HARSH KAUSHAL CORPORATION, MUMBAI V. ADDL CIT 15(2), MUMBAI

ITA 3164/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0943 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM KUMAR TIWARI LD
• Assessee Lawyers: RAHUL HAKANI LD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA.NO.3164/MUM/2016 HARSH KAUSHAL CORPORATION ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.3164/MUM/2016 ( / ASSESSMENT YEAR: 2011-12) HARSH KAUSHAL CORPORATION CRYSTAL SHOPPING ARCADE OPP. INDIAN BANK 1 ST FLOOR, S.V.ROAD SANTACRUZ(W) MUMBAI - 400 0 54 / VS. A SSISTANT COMMISSIONER OF INCOME TAX CIRCLE 22(1) AIR INDIA BUILDING NARIMAN POINT MUMBAI ! ./ ./PAN/GIR NO. AACFH-8774-L ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) A SSESSEE BY : RAHUL HAKANI, LD.AR RE VENUE BY : RAM KUMAR TIWARI, LD. DR / DATE OF HEARING : 14/12/2017 / DATE OF PRONOUNCEMENT : 10/01/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2011-12 ASSAILS THE ORDER OF THE LD. COMMISSIONER O F INCOME-TAX (APPEALS)-34 [CIT(A)], MUMBAI, APPEAL NO. CIT(A)-34/ADDL.CIT.15(2)/IT- 494/14-15 DATED 21/03/2016 QUA CONFIRMATION OF CERTAIN ADDITION ON ACCOUNT OF MAINTENANCE CHARGES FOR RS.34.56 LACS. T HE ASSESSMENT FOR ITA.NO.3164/MUM/2016 HARSH KAUSHAL CORPORATION ASSESSMENT YEAR-2011-12 2 IMPUGNED AY WAS FRAMED BY THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE 15(2), MUMBAI [AO] U/S 143(3) OF THE INC OME TAX ACT, 1961 ON 21/03/2014. 2.1 FACTS LEADING TO THE SAME ARE THAT ASSESSEE BEING RESIDENT FIRM ENGAGED AS BUILDERS AND DEVELOPERS WAS ASSESSED U/S 143(3) AT RS.3,41,54,410/- AFTER SOLE DISALLOWANCE OF RS.34.5 6 LACS AS AGAINST RETURNED INCOME OF RS.3,06,98,411/- E-FILED BY THE ASSESSEE ON 22/09/2011. 2.2 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE DID NOT OFFER CERTAIN MAINTENANCE CHARGES OF RS.34.56 LACS STATED TO BE RECEIVABLE FROM TRENT HYPERMARKET LIMITED TO TAX IN THE IMPUGNED AY. THE ASSESSEE CONTENDED THAT THE SAID RECEIPT WAS IN DISPUTE AND RECEIVED SUBSEQUENTLY AND HENCE, OFFERED TO TAX IN AY 2012-13. HOWEVER, NOT CONVINCED, LD. AO OPINED THAT THE ASSE SSEE FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING WAS REQUIRED TO OFF ER THE SAME TO TAX IN IMPUGNED AY AND THEREFORE, ADDED THE SAME TO THE IN COME OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE THE LD.CIT(A) VIDE IMPUGNED ORDER DATED 21/0 3/2016 WHERE THE ASSESSEE REITERATING THE STAND CONTENDED THAT THE R EVENUE WAS RECOGNIZED IN THE NEXT AY IN TERMS OF ACCOUNTING STANDARD-9 ISSUED BY ICAI. HOWEVER, LD. CIT(A) REJECTED THE SAME BY NOTING THA T TDS WAS DEDUCTED BY THE PAYEE IN THE IMPUGNED AY AND THEREF ORE, THE ADDITIONS WERE JUSTIFIED. AGGRIEVED, THE ASSESSEE IS IN FURTH ER APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR] DREW OUR ATTEN TION TO THE FACT THAT THERE WAS UNCERTAINTY AS TO THE RECEIPT OF THE INCOME AND THE ITA.NO.3164/MUM/2016 HARSH KAUSHAL CORPORATION ASSESSMENT YEAR-2011-12 3 REVENUE WAS RECOGNIZED IN NEXT AY IN TERMS OF ACCOUNTING STANDARD-9 AND THE ASSESSEE HAS ALREADY PAID THE DUE TAXES ON THE SAME IN THE NEXT AY AND HENCE, ADDITIONS WERE NOT JUSTIFIED. OU R ATTENTION WAS FURTHER DRAWN TO THE FACT THAT CREDIT OF TDS HAS AL SO BEEN CLAIMED IN THE NEXT AY ONLY. PER CONTRA, LD. DR JUSTIFIED THE STAND OF LOWER AUTHORITIES. 5. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. IT IS TRITE LAW THAT INCOME COU LD NOT BE TAXED TWICE. IT IS GATHERED FROM LD. ARS SUBMISSIONS THAT THE ASSE SSEE RAISED INVOICE FOR RS.47.02 LACS AGAINST THE PAYEE ON 21/04/2011 A ND RECEIVED PAYMENT OF RS.34.56 LACS AGAINST THE SAME. THIS FAC T LENDS CERTAIN STRENGTH TO THE ARGUMENT OF LD. AR THAT THERE WAS S OME DISPUTE AS TO THE QUANTIFICATION OF THE CHARGES TO BE RECEIVED BY THE ASSESSEE. THIS IS FURTHER FORTIFIED BY THE FACT THAT THE ASSESSEE CLA IMED THE CREDIT OF TDS IN THE NEXT AY ONLY. WE ALSO NOTE THAT THE ASSESSEE IS A FIRM AND SUBJECTED TO SIMILAR TAX RATE IN IMPUGNED AY AS WELL AS IN NE XT AY. HENCE, UPON FACTUAL MATRIX, WE SEE NO REASON TO DISTURB THE ALR EADY CONCLUDED ASSESSMENT OF AY 2012-13. THEREFORE, THE MATTER IS RESTORED BACK TO THE FILE OF LD. AO TO VERIFY THE FACTS THAT THE ASSESSE E HAS OFFERED THE SAID INCOME IN AY 2012-13 AND ALSO VERIFY THE FACT THAT THAT CREDIT OF RELATED TDS HAS NOT BEEN CLAIMED IN THE IMPUGNED AY. IF THE CONTENTIONS OF THE ASSESSEE ARE FOUND TRUE, THE IMPUGNED ADDITIONS STA NDS DELETED ELSE THE MATTER MAY BE DECIDED BY LD. AO AS PER LAW. NEEDLES S TO SAY THAT THE ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE PROVID ED TO THE ASSESSEE, WHO, IN TURN, IS DIRECTED TO SUBSTANTIATE HIS CLAIM IN THIS REGARD FAILING WHICH THE LD. AO SHALL BE AT LIBERTY TO DISPOSE-OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ITA.NO.3164/MUM/2016 HARSH KAUSHAL CORPORATION ASSESSMENT YEAR-2011-12 4 6. RESULTANTLY, THE ASSESSEES APPEAL STANDS ALLOWE D FOR STATISTICAL PURPOSES IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY,2018 SD/- SD/- (JOGINDER SINGH) (MANOJ KUMAR AGGAR WAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :10/01/2018 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. $&. , . , / DR, ITAT, MUMBAI 6. /0 / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI