ACIT, Circle - 31, Kolkata, Kolkata V. Gopal Mahapatra, Kolkata

ITA 2016/KOL/2010

• Counselvise Citation: 201623514 RSA 2010
• Duration Of Justice: 5 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 08-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMITABH BHATTACHARYA
• Assessee Lawyers: V N PUROHIT
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA (BEFORE SHRI M. BALAGANESH, A.M. & SHRI S.S.VISWANE THRA RAVI, J.M.) ITA NO. 2016/KOL/2010 : ASSTT. YEAR : 2004-20 05 ACIT, CIRCLE-31 KOLKATA VS GOPAL MAHAPATRA (PAN: AHCPM 8303R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMITABH BHATTACHARYA, JCIT RESPONDENT BY : SHRI V.N.PUROH IT, FCA DATE OF HEARING : 12.10.2015 DATE OF PRONOUNCEMENT : 04-12-2015 ORDER PER SHRI S.S.VISWANETHRA RAVI, J.M . THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 26.08.2010 PASSED BY THE CIT(APPEALS)-XIX, KOLKATA IN APPEAL NO.125/CIT(A)-XIX/ACIT, CIR-31/KOL/09-10 FOR THE AS SESSMENT YEAR 2004-05 FRAMED UNDER SECTION 143(3) OF THE I.T.ACT. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS T HAT WHETHER THE CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE T OWARDS DIFFERENCE IN TURNOVER FIGURE BETWEEN THE TDS CERTIFICATE AND ONE DISCLOSED BY THE ASSESSEE. 3. DURING THE RE-ASSESSMENT PROCEEDINGS, THE ASSESS EE HAS EXPLAINED IN DETAIL AND FILED RECONCILIATION OF DIFFERENCE BY WAY OF A WRITTEN SUBMISSION DATED 21.12.2009, WHEREIN HE STATED THAT DIFFERENCE BETWEEN THE TURNOVER IN TRADING ACCOUNT AND THE TURNOVER AS PER TDS CERTIFICATE IS ONLY FOR THE REASON THAT CONTRACTING PARTY PAID THE CONTRACTUAL AMOUNT BY DEDUCTING THE VALUE OF THE CEMENT AND STEEL AND THE NET VALUE AFTER SUCH DEDUCTION IS SHOWN IN THE TRADING ACCOUNT. NOT SATISFIED WITH THE 2 ITA NO.2016/KOL/2010 G OPAL MAHAPATRA ASSESSMENT YEAR: 2004-05 EXPLANATION, THE AO ADDED THE DIFFERENCE OF AMOUNT BETWEEN TRADING ACCOUNT AND AMOUNT AS PER THE TDS CERTIFICATE TO TH E TUNE OF RS.2,17,43,569/- TREATING THE SAME AS ASSESSEES UN DISCLOSED INCOME. 4. THE ASSESSEE CONTENDED BEFORE THE LD. CIT(A) THA T THE DIFFERENCE IN TURNOVER AROSE IN THE TWO CONCERNS OF THE ASSESS EE I.E., M/S. ONLINE BUILDERS AND M/S. NEW ONLINE BUILDERS. THE AMOUNTS RECEIVED WERE CREDITED INTO THE P&L ACCOUNT OF THE ABOVE CONCERNS UNDER THE HEADS CONTRACT PRICE AND LABOUR CHARGES. THE AO ONLY CONSIDERED THE TURNOVER ON ACCOUNT OF LABOUR CHARGES AND COMPLETEL Y IGNORED THE AMOUNT UNDER THE HEAD CONTRACT PRICE. IT IS ALSO STATED THAT IT IS A COMMON PRACTICE THAT THE CONTRACTORS WOULD ISSUE TH E RUNNING BILLS AND AGAINST SUCH BILLS THE CONTRACTORS RECEIVE PART PAY MENT, ADVANCES, ETC. ON WHICH TAX IS DEDUCTED BY THE CONTRACTEES. 5. BEFORE US, THE DR SUBMITTED THAT IT IS A CASE OF SHORT ASSESSMENT BY SHOWING LESS AMOUNT. THE ASSESSEE DID NOT PRODUC E SUFFICIENT DOCUMENTS IN SUPPORT OF DIFFERENCE BETWEEN TURNOVER AS PER P&L ACCOUNT AND TURNOVER AS PER TDS CERTIFICATE. DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS, THE ASSESSEE RAISED A NEW VE RSION BY SHOWING THAT THE AO ONLY CONSIDERED THE AMOUNT CREDITED TO THE P&L ACCOUNT UNDER ONE HEAD I.E. LABOUR CHARGES AND NOT CONSID ERED THE TURNOVER UNDER OTHER HEAD CONTRACT PRICE. THE ASSESSEE SU BMITTED THAT BILLS, ETC. SUBMITTED BEFORE THE CIT(A) BELONGING TO ONE O F THE CONTRACTING PARTIES I.E. M/S. VICTORIA GREENS, BASING ON WHICH THE LD. CIT(A) OBSERVED DURING THE ASSESSMENT YEAR UNDER APPEAL. T HE TURNOVER AS PER THE TDS CERTIFICATE WAS MORE AND TURNOVER AS PER P& L A/C. WAS LESS WHILE THE PRECEDING YEAR IT WAS REVERSED I.E. THE T URNOVER AS PER P&L A/C. WAS MORE THAN THE TURNOVER AS PER TDS CERTIFIC ATES. THE LD. DR SUBMITTED THAT THE LD. CIT(A) HAS NOT AFFORDED ANY OPPORTUNITY TO THE 3 ITA NO.2016/KOL/2010 G OPAL MAHAPATRA ASSESSMENT YEAR: 2004-05 AO MUCH LESS BY WAY OF A REMAND REPORT AND PRAYED F OR RESTORATION OF FILE TO THE AO FOR DETAILED ENQUIRY. 5.1 IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE CONT ENDED THAT THE ASSESSEE SUBMITTED ADDITIONAL EXPLANATION ALONG WIT H RECONCILIATION STATEMENT DATED 21.12.2009 TO THE AO BUT HOWEVER TH E AO REJECTED THE SAME SUMMARILY. THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED NO OBJECTION ACROSS THE BAR IN RESTORING THE FILE TO T HE AO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE DEEM IT FIT AND APPROPRIATE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTI CE AND FAIR PLAY, TO SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFIC ER TO VERIFY THE SUBMISSION AND RECONCILIATION STATEMENT OF TURNOVER AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE I S ALSO AT LIBERTY TO FILE ADDITIONAL DOCUMENTS AND EVIDENCE IN SUPPORT O F HIS CONTENTION. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DECEMBER, 2015. SD/- SD/- ( M. BALAGANESH) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04/12/2015 TALUKDAR/SR.PS 4 ITA NO.2016/KOL/2010 G OPAL MAHAPATRA ASSESSMENT YEAR: 2004-05 COPY OF ORDER FORWARDED TO: 1 GOPAL MAHAPATRA, 53B TOWNSHEND ROAD, KOLKATA 700 025 2 ACIT, CIRCLE-31 , KOLKATA 3 THE CIT(A), 4 5 CIT, D.R. TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA