The ACIT, Circle-5, Baroda V. M/s. Shiv Construction Co., Baroda

ITA 333/AHD/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94225 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 03-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: MK PATELAR

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER ./ ITA NO. 333/AHD/2010 / ASSESSMENT YEAR: 2006-07 ACIT, CIRCLE-5, BARODA VS. M/S. SHIV CONSTRUCTION CO., 3, SONALI SOCIETY, WATER TANK ROAD, KARELIBAUG, BARODA PAN : AAKFS 6031 P / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR DR ASSESSEE(S) BY : SHRI M K PATEL, AR !' # $%&/ // / DATE OF HEARING : 06/08/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 07/08/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V, BAR ODA DATED 30.11.2009 FOR ASSESSMENT YEAR 2006-07. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS.1,25,27,538 /- TO RS.18,79,131/-, ITA NO. 333/AHD/2010 ACIT VS. SHIV CONSTRUCTION CO. FOR AY 2006-07 2 ON ACCOUNT OF SUB-CONTRACT EXPENSES DISALLOWED U/S 40(A)(IA) OF THE ACT, BY ESTIMATING THE PROFIT MARGIN AT 15% OF RS.1,25,2 7,538/-. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT THE ITAT CONSIDERED THIS I SSUE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-06 VIDE ITA NO. 2 778/AHD/2009 AND SET ASIDE THE MATTER BACK TO THE FILE OF THE AS SESSING OFFICER WITH THE FOLLOWING DIRECTIONS.:- 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. WE FIND THAT BOTH THE AUTHORITIES BELOW HAVE TREATED THE RE CEIPTS PAID TO THE OTHER SEVEN PERSONS AS THE PAYMENTS MADE UNDER THE SUB-CONTRACT. IF THE PAYMENT HAS BEEN MADE UNDER THE SUB-CONTRACT, T HE ASSESSEE WAS REQUIRED TO DEDUCT THE TAX. THE CONTENTION OF THE L D.COUNSEL FOR THE ASSESSEE IS THAT EVEN IF IT IS ASSUMED THAT THE PAY MENTS HAVE BEEN MADE UNDER SUB-CONTRACT, THEN ALSO THE AO HAS TO GIVE A CLEAR FINDING AS TO HOW AND UNDER WHAT PROVISIONS OF LAW THE ASSESSEE I S REQUIRED TO DEDUCT THE TAX. IT IS ALSO CONTENDED THAT IN VIEW OF THE A MENDMENT IN SECTION 201 OF THE ACT AND ALSO IN THE LIGHT OF THE JUDGEME NT OF HON'BLE APEX COURT RENDERED IN THE CASE OF HINDUSTAN COCA COLA B EVERAGE PVT.LTD. VS. CIT REPORTED AT (2007) 293 ITR 226(SC), IF THE RECIPIENT HAS DISCLOSED THE CONTRACT RECEIPTS IN HIS RETURN OF IN COME AND TAX HAS BEEN PAID ON SUCH RECEIPTS UNDER SUCH CIRCUMSTANCES, NO DISALLOWANCE IS CALLED FOR. AFTER CONSIDERING THE TOTALITY OF THE F ACTS, WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE BE RESTORED TO THE FILE OF THE AO TO VERIFY WHETHER THE RECIPIENTS OF THE PAYMENTS HAVE DECLARE D THE RECEIPTS IN THEIR RETURNS OF INCOME AND PAID TAX THEREON. IN CA SE, THEY HAVE DECLARED AND TAX HAS BEEN PAID, THE ISSUE MAY BE DE CIDED IN THE LIGHT OF THE JUDGEMENT OF THE HON'BLE APEX COURT RENDERED IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE PVT.LTD. (SUPRA) AND AM ENDMENT IN SECTION 201 OF THE ACT. ACCORDINGLY, THE ISSUE I S HEREBY RESTORED TO THE FILE OF AO FOR DECISION AFRESH IN THE LIGHT OF THE OBSERVATION MADE HEREINABOVE. NEEDLESS TO SAY THAT THE ASSESSEE MAY BE GIVEN SUFFICIENT OPPORTUNITY TO FURNISH REQUISITE DETAILS. THUS, THI S GROUND OF REVENUE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 333/AHD/2010 ACIT VS. SHIV CONSTRUCTION CO. FOR AY 2006-07 3 4. ADMITTEDLY, THE FACTS OF THE YEAR UNDER CONSIDER ATION ARE IDENTICAL. WE, THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FI LE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AS PER THE DIRECTIONS O F THE ITAT FOR ASSESSMENT YEAR 2005-06 CITED SUPRA. 5. IN THE RESULT, REVENUES APPEAL IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 7 TH AUGUST, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 07/08/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. +01 $ , , / D R, ITAT, AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD