JCIT 25(2), MUMBAI V. RAJIV R AHUJA, MUMBAI

ITA 227/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70928 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 10-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Section: 143(3); 133(6)

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO. 227/M/2012 ( / ASSESSMENT YEAR : 2007 - 20 08 ) JCIT - 25(2), BLDG. NO .C - 11, 1 ST FLOOR, R.NO.108, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051. / VS. R AJIV R AHUJA, 301, DORA ROSE, I.C. COLONY, BORIVALI (W), MUMBAI 400 092. ./ PAN : AADPA 6445 J ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI C.G.K. NAIR, DR / RESPONDENT BY : NONE / DATE OF HEARING : 12 .8.2013 / DATE OF PRONOUNCEMENT : 4.9 . 2013 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 10.1.2012 IS AGAINST THE ORDER OF CIT (A) - 35, MUMBAI DATED 28.10.2011 FOR THE ASSESSMENT YEAR 2007 - 2008. 2. IN THIS APPEAL, REVENUE FILED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DIFFERENCE IN CONTRACT RECEIPTS AMOUNTING TO RS. 9,00,000/ - AND RS. 2,89,804/ - IN THE CASE OF M/S. R AJ LAND END HOTEL & M/S. NEI PROPERTIES LIMITED WITHOUT APPRECIATING THE FACT THAT THE PARTIES HAVE CATEGORICALLY SUBMITTED THAT THE PAYMENTS WERE ACCRUED TO THE ASSESSEE IN THE FY 2006 - 07. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, T HE LD CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DIFFERENCE IN CONTRACT RECEIPTS AMOUNTING TO RS. 9,00,000/ - AND RS. 2,89,804/ - IN THE CASE OF M/S. TAJ LAND END HOTEL & M/S. NEI PROPERTIES LIMITED WITHOUT APPRECIATING THE FACT THAT THE AMOUNTS RECEIVED BY THE ASSESSEE WERE TOWARDS OF FULL & FINAL PAYMENTS FROM THESE PARTIES. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT (A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. AT THE OUTSET, IT IS RELEVANT TO MENT ION THAT THERE IS NONE TO REPRESENT THE ASSESSEE BEFORE THE TRIBUNAL . ON OBSERVING THAT THE NOTI CE OF HEARING WAS ALREADY 2 ISSUED, WE FIND THAT THE APPEAL REQUIRED TO BE HEARD WITH THE ASSISTANCE OF THE LD DR WHO REPRESENTS THE REVENUE . 4. BRIEFLY STATE D, RELEVANT FACTS ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND FILED THE RETURN OF INCOME ADMITTING THE TOTAL INCOME OF RS. 2,85,40,3 00/ - . ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AND THE ASSESSED INCOME OF THE ASSESSEE WAS DETERMINED AT RS. 3,08,24,650/ - . AO MADE ADDITIONS OF RS. 9 LACS, RS. 2,89,804 / - AND RS. 6,80,454/ - INVOLVING NEI PROPERTIES LTD, TAJ LANDS AND RELIANCE INFOCOMM INFRASTRUCTURE P. LTD R ESPECTIVELY. THE REASONS FOR MAKING ADDITIONS ARE GIVEN IN PARA 3 OF THE IMPUGNED ORDER WHICH ARE AS UNDER: 3..THE AO ISSUED ENQUIRY LETTERS U/S 133(6) OF THE ACT TO THE ABOVE PARTIES AND FOUND THAT M/S. NEI PROPERTIES LTD PAID RS. 9 L A CS TO THE APPELLANT DURING THIS YEAR AS FULL AND FINAL SETTLEMENT, WHICH WAS NOT O FFERED AS INCOME BY THE APPELLANT. AS PER LETTER RECEIVED FROM M/S. TAJ LANDS A SUM OF RS. 2,89,804/ - WAS PAID TO THE APPELLANT BUT THE APPELLANT DID NOT ADMIT THE SAME AS INCOME DURING THIS YEAR. HE FURTHER NOTICED THAT M/S. RELIANCE INFOCOMM INFRASTRUC TURE P. LTD INFORMED THE AO THAT A SUM OF RS. 16,96,251/ - WAS PAID TO THE APPELLANT WHEREAS THE APPELLANT CLAIMED THAT ONLY A SUM OF RS. 9,45,659/ - WAS RECEIVED AFTER DEDUCTION OF THE TAX AT SOURCE. THE APPELLANT CONTENDED BEFORE THE AO THAT RS. 9 LACS RE CEIVED FROM M/S. NEI PROPERTIES LTD WAS ACCOUNTED AS MOBILIZATION ADVANCE AND TREATED AS INCOME IN THE NEXT YEAR. THE AO DID NOT ACCEPT THE CLAIM ON THE AGROUND THAT THE PAYMENT WAS MADE AS FULL AND FINAL SETTLEMENT. M/S. TAJ LANDS SUBSEQUENTLY CLARIFIED THAT THE CHEQUE WAS NOT PRESENTED BY THE APPELLANT AND ISSUED A FRESH CHEQUE DATED 27.4.2009 AND, THEREFORE, THE AO BROUGHT TO TAX RS. 2,89,804/ - .. 4.1. AGGRIEVED WITH THE ABOVE, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORIT Y. 5. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE MADE WRITTEN SUBMISSIONS WITH DETAILS. THE SAME WERE REMANDED TO THE AO FOR HIS COMMENTS . DURING THE REMAND PROCEEDINGS, THE AO CONDUCTED ENQUIRES WITH THE SAID PARTIES AND THE FO LLOWING ARE THE REPLIES FROM M/S. NEI PROPERTIES LTD AND M/S. TAJ LANDS . THE SAME READ AS FOLLOWS. (I) IN THE CASE OF NEI PROPERTIES LIMITED, IT WAS STATED BY THEM THAT THE AMOUNT OF RS. 9 LACS WAS PAID TO THE ASSESSEE ON 4.5.2006 AS FINAL SETTLEMENT OF THEIR CLAIM OF THE WORK DONE DURING THE PERIOD PRIOR TO THE DATE OF PAYMENT AND THE SAME WAS NOT AN ADVANCE FOR THE WORK YET TO BE DONE IN FY 2007 - 2008. (II) AS PER THE FINAL CERTIFICATE DATED 7.2.2006 FURNISHED BY M/S. TAJ LAND END HOTEL, IT IS NOTICED TH AT THE PARTY HAD PAID RS. 19,11,542/ - & RS. 3,26,408/ - TO THE ASSESSEE ON 11.6.2005 & 31 . 7.2005 RESPECTIVELY. THE FINAL BILL PAYABLE BY THE PA R TY TO THE ASSESSEE AS ON 7.2.2006 WAS AT RS. 3,09,104/ - . THEREFORE, IT WAS CLEAR THAT 3 THE AMOUNT OF RS. 3,09,10 4/ - WAS DUE TO THE ASSESSEE IN THE FY 2005 - 06 RELEVANT TO AY 2006 - 07 ONLY. 6. IN RESPONSE, I T IS THE SUBMISSION OF THE ASSESSEE THAT THESE AMOUNTS WERE OFFERED FOR TAX IN THE SUBSEQUENT AYS WHICH IS AN UNDISPUTED FACT AND TAXING THE SAME IN THIS YEAR U NDER CONSIDERATION AMOUNTS TO DOUBLE TAXATION. CIT (A) CONSIDERED THE SAME AND GAVE A FINDING THAT THESE AMOUNTS WERE TAXED TWICE WHICH IS NOT ALLOWABLE UNDER THE LAW. PARA 8 OF THE IMPUGNED ORDER IS RELEVANT IN THIS REGARD. AGGRIEVED, REVENUE IS IN APPEA L BEFORE THE TRIBUNAL WITH THE ABOVE MENTIONED GROUNDS. 7. DURING THE PROCEEDINGS BEFORE US, LD DR RELIED ON THE ORDER OF THE AO. 8. THERE WAS NON E APPEARED TO REPRESENT ON BEHALF OF THE ASSESSEE. 9. WE HAVE HEARD THE LD DR AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES IN GENERAL AND PARA 8 OF THE CIT (A)S ORDER IN PARTICULAR AND THE SAME READS AS UNDER: 8. I HAVE CONSIDERED THE ASSESSMENT ORDER, REMAND REPORT OF THE AO AND THE SUBMISSIONS OF THE APPELLANT. GOING BY THE COMPLETE ANALYSIS OF TH E FACTS IN TAJ LANDS AND NEI PROPERTIES LTD, IT MAY BE SEEN THAT THE AMOUNT OF RS. 9 LACS AND RS. 2,89,804/ - HAVE BEEN TAKEN INTO CONSIDERATION BY THE APPELLANT AND, THEREFORE, THE SAME AMOUNT SHOULD NOT BE ALLOWED TO BE TAXED TWICE. ACCORDINGLY, RS. 9 LA CS AND RS. 2,89,804/ - IS DELETED. 10. FROM THE ABOVE, IT IS EVIDENT THAT THE CIT (A) GRANTED RELIEF ON FINDING THAT THE IMPUGNED INCOME IS ACTUALLY ACCRUED, RECOGNIZED AND TAXED, BASED ON THE FINAL BILL S , IN EARLIER OR SUBSEQUENT AYS. THEREFORE , TAXING THE SAME AMOUNT IN THE YEAR UNDER CONSIDERATION AMOUNTS TO REPEATED TAXATION OF THE SAME TWICE, WHICH IS NOT PERMITTED IN LAW. CONSIDERING THE SAME, WE ARE OF THE OPINION THAT THE ORDER OF THE CIT (A) IS REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE . ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED . 11. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . 4 ORDER PRONOUNCED IN THE OPEN COURT O N 4 TH SEPTEMBER , 2013. SD/ - SD/ - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 4.9 .2013 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI