ITO, CHENNAI V. Shri P.Dasarathan, CHENNAI

ITA 213/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64191 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K RAJAGOPAL
• Assessee Lawyers: B SURESH
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI. BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NO. 213/MDS/2012 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, BUSINESS WARD III (3), CHENNAI 34. VS. SHRI P. DASARATHAN, PROP. M/S. GOMATHI CONSTRUCTION, FLAT NO.2, NO. 132, AL BLOCK, 7 TH MAIN ROAD, ANNA NAGAR, CHENNAI 40. [PAN: ADTPD3172G] (APPELLANT) (RESPONDENT) A PPELLANT BY : SHRI K. RAJAGOPAL, JCIT RESPONDENT BY : SHRI B. SURESH, C.A. DATE OF HEARING : 23.08.2012 DATE OF PRONOUNCEMENT : 23.08.2012 ORDER PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) VIII, CHENNAI DATED 24.11.2011 IN ITA NO. 92/10-11/(A)-VIII FOR THE ASSESSMENT YEAR 2 008-09. SHRI K.RAJAGOPAL, JCIT REPRESENTED ON BEHALF OF THE REVE NUE AND SHRI B. SURESH, C.A. REPRESENTED ON BEHALF OF THE ASSESSEE. 2. THE GRIEVANCE IN THE GROUNDS OF APPEAL OF THE D EPARTMENT IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF ` .27,49,050/- BEING THE DIFFERENCE IN CONTRACT RECEI PTS RECEIVED BY THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.2 22 21 11 13 33 3/M/ /M/ /M/ /M/12 1212 12 2 ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT THE ASSESSEE IS NOT ENTITLED TO CLAIM CREDIT F OR TDS ON SUCH AMOUNT, WHICH WAS ASSESSED AS INCOME IN SUBSEQUENT ASSESSME NT YEAR. 3. FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CI VIL CONTRACTOR FILED HIS RETURN OF INCOME ON 31.03.2009 ADMITTING INCOME OF ` .1,74,590/- FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSMENT WAS COMPLET ED ON 16.12.2010 UNDER SECTION 143(3) OF THE ACT DETERMINING THE INC OME AT ` .29,23,640/-. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFI CER MADE AN ADDITION OF ` .27,49,050/- ON THE GROUND THAT THERE IS DIFFERENCE IN CONTRACT RECEIPTS SHOWN BY THE ASSESSEE IN THE BOOKS OF ACCOUNTS AND THE TDS CERTIFICATE ISSUED BY M/S. SRI SAI BABA BUILDERS. 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) EXAMINED THE ISSUE IN DETAIL AND AFTER CONSIDERING THE SUBMISSIO NS OF THE ASSESSEE CAME TO KNOW THAT THE SAID DIFFERENCE OF ` .27,49,050/- IS ONLY AN ADVANCE RECEIVED BY THE ASSESSEE AND THIS AMOUNT WAS OFFERED TO TAX IN THE ASSESSMENT YEAR 2009-10 ON COMPLETION OF THE WORK AND THEREFORE DEL ETED THE ADDITION MADE BY THE ASSESSING OFFICER. 5. THE REVENUE IS IN APPEAL BEFORE US CONTENDING T HAT THE COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFI ED IN ALLOWING CREDIT FOR TDS FOR THE SAID AMOUNT FOR THE ASSESSMENT YEAR 200 8-09 THOUGH THE SAID AMOUNT IS ASSESSED TO TAX IN THE ASSESSMENT YEAR 20 09-10. THE COUNSEL FOR I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.2 22 21 11 13 33 3/M/ /M/ /M/ /M/12 1212 12 3 THE REVENUE SUPPORTED THE ORDER OF THE ASSESSING OF FICER IN MAKING THE ADDITION. 6. THE COUNSEL FOR THE ASSESSEE RELIED ON THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS). 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD. IN SO FAR AS THE ADDITION OF ` .27,49,050/- IS CONCERNED, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THIS AMOUNT WAS ADDE D AS INCOME OF THE ASSESSEE IN SPITE OF THE FACT THAT IT WAS SHOWN AS PART OF ADVANCE CONTRACT AMOUNT RECEIVED AND REFLECTED IN THE BOOKS OF ACCOU NTS. HE ALSO FOUND THAT THE ASSESSING OFFICER DID NOT CONSIDER THE RELEVANT EXPENDITURE, WHICH WERE SHOWN UNDER WORK IN PROGRESS AT THE END OF THE FI NANCIAL YEAR. IT IS STATED THAT THE TDS AMOUNT HAS BEEN DEDUCTED FROM THE ADVA NCE PAYMENT OF CONTRACT AMOUNT AS PER SECTION 194C(2) OF THE ACT. THE ENTIRE AMOUNT OF ` .56,47,660/- SHOWN AS ADVANCE PAYMENT TO THE ASSESS EE HAS BEEN CARRIED FORWARD TO THE SUBSEQUENT YEAR AS PER THE CLOSING W ORK IN PROGRESS SHOWN AT ` .1,97,65,889/- AND CARRIED FORWARD TO NEXT YEAR AND OFFERED THE SAME TO TAX IN THE ASSESSMENT YEAR 2009-10. THE ADVANCE CONTRAC T RECEIPT OF ` .56,47,360/- HAS BEEN SHOWN AS CLOSING BALANCE AS O N 31.03.2008 AND ALSO FORM PART OF WORK IN PROGRESS ALONG WITH MATERIAL R ECEIVED FROM THE CREDITOR TO THE EXTENT OF ` .1,41,18,529/-. THEREFORE, IT WAS CONTENDED THAT TH E ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ADDITI ON BY ARRIVING AT THE DIFFERENCE BETWEEN THE AMOUNTS SHOWN IN TDS CERTIFI CATE ISSUED BY M/S. SRI I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.2 22 21 11 13 33 3/M/ /M/ /M/ /M/12 1212 12 4 SAI BABA BUILDERS AND TOTAL CONTRACT WORK COMPLETED DURING THE YEAR AT ` .41,95,850/-. CONSIDERING ALL THESE SUBMISSIONS OF THE ASSESSEE, THE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE AD DITION HOLDING THAT THERE IS NO DIFFERENCE AS OBSERVED BY THE ASSESSING OFFICER AND IN FACT THIS AMOUNT HAS BEEN OFFERED AS INCOME IN THE ASSESSMENT YEAR 2009-10. IN THE CIRCUMSTANCES, WE SUSTAIN THE ORDER OF THE COMMISSI ONER OF INCOME TAX (APPEALS) IN DELETING THE ADDITION MADE BY THE ASSE SSING OFFICER. 8. HOWEVER, WITH REGARD TO ALLOWANCE OF CREDIT FOR TDS IS CONCERNED, WE DIRECT THE ASSESSING OFFICER TO GRANT CREDIT FOR TD S FOR THE INCOME OF ` .27,49,050/- DURING THE ASSESSMENT YEAR 2009-10 AS PER THE PROVISIONS OF SECTION 199 OF THE INCOME TAX ACT AS THE SAME WAS O FFERED TO TAX IN THE ASSESSMENT YEAR 2009-10. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON THURSDAY, THE 23 RD AUGUST, 2012 AT CHENNAI. SD/ - SD/ - (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER CHENNAI, DATED, THE 23.08.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.