SANJAY VISHWAKARMA, THANE V. ACIT.,-25(2), MUMBAI

ITA 3246/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2979 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 25-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA NOS. 4391 & 3246/MUM/2011 (ASSESSMENT YEAR:2007-08) DCIT 25(2), C-11, 1 ST FLOOR, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051 APPELLA NT VS. SHRI SANJAY RAMSHARIF VISHWAKARMA, RAMJI YADAV CHAWL, SODAWALA LANE, BORIWALI (W), MUMBAI 400 092 RESPONDENT & SANJAY VISHWAKARMA A-104, AASHIRWAD BLDG., NO.1, POONAM SAGAR COMPLEX, MIRA ROAD (E), THANE 401107 APPELLANT VS. ACIT 25(2), C-11, 1 ST FLOOR, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400051 RESPONDENT PAN: ACPPV7048E / BY REVENUE : SHRI VINOD KUMAR, D.R. / BY ASSESSEE : SHRI NARESH JAIN, A.R. /DATE OF HEARING : 14.06.2016 /DATE OF PRONOUNCEMENT : 29.06.2016 ITA NOS.4391 & 3246/MUM/11 A.Y. 07-08 [DCIT VS. SANJAY R. VISHWAKARMA] PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THESE CROSS APPEALS HAVE BEEN FILED BY REVENUE AND ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOM E-TAX (APPEALS)-35, MUMBAI, DATED 04.03.2011 FOR A.Y. 200 7-08. 2. IN ITA NO.4391/MUM/2011, REVENUE HAS FILED THE A PPEAL ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,29,05,597/- MADE BY THE A.O. ON ACCOUNT OF NON-DEDUCTION OF TDS ON VARIOUS EXPENSES WITHOUT APPRECIATING THE FACT THAT THE RECEIPTS OF THE ASSESSEE ARE IN THE NATURE OF CONTR ACT RECEIPTS AND THE PAYMENTS MADE BY THE ASSESSEE ARE IN THE NATURE OF CONTRACT RECEIPTS AND THE PAYMENTS MADE BY THE ASSESSEE ARE IN THE NATURE OF SUB- CONTRACT CHARGES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,29,05,597/- MADE BY THE A.O. ON ACCOUNT OF NON-DEDUCTION OF TDS ON VARIOUS EXPENSES WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO PROVIDE THE DOCUMENTARY EVIDENCE FOR THE EXPENSES CLAIMED IN THE PROFIT & LOSS ACCOUNT. 3. IN THIS APPEAL, ALTHOUGH REVENUE HAS RAISED MULT IPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING, THE GRIEVANCE OF THE REVENUE HAS BEEN CONFINED TO GROUND NO.1 AND OT HER GROUNDS HAVE NOT BEEN PRESSED. GROUND NO.1 REFLECT S A SOLITARY GRIEVANCE OF THE REVENUE. 3. BRIEFLY PUT, THE RELEVANT FACTS ARE THAT THE ASS ESSEE IS AN ITA NOS.4391 & 3246/MUM/11 A.Y. 07-08 [DCIT VS. SANJAY R. VISHWAKARMA] PAGE 3 INDIVIDUAL ENGAGED IN THE BUSINESS OF CIVIL CONSTRU CTION ON CONTRACT BASIS UNDER THE NAME AND STYLE OF M/S S.V. ENTERPRISES. THE ASSESSING OFFICER COMPLETED THE AS SESSMENT U/S 143 (3) OF THE INCOME TAX ACT AND ADDED RS. 1,2 9,05,597/- U/S 40(A) (IA) OF THE ACT FOR FAILURE ON THE PART O F THE APPELLANT TO DEDUCT TAX AT SOURCE IN RESPECT OF CERTAIN PAYME NTS HOLDING THAT RECEIPTS OF THE ASSESSEE ARE IN THE NATURE OF CONTRACT RECEIPTS AND THE PAYMENTS MADE BY THE ASSESSEE ARE IN THE NATURE OF SUB-CONTRACT CHARGES. AGGRIEVED FROM THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE HAS FILED AN APPEAL BEFORE CIT (A) MUMBAI, WHO HAS DELETED THE ADDITION. NOT BEING SATISFIED WITH THE ORDER OF THE CIT(A), THE REVENUE IS IN APP EAL BEFORE US. 3.1 WE HAVE HEARD BOTH THE PARTIES, CAREFULLY CONSI DERED THE RIVAL SUBMISSIONS AND PURSED THE MATERIAL AVAILABLE ON RECORD. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND OF THE ASSESSING OFF ICER WHICH WE HAVE ALREADY NOTED IN EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. ON THE OTHER HAND, THE AUTHORI SED REPRESENTATIVE FOR THE ASSESSEE TOOK US THROUGH PAR A NO.8.2 OF ORDER OF CIT (A) WHO HELD THAT PROVISIONS OF SECTIO N 194C (1) ARE APPLICABLE ONLY FROM 01.06.2007 AND NOT APPLICABLE IN THIS YEAR AS THE APPELLANT IS BEING AN INDIVIDUAL. SINCE, THE PROVISIONS OF SECTION 194C (1) IS NOT APPLICABLE TO THE ASSESSEE (ASSESSEE BEING AN INDIVIDUAL) FOR A.Y. 2007-08 THERE WOULD N OT BE ANY QUESTION TO DEDUCT TDS. THE LD. AR ALSO RELIED UPON CIT VS. PRASHANT H SHAH (TAX APPEAL NO. 1591 OF 2011 (GUJ.H C) WHEREIN IT HAS BEEN HELD THAT PRIOR TO AMENDMENT W. E.F.9 06- ITA NOS.4391 & 3246/MUM/11 A.Y. 07-08 [DCIT VS. SANJAY R. VISHWAKARMA] PAGE 4 207 CATEGORY OF INDIVIDUAL, HUF OR AOP WAS NOT INCL UDED UNDER SECTION 194C(1) OF THE ACT, HENCE WE DO NOT H ESITATE TO UPHOLD THE ORDER OF THE LD. CIT (A). 3.2 IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 4. IN ITA NO.3246/MUM/2011, ASSESSEE HAS REQUESTED THE BENCH NOT TO PRESS ANY GROUNDS OF APPEAL. THE ASSE SSEE HAS EXPRESSED HIS DESIRE TO WITHDRAW THE SAID APPEAL, T HEREFORE, THE APPEAL OF ASSESSEE IS HEREBY DISMISSED AS WITHDRAWN . 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED A ND APPEAL OF ASSESSEE IS DISMISSED AS WITHDRAWN. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF JUNE, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 29/06/2016 TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. ! / CONCERNED CIT 4. !- / CIT (A) 5. )*+ ,--, , / DR, ITAT, MUMBAI 6. +12 34 / GUARD FILE. BY ORDER / , / , ,