Ramesh Chander Sharma, New Delhi V. ITO, New Delhi

ITA 2580/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7392 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 20-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAMEER SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1)

Judgement Text

ITA NO. 2580 / DEL/ 201 2 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. N O. 2580/DEL/2012 A.Y . 2008 - 09 RAMESH CHANDER SHARMA, 86, RAVI NAGAR, TILAK NAGAR, NEW DELHI 110 018 (PAN: ABLPS6426N) VS . ITO, WARD - 38(2), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VED JAIN, CA DEPARTMENT BY : SH. SHAMEER SHARMA, SR. DR DATE OF HEARING : 20 - 10 - 2014 DATE OF ORDER : 29 - 10 - 2014 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSES S EE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - X XVIII , NEW DELHI DATED 19 . 3 .201 2 P ERTAINING TO ASSESSMENT YEAR 2008 - 09 . 2. THE GROUNDS RAISED READ AS UNDER: - ITA NO. 2580 / DEL/ 201 2 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH IN FACTS AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF AN AMOUNT OF RS. 16,00,000/ - MERELY ON THE GROUND THAT TAX HAS BEEN DEDUCTED AT SOURCE ON SUCH AMOUNT BY MISTAKE BY M/S BA G FILMS AND MEDIA LTD. (II) THAT THE ABOVE SAID ADDITION HAD BEEN MADE IGNORING THE FACT THAT THE DEDUCTOR ITSELF REALIZING ITS MISTAKE HAS REVISED ITS TDS RETURN. (III) THAT THE ABOVE SAID ADDITION HAS BEEN MADE REJECTING THE EXPLANATION OF THE ASSESSEE THAT THE SAID AMOUNT OF RS. 16,00,000/ - HAS NEITHER ACCRUED NOR RECEIVE D BY HIM. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND CIVIL ENGINEER BY PROFESSION ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND GIVING ENGINEE RING CONSULTANCY ON CONTRACT UNDER THE NAME AND STYLE OF M/S SELECT ENGINEERS, A SOLE PROPRIETOR FIRM OF THE ASSE S SEE HIMSELF. THE RETURN FOR THE YEAR UNDER CONSIDERATION I.E. 2008 - 09 WAS FILED ON 2.9.2008 DECLARING INCOME OF RS. 7,27,520/ - . THE SAID RETURN WAS ACCOMPANIED BY AUDITED FINANCIAL STATEMENTS, TAX AUDIT REPORT WITH ALL ANNEXURE. THE CASE WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT AND WAS SELECTED FOR SCRUTINY WITH THE PRIOR APPROVAL ITA NO. 2580 / DEL/ 201 2 3 OF CCIT, DELHI - XII. THEREAFTER, THE AO ISSUED NOTICE UNDER SECTION 143(2) DATED 18.9.2009 BUT AS THE JURISDICTION WAS LYING WITH ANOTHER WARD, THEREFORE, THE CASE WAS TRANSFERRED AND FRESH NOTICES U/S. 143(2) AND 142(1) WERE ISSUED ON 9 TH AUGUST, 2010. 4.1 DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE DID SOME TRANSACTIONS WITH M/S BAG FILMS AND MEDIA LIMITED FOR A SUM OF RS. 5,12,98,519/ - . AN AMOUNT OF RS. 11,29,46 5/ - WAS DEDUCTED AT SOURCE BY M/S BAG FILMS AND MEDIA LIMITED AT THE TIME OF PAYMENT TO THE ASSESSEE. WHEN THE TDS CERTIFICATE WAS RECEIVED FROM M/S BAG FILMS AND MEDIA LTD. THE SAME SHOWED A PAYMENT OF RS. 5,28,98,519/ - ON WHICH A SUM OF RS. 11,62,425/ - WAS DEDUCTED AT SOURCE. 4.2 THE ASSESS E E WHILE FILING ITS RETURN OF INCOME DECLARED TOTAL RECEIPTS OF RS. 5,12,98,519/ - FROM M/S BAG FILMS AND MEDIA LIMITED AND CLAIMED TDS OF RS. 11,62,425/ - AS DECLARED IN THE TDS CERTIFICATE. 4.3 DURING THE COURSE O F ASSESSMENT PROCEEDINGS BEFORE THE AO IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE THAT HE HAD BOOKED HIS INCOME LESSER BY RS. 16,00,000/ - AS THE TDS CLAIMED BY HIM WAS HIGHER AS AGAINST THE INCOME DECLARED BY HIM. 4.4 THE ASSESSEE REALIZING THIS MIST AKE ASKED BY M/S BAG FILMS AND MEDIA LIMITED TO RECTIFY THE MISTAKE AS THE SAID DIFFERENCE OF RS. 16,00,000/ - WAS NEVER RECEIVED BY HIM. THEREAFTER M/S BAG FILMS AND MEDIA LIMITED REVISED ITS RETURN OF TAX DEDUCTED AT SOURCE. 4.5 DURING THE COURSE OF HE ARING BEFORE THE AO THE ASSESSEE STATED THE FACT THAT THE SUM OF RS. 16,00,000/ - WAS NEVER RECEIVED BY IT AND ADMITTED THAT IT HAD CLAIMED EXCESS TDS TO THE EXTENT OF RS. 32,960/ - . ON THE BASIS HE ITA NO. 2580 / DEL/ 201 2 4 REQUESTED THAT A SUM OF RS. 16,00,000/ - CANNOT BE CONSIDERE D AS HIS INCOME. THE AO CONSIDERED THE AMOUNT OF RS. 16,00,000/ - AS UNDISCLOSED INCOME OF THE ASSESSEE AND ADDED THE SAME TO THE GROSS TOTAL INCOME. 5. AGAINST THE ORDER DATED 29.12.2010 PASSED BY THE ASSESSING OFFICER U/S. 143(3) OF THE I.T. ACT, 1961, ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER DATED 19.3.2012 HAS DISMISSED THE APPEAL OF THE ASSESSEE. 6. AGAINST THE ORDER DATED 19.3.2012 OF THE LD. CIT(A), ASSESSSEE IS IN APPEAL BEFORE US. 7. LD. COUNSEL OF THE ASSESSEE HAS FIL ED A PAPER BOOK CONTAINING PAGES 1 TO 44 HAVING THE RECORDS OF THE ASSESSMENT STAGE AS WELL AS APPELLATE STAGE. 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS , ESPECIALLY THE PAPER BOOK FILED BY THE LD. COUN S EL OF THE ASSESSEE AND ORDERS OF T HE REVENUE AUTHORITIES. 9. LD. COUNSEL OF THE ASSESSEE DURING THE HEARING BEFORE US HAD STATED THAT AS S ESSING OFFICER HAS NOT PROVIDED ADEQUATE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTITATE ITS CLAIM AND SIMILARLY THE LD. FIRST APPELLATE AUTHORITY HAS UPH ELD THE ORDER OF THE ASSESSING OFFICER. THEREFORE, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. 9.1 ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 9.2 IN OUR CONSIDERED OPINION, IN THE INTER E ST OF NATURAL JUSTICE, THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ISSUE INVOLVED IN THE PRESENT APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH THE ITA NO. 2580 / DEL/ 201 2 5 DIRECTION TO CONSIDER THE SAME AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1 0 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 29 / 10 /20 1 4 . SD/ - SD/ - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 29 / 10 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 2580 / DEL/ 201 2 6