ACIT, New Delhi V. M/s. Vishva Shanti Builders India Pvt. Ltd., New Delhi

ITA 2255/DEL/2012

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4192 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 31-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JHA
• Keywords: Additional evidence
• Section: 40A(3)

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH D, NEW DELHI BEFORE : SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 2255/DEL/2012 ASSESSMENT YEAR: 2008-09 ACIT, CIRCLE 17(1), NEW DELHI. (APPELLANT) VS. VISHWA SHANTI BUILDERS INDIA PVT. LTD., 88, DESH BANDHU APARTMENTS, KALKAJI, NEW DELHI. (PAN- AABCV 4420B) (RESPONDENT) REVENUE BY SHRI AMIT JHA, SR. DR ASSESSEE BY NONE ORDER PER L.P. SAHU, A.M. : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-19, NEW DELHI DATED 26.03.2012 FOR THE ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS : 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING AN ADDITION OF RS.3,27,485/ - MADE U/S 40A(3) AS THE ASSESSEE COULD NOT ADDUCE EVIDENCE OF PAYMENT OF TH IS SUM BY WAY OF A CROSSED CHEQUE/ BANK DRAFT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) ERRED IN ADMITTING FRESH EVIDENCE WITHOUT ANY VERIFICATION. DATE OF HEARING 08.08.2018 DATE OF PRONOUNCEMENT 1 7 .08.2018 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C!T(A) ERRED IN DELETING AN ADDITION OF RS.LL,50,000 /- EVEN THOUGH THE ASSESSEE HAD NOT ADDUCED EVIDENCE FOR PAYMENT OF TDS ON THIS AMOUNT OF RS.12,908/- IN FINANCIAL YEAR 2007-08. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING AN ADDITION OF RS.50,70,695 /- MADE ON ACCOUNT OF ADVANCE RECEIVED FROM DG MAP TREATING IT AS REVENUE RECEIPT WITHOUT APPRECIATING THE FACTS OF THE CASE BROUGHT OUT BY T HE AO IN HIS ASSESSMENT ORDER. 2. THE BRIEF FACTS OF THE CASE RE THAT THE ASSESSEE FILED RETURN OF INCOME ON 30.09.2008 DECLARING TOTAL INCOME OF RS.35,807/-. T HE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED TO THE A SSESSEE. IN THE ASSESSMENT PROCEEDINGS, THE AO OBSERVED FROM THE COPY OF ACCOU NT OF M/S. SYNTEX INDUSTRIES LTD. THAT THE ASSESSEE HAS MADE A CASH P AYMENT OF RS.3,27,485/- ON 31.03.2008 AGAINST PURCHASES MADE FROM THE SAID PAR TY. THE ASSESSEE SUBMITTED THAT THE RECIPIENT HAS BEEN PAID THROUGH DEMAND DRAFTS. THE ASSESSING OFFICER WAS NOT SATISFIED AND TREATED IT AS VIOLATION OF SECTION 40A(3) OF THE IT ACT. THEREFORE, HE MADE ADDITION OF RS.3, 27,485/-. 3. ON SCRUTINY OF ACCOUNTS, THE ASSESSING OFFICER F URTHER OBSERVED THAT WHILE PREPARING THE COMPUTATION OF INCOME, THE ASSE SSEE HAD REDUCED THE TAXABLE INCOME OF THE YEAR UNDER CONSIDERATION BY A SUM OF RS.11,50,000/- CLAIMED AS TDS OF CONTRACTOR OF EARLIER YEARS. THE TAX AUDITOR HAS NOT POINTED OUT THAT THERE WAS A PRE-EXISTED LIABILITY AS ON 01 .04.2007. THE ASSESSING OFFICER DID NOT ACCEPT THE SUBMISSIONS OF THE ASSES SEE AND ALSO OBSERVED THAT THE ASSESSEE WAS UNABLE TO FURNISH ANY DOCUMENTARY EVIDENCE TO PROVE THE NATURE OR ALLOWABILITY OF THE SAME. HE, THEREFORE, MADE THE ABOVE ADDITION. 3 4. FURTHER, THE AO ALSO NOTICED THAT THERE WAS A CR EDIT BALANCE OF RS.54,96,911/- AS ADVANCE FROM DG MAP FROM WHOM THE ASSESSEE RECEIVED CONTRACT RECEIPTS. THE ASSESSEE WAS REQUIRED TO EXP LAIN THE NATURE OF THE SAID RECEIPTS WITH SUPPORTING DOCUMENTS. THE ASSESSEE IN RESPONSE, REPLIED THAT THE SAID AMOUNT IS APPEARING AFTER COMPLETION OF PR OJECT OF DCI MAP. PAYMENT HAS BEEN RECEIVED AS ADVANCE FOR MAINTENANCE OF HAN DED OVER THE PROJECTS FROM 01.04.2008. THE AO CONTENDED THAT THE ASSESSEE HAD ADMITTED THAT THE PROJECT STOOD COMPLETED ON 31.03.2008 AND NOTHING W AS PENDING FOR COMPLETION. THEREFORE, THE CREDIT IS LIABLE TO BE T REATED AS INCOME. THE AO ALSO ISSUED NOTICE U/S. 133(6), REPLY OF WHICH WAS ALSO RECEIVED. AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND INFORMATION RECEIVED THROUGH REPLY TO NOTICE U/S. 133(6), THE AO FOUND THAT THE PROJECT STOOD COMPLET ED ON 31.03.2008. THEREFORE, HE MADE THE ADDITION ON ACCOUNT OF CREDI T BALANCE OFRS.50,70,695/- . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE A PPEALED BEFORE THE LD. CIT(A). HE ALSO FILED ADDITIONAL EVIDENCE. REMAND R EPORT WAS CALLED FROM THE ASSESSING OFFICER, WHICH WAS SUBMITTED BY THE AO ON 15.03.2012 AND REJOINDER THEREOF WAS GIVEN BY THE ASSESSEE ON 22.0 3.2012. AFTER CONSIDERING ALL THE ABOVE RECORDS, THE LD. CIT(A) DELETED ALL T HE ADDITIONS, AS NOTED ABOVE. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIB UNAL. 5. THE LD. DR RELIED ON THE ORDER OF THE AO AND SUB MITTED THAT THE ASSESSMENT ORDER IS A REASONED ORDER AND THE SAME S HOULD BE RESTORED. NONE IS PRESENT ON BEHALF OF THE ASSESSEE. 4 6. ON PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, WE FIND THAT THE LD. CIT(A) HAS DONE A GOOD REASONED ORDER, WHICH NEEDS NO INTERFERENCE. THE FINDINGS RECORDED BY HIM AFTER CONSIDERING THE SUBM ISSIONS OF THE ASSESSEE, REMAND REPORT AND ITS REJOINDER, READ AS UNDER : 5. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE AR IN THIS REGARD. THE AO NOTICED A PAYMENT OF RS. 3,27,485 TO SINTEX I NDUSTRIES LTD., AND THE NARRATION WAS CASH PAYMENT. THE AO INVOKED PROVISION S OF 40A(3) SINCE THERE WAS NO PROOF THAT THE PAYMENT WAS BY WAY OF C HEQUE OR DD -THOUGH THERE WAS SUCH CLAIM - AND DISALLOWED THE PAYMENT. IN THESE PROCEEDINGS, THE AR HAS BROUGHT ON RECORD THE CERTIFICATE DATED 28.12.2010 ISSUED BY PUNJAB NATIONAL BANK CONFIRMING THE PAYMENT IN FACT BY A BANKER CHEQUE. THIS DOCUMENT IS ADMITTED AS ADDITIONAL EVIDENCE. AF TER CAREFUL CONSIDERATION OF THE FACTS OF THE CASE, THERE IS NO CASE FOR INVOKING PROVISIONS OF 40A(3). 11. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND T HE DETAILED WRITTEN SUBMISSIONS FILED BY THE AR IN THIS REGARD. 12. IT IS SEEN FROM THE ASSESSMENT ORDER DATED 13.1 2.2011 FOR A.Y. 2006-07 THAT THERE WAS DISALLOWANCE OF RS.11,50,000 SINCE T HERE WAS NO DEDUCTION OF TDS. THE APPELLANT HAS CLAIMED THE SAME AS DEDUCTI ON SINCE TDS AMOUNTING TO RS.12,903 ( RS. 11,730 ON 19.11.2007 A ND RS.1,173 ON 23.11.07) WAS PAID IN THE F.Y. 2007-08 RELEVANT FOR THE IMPUGNED A.Y. 2008-09. THESE FACTS WERE BROUGHT TO THE NOTICE OF T HE AO BY ITS LETTER DATED 27.12.2010. AFTER CAREFUL CONSIDERATION OF TH E FACTS OF THE CASE, NO DISALLOWANCE IS CALLED FOR ON THIS COUNT. RELIEF: RS. 11,50,000/-. 15. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND T HE DETAILED WRITTEN SUBMISSIONS FILED BY THE AR IN THIS REGARD. 16. THE APPELLANT HAS SHOWN RECEIPT OF RS.54,96,911 FROM DG MAP TOWARDS MAINTENANCE OF THE PROJECT FROM 01.04.2008 WHICH WAS ALREADY COMPLETED. THE SAID RECEIPT WAS SHOWN AS LIABILITY I N THE BOOKS OF THE 5 ACCOUNT SINCE NO MAINTENANCE WORK HAS BEGUN. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO CONDUCTED ENQUIRIES AND PROJECT MANAGER VIDE LETTER DATED 22.12.2010 FURNISHED THE DETAILS. THE AR IN THE COURSE OF THESE PROCEEDINGS HAS BROUGHT ON RECORD THE LETTER DATED 28.12.2010 ISSUED BY PROJECT MANAGER CONFIRMING THE ADVANCE OF RS. 54,96,911 WHICH IS ADMITTED AS ADDITIONAL EVIDENCE. ON PERUSAL OF THE ORDER OF LD. CIT(A) IN RESPECT OF DELETION OF RS.3,27,485/- ADDED BY THE AO U/S. 40A(3), WE FIND THAT PNB HAS C ONFIRMED THAT THE SAID PAYMENT WAS MADE BY THE BANKERS CHEQUE AND THE BANK ERS CHEQUE IS ALSO DEEMED TO BE AN ACCOUNT PAYEE CHEQUE WHICH IS ENCAS HED BY CREDITING THE CHEQUE INTO THE ACCOUNT OF THE RECEIVER. THEREFORE, IT CANNOT BE SAID THAT THE PAYMENT HAS BEEN MADE THROUGH CASH. HENCE, SECTION 40A(3) IS NOT APPLICABLE. FURTHER IN RESPECT OF RS.11,50,000/-, THIS ISSUE WA S EXAMINED BY THE AO IN THE ASSESSMENT YEAR 2006-07 BY REOPENING THE CASE IN AS SESSMENT U/S. 143(3)/148 REGARDING THE PAYMENT MADE TO SURYA CONS TRUCTION. THEREFORE, THE ASSESSEE HAS RIGHTLY DEDUCTED IT FROM THE COMPU TATION OF INCOME. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER ON THIS SCORE. 7. IN RESPECT OF ADDITION OF RS.50,70,695/- ON ACCO UNT OF ADVANCE FOR THE MAINTENANCE OF PROJECT, THE ASSESSEE HAS SUBMITTED BEFORE THE LD. CIT(A) PERMISSION FROM DG MAP FOR START OF MAINTENANCE JOB AND THE IMPUGNED AMOUNT HAS BEEN CONSIDERED AS A TURNOVER IN F.Y. 20 10-11. THE ASSESSEE HAS ALSO ENCLOSED THE DOCUMENTARY EVIDENCE RELATING TO DVAT. THEREFORE, BEING SATISFIED WITH THE DOCUMENTARY EVIDENCES FILED, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION FOR WANT OF ANY CONTRARY MATER IAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH TH E ORDER OF THE LD. CIT(A) ON 6 THIS COUNT TOO. ACCORDINGLY, THE APPEAL OF THE REVE NUE IS FOUND TO HAVE NO MERITS AND DESERVES TO FAIL. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH AUGUST, 2018. SD/- SD/- (AMIT SHUKLA) (L.P. S AHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 TH AUGUST, 2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI