO FOR A FRESH EXA MINATION. THE ASSESSEE SHALL LAY ALL MATERIAL IN SUPPORT OF ITS C ONTENTION BEFORE THE AO AND SHALL COMPLY WITH THE REQUIREMENTS OF AO IN ACC ORDANCE WITH LAW. THE AO IS FREE TO CONDUCT APPROPRIATE ENQUIRY, AS DEEMED FIT, HOWEVER, HE SHALL FURNISH ADEQUATE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE AGAINST THE MATERIAL, IF ANY, THAT IS TO BE USED AG AINST IT AND THEN SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THUS , THE APPEAL FILED BY THE REVENUE IS ALLOWED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2019, IN CHENNAI. SD/- SD/- ( - . . . / ) (DUVVURU R.L. REDDY) /JUDICIAL MEMBER ( . ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, 1 /DATED: 27 TH JUNE, 2019. TLN ( % 23 43 /COPY TO: 1. $ /APPELLANT 4. 5 /CIT 2. %&$ /RESPONDENT 5. 3 % /DR 3. 5 ( ) /CIT(A) 6. ! /GF