Income-tax Officer, Ward - 3(1), Pune V. Sharaddha & HP Joint Venture, Pune

ITA 2666/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4878 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 40(a)(ia); 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO. 2666 /PUN/201 7 / ASSESSMENT YEAR : 201 4 - 15 INCOME TAX OFFICER, WARD 3(1), PUNE ....... / APPELLANT / V/S. SHRADDHA & IHP JOINT VENTURE, SHRADDHA HOUSE, CTS NO. 1206/A/1, PLOT NO. 887 - A, SHIROLE ROAD, OFF J.M. ROAD, SHIVAJINAGAR, PUNE 411004 PAN : AACAS5183M / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI DEEPAK GARG / DATE OF HEARING : 09 - 10 - 2020 / DATE OF PRONOUNCEMENT : 13 - 10 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 30 - 08 - 2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, PUNE [CIT(A)] FOR ASSESSMENT YEAR 201 4 - 15 . 2. THE REVENUE HAS RAISED FOUR GROUNDS OF APPEAL AMONGST WHICH THE ONLY ISSUE EMANATES CHALLENGING THE ACTION OF CIT(A) IN DELETING THE 2 ITA NO . 2666/PUN/2017, A.Y. 2014 - 15 DISALLOWANCE MADE BY THE AO U/ S. 40(A)(IA) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THE CASE RELATING TO THE ISSUE ON HAND ARE THAT THE ASSESSEE IS AN AOP AND IS A CIVIL CONTRACTOR WHICH IS JOINT VENTURE BY M/S. SHRADDHA ENERGY AND INFRAPROJECTS PVT. LTD. IN RATIO 70 - 30. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE RECEIVED CONTRACT OF RS.9,83,97,073/ - AND NO INCOME OFFERED. THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE CONTRACT RECEI PT SHOULD NOT BE TREAT ED AS SUB CONTRACT AND WHY THE DISALLOWANCE SHOULD BE MADE FOR NOT DEDUCTING TDS , BUT HOWEVER, DUE TO PENDENCY OF APPEAL ON SIMILAR ISSUE BEFORE THE HONBLE HIGH COURT OF BOMBAY, THE AO PROCEEDED TO DISALLOW RS.9,83,97,070/ - FOR NOT DEDUCTING TDS. THE CIT (A) BY PLACING RELIANCE ON THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009 - 10 AND ALSO FOR A.YS. 2011 - 12, 2012 - 13 AND 2013 - 14 DELETED THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE U/S. 40(A)(IA) OF THE ACT. 4. HEARD BOTH PARTIES AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE SUBMITTED A SIMILAR ISSUE WAS RAISED DURING THE A.YS. 2011 - 12 AND 2012 - 13 AND CIT(A) DELETED THE SAID DISALLOWANCE MADE BY THE AO. FURTHER, THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 20 09 - 10 DECIDED THE SAME ISSUE IN FAVOUR OF THE ASSESSEE. WE FIND THAT THE FACTS AND CIRCUMSTANCES INVOLVED THE ISSUE ARE IDENTICAL AND SIMILAR TO THE ASSESSEES OWN CASE BY LATEST IN A.Y. 2013 - 14. WE NOTE THAT THIS TRIBUNAL HAD CONSIDERED THE POINTS RAISE D BY THE LD. DR IN CONTROVERTING THE ORDER OF THIS TRIBUNAL IN EARLIER YEARS A.YS. 2009 - 10, 2011 - 12 AND 2012 - 13 AND HELD THE FACTS INVOLVED IN THE EARLIER YEARS ARE SIMILAR IN ITS ENTIRETY IN A.Y. 2013 - 14 . THE RELEVANT PORTION FROM PARAS 6 TO 10 IN ITA NO . 3 ITA NO . 2666/PUN/2017, A.Y. 2014 - 15 200/PUN/2017 FOR A.Y. 2013 - 14 ARE REPRODUCED HERE - IN - BELOW FOR READY REFERENCE : 6. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE VEHEMENTLY ARGUED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN ASSESSEE S OWN CASE IN ITA NO.2203/PUN/2014 FOR THE ASSESSMENT YEAR 2011 - 12 AND IN ITA NO.36/PUN/2016 FOR ASSESSMENT YEAR 2012 - 13. 7. PER CONTRA, THE LD. DR CONTENDED THAT THE CASE OF THE ASSESSEE IS DISTINGUISHABLE IN FACTS. THOUGH PRINCIPAL LY, HE AGREED THAT THE CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN ASSESSEE S OWN CASES (SUPRA.) AS HEREINABOVE REFERRED. 8. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS, GAVE CO NSIDERABLE THOUGHT TO THE FINDINGS OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, PUNE IN ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 2012 - 13. WE OBSERVE THAT THE TRIBUNAL HAS HELD AND OBSERVED AS FOLLOWS: 10.2 RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRADDHA & MAHALAXMI JOINT VENTURE AND OTHERS (SUPRA), WE ARE INCLINED TO HOLD AGAINST THE REVENUE. WE SIMULTANEOUSLY FIND THAT THE CASE OF THE ASSESS EE IS FULLY SUPPORTED BY CBDT CIRCULAR NO.07/2016 (SUPRA) AND JUDICIAL OPINIONS EXPRESSED IN THE CASE OF SMSL - UANRCL (JV) (SUPRA) AND LINDE AG, LINDE ENGINEERING DIVISION AND ANR. (SUPRA). 10.3 WE ALSO SIMULTANEOUSLY TAKE AFFIRMATIVE NOTE OF THE ARGUMENT ON BEHALF OF THE ASSESSEE THAT RIGOURS OF SECTION 40(A)(IA) ARE DILUTED IN THE FACTS OF THE CASE SINCE THE PAYEE HAS ADMITTEDLY FILED ITS RETURN OF INCOME DISCLOSING THE IMPUGNED RECEIPTS AND INCOME EARNED BY IT EMBEDDED IN THE RECEIPT HAS BEEN DULY OFFER ED FOR TAXATION. IN THIS VIEW OF THE MATTER, THE ASSESSEE JOINT VENTURE CANNOT BE TREATED AS ASSESSEE IN DEFAULT IN VIEW OF THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P.) LTD. (SUPRA) AND THE DECISION OF THE CO - OR DINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRI CHANDRAKANT J. MANDALE (SUPRA). THUS, SEEN FROM ANY ANGLE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. 7. BOTH THE SIDES ARE UNANIMOUS IN STATING THAT THE ISSUES INVOLVED IN THE PRESENT APPEAL ARE IDENTICAL. THEREFORE, IN THE LIGHT OF DECISION OF COORDINATE BENCH IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEARS, THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE UP HELD AND APPEAL OF THE REVENUE IS DISMISSED. IN THIS DECISION, THE CO - ORDINATE BENCH OF THE TRIBUNAL, PUNE HAS OBSERVED THAT THE STRICTURES OF SECTION 40(A)(IA) ARE DILUTED IN THE FACTS OF THE CASE SINCE THE PAYEE HAS ADMITTEDLY FILED ITS RETURN OF INCO ME DISCLOSING THE IMPUGNED RECEIPTS AND INCOME EARNED BY IT EMBEDDED IN THE RECEIPT HAS BEEN DULY OFFERED FOR TAXATION. IN THIS VIEW OF THE MATTER, THE ASSESSEE JOINT VENTURE CANNOT BE TREATED AS ASSESSEE IN DEFAULT IN VIEW OF THE DECISION OF THE HON BLE D ELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P.) LTD. REPORTED IN 377 ITR 635 (DEL.) AND THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SHRI CHANDRAKANT J. MANDALE , ITA NO.1708/PN/2012 FOR THE ASSESSMENT Y EAR 2008 - 09 DECIDED ON 10.04.2015, THE ASSESEE JOINT VENTURE CANNOT BE TREATED AS ASSESSEE IN DEFAULT . 9. REVERTING TO THE ARGUMENTS PUT FORTH BY THE LD. DR REGARDING DISTINGUISHABLE ASPECTS OF THE CASE SO FAR AS THE FACTS ARE CONCERNED, WE HAVE PERUSE D THE ORDERS CAREFULLY IN THE EARLIER ASSESSMENT YEARS IN ASSESSEE S OWN CASE AND THE FACTS ARE SIMILAR IN ITS ENTIRETY. WE, HOWEVER, APPRECIATE THAT ON PRINCIPLE; THE LD. DR HAD FAIRLY CONCEDED THAT THE ISSUE IS COVERED BY THE DECISION IN ASSESSEE S OWN C ASE. 4 ITA NO . 2666/PUN/2017, A.Y. 2014 - 15 10. THEREFORE, RESPECTFULLY, FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, PUNE FOR THE ASSESSMENT YEAR 2012 - 13 AS HEREINABOVE REFERRED TO FOR THIS YEAR ALSO I.E. A.Y.2013 - 14, THE RELIEF PROVIDED BY THE LD. COMMISSIONER OF INCOME T AX(APPEALS) TO THE ASSESSEE IS HEREBY SUSTAINED. 5 . IN THE LIGHT OF DISCUSSION MADE BY US HERE - IN - ABOVE IN PURSUANCE OF ORDERS OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 2009 - 10, 2011 - 12, 2012 - 13 AND 2013 - 14 WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND IT IS JUSTIFIED. THUS, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH OCTOBER, 2020 . SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 13 TH OCTOBER, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 3, PUNE 4. THE PR. CIT - 2, PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE