DSG CORPORATION PVT. LTD. (FORMERLY KNOWN AS M/S.D.S.GUPTA CONSTRUCTION PVT. LTD.), MUMBAI V. DCIT, CC -7(2), MUMBAI

ITA 3480/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3127 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Corroborative evidences; TDS; Set aside
• Section: 142(1); 143(2); 37; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , A M AND SHRI AMARJIT SINGH, J M / I.T.A. NO S . 3480/M UM /2018 & 3481 /MUM/201 8 ( / ASSESSMENT YEARS: 2012 - 13 & 2013 - 14 ) M/S. DSG CORPORATION PVT. LTD. (FORMERLY KNOWN AS M/S. DS GUPTA CONSTRUCTION PVT. LTD.) 103/A, SWISS CORNER, SHASTRI NAGAR, LOKHANDWALA, ANDHERI (W), MUMBAI - 400053 . / VS. DCIT CC - 7(2) ROOM NO.655, 6 TH FLOOR, AAYAKAR BH AWAN, M.K. ROAD, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AADCM5896J ( / APPELLANT ) .. ( / RESPONDENT ) / DAT E OF HEARING: 11 / 11 / 2019 /DATE OF PRONOUNCEMENT: 27 / 11 / 2019 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE ABOVE MENTIONED APPEAL S AGAINST THE DIFFERENT ORDER PASSED BY THE C OMMI SSIONER OF INCOME TAX (APPEALS) - 49 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A) ] RELEVANT TO THE A.Y S . 20 12 - 13 & 2013 - 14. ITA. NO. 3480/MUM/2018 2 . THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 26.09.2017 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS) - 49, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 12 - 13 . 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. COMMISS IONER OF INCOME TAX (APPEALS) ERRED IN PASSING ASSESSEE BY: SHRI PRATEEK JAIN REVENUE BY : SHRI DROP SINGH MEENA ITA N S O. 3480 & 3481 /M/201 8 A. YS.2012 - 13 & 2013 - 14 2 EXPARTE ORDER UNDER WITHOUT AFFORDING EFFECTIVE OPPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIR MING THE ACTION OF LD. AO IN MAKING REJECTING THE CLAIM OF TDS CREDIT AMOUNTING TO RS.26,70,214/ - AS PER THE IMPUGNED ORDER OR OTHERWISE. 3. THE APPELLANT CRAVE LEAVES TO ADD, AMEND, ALTER, MODIFY AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.09.2012 DECLARING TOTAL INCOME TO THE TUNE OF RS.84,14,883/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION. IN THE YEAR UNDER CONSIDERATION , THE ASSESSEE COMPANY HAD SHOWED ITS INCOME FROM BUSINESS & PROFESSION. AT THE TIME OF ASSESSMENT PROCEED ING, THE ASSESSEE WAS ASKED TO FURNISH THE AIR RECONCILIATION ST ATEMENT, THE ASSESSEE SUBMITTED THE SAME. ON APPRAISAL OF THE SAID DETAILS, IT WAS SEEN THAT THE ASSESSEE HAS CLAIMED THE TDS ON ADVANCES IN RESPECT OF THE FOLLOWING CASES: - SR. NO. NAME TDS AMOUNT CLAIMED 1 ADITYA BIRLA SCIENCE & TECH. CO. LTD. 4,477/ - 2 BHAWAR INTERIOR 2,177/ - 3 DB MALL - BHOPAL 37,952/ - 4 GENEXT HARDWARE AND PARKS PVT. LTD. 6,42,448/ - 5 GOAN HOTEL AND CLUBS PVT. LTD. 1,00,886/ - 6 K RAHEJA UNIVERSAL 1,172/ - 7 LAKE PLAZA - THE PARK HOTEL 1,77,072/ - 8 LODHA DEVELOPERS PVT. LTD. 1,829/ - 9 LOK PRIYA BUILDWELL PVT. LTD. 70,000/ - 10 NIRLON LTD PHASE II 562/ - 11 OBEROI CONSTRUCTION LTD. 19,778/ - 12 ORBIT CORPORATION 4,11,936/ - 13 PRESTIGE ESTATE PROJECTS 5,26,847/ - 14 RAG HUVEER URBAN INFRASTRUCTURE 53,540/ - 15 SUPREME INFRASTRUCTURE INDIA LTD. 1,05,080/ - 16 TATA MEMORIAL CENTRE 41,552/ - 17 PHONIX MILL LTD. 4,826/ - 18 THE BOMBAY DYEING & MFG CO LTD. 15,553/ - 19 CENTURY TEXTILE & INDUSTRIES LTD. 3,48,470/ - 20 MANDKE FO UNDATION 18,000/ - 21 VOLKSWAGEN INDIA PVT. LTD. 76,057/ - TOTAL 26,70,214/ - ITA N S O. 3480 & 3481 /M/201 8 A. YS.2012 - 13 & 2013 - 14 3 5. THE GROSS INCOME CREDITED IN RESPECT OF THE TDS CLAIMED WAS NOT FOUND IN CONSONANCE WITH THE RECONCILIATION STATEMENT. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF GROSS AMOUNT CREDITED BUT THE SUPPORTING EVIDENCE WAS NOT FILED, THEREFORE, THE CLAIM OF TDS IN SUM OF RS.26,70,214/ - WAS DECLINED AND ADDED TO THE INCOME OF THE ASSESSEE. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.84,14,880/ - . FEELING AGGRI EVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE AS SESSEE, THEREFORE, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. ISSUE NOS. 1 & 2 6 . UNDER THESE ISSUES THE ASSESSEE HAS CHALLENGED THE ORDER ON THE GROUND OF THAT TH E CIT(A) HAS BEEN PASSED THE ORDER AGAINST EXPARTE AND THE CIT(A) HAS WRONGLY REJECTED THE CLAIM OF TDS IN SUM OF RS. 26,70,214/ - . THE COPY OF ORDER DATED 26.09.2017 PRODUCED IN WHICH WE FOUND THAT THE ORDER WAS PASSED BY THE CIT(A) AGAINST EXPARTE. HOWEVER , SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE ON DATED 25.09.2017 BUT THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE ONLY REQUESTED ONE MORE OPPORTUNITY TO SUBSTANTIATE HIS CLAIM IN THE INTEREST OF JUSTICE. ONE MORE OPPORTUNITY IS AWARDED TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM BEFORE THE AO IN THE INTEREST OF JUSTICE . ACCORDINGLY, WE SET ASIDE THE FINDING OF THE CIT(A) AND DIRECT THE AO TO VERIFY THE CLAIM OF THE TDS RAISED BY ASSESSEE AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD T O THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ITA. NO. 3481/MUM/2018 7. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 20 .0 2 .201 8 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS) - 49, ITA N S O. 3480 & 3481 /M/201 8 A. YS.2012 - 13 & 2013 - 14 4 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 13 - 14 . 8. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING A SUM OF RS.1,69,922/ - ON ACCOUNT OF EXPENSES CLAIMED ON SALE OF FLAT AS PER T HE IMPUGNED ORDER OR OTHERWISE . 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LA W THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING A SUM OF RS.11,13,812/ - ON ACCOUNT OF FOREIGN TRAVELLING EXPENSES AS PER THE IMPUGNED ORDER OR OTHERWISE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING A SUM OF RS.20,839/ - ON ACCOUNT OF ALLEGED EXCESS DEPRECATION CLAIMED ON ADDITION S TO FIXED ASSETS AS PER THE IMPUGNED ORDER OR OTHERWISE. 4 . THE APPELLANT CRAVE LEAVES TO ADD, AMEND, ALTER, MODIFY AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING . 9. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.09.2013 DECLARING TOTAL INCOME TO THE TUNE OF RS.1,22,73,530/ - FOR THE A.Y.2013 - 14. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. NOTICES U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, THE ASSESSMENT OF THE ASSESSEE WAS COMPL ETED BY ASSESSING THE TOTAL INCOME IN SUM OF RS.1,81,74,310/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO PARTLY ALLOWED THE CLAIM OF THE ASSESSEE BUT THE ASSESSEE WAS NOT SATISFIED ON THE GROUND MENTIONED ABOVE, THEREFORE, FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 10. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF CLAIM OF RS.1,69,922/ - ON ACCOUNT OF EXPENSES CLAIMED ON SALE OF FLAT. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEE CLAIM E D THE STATIONERY AND XEROX EXPENSES FOR REGISTRATION OF FLAT ETC. IN SUM OF ITA N S O. 3480 & 3481 /M/201 8 A. YS.2012 - 13 & 2013 - 14 5 RS.1,69,922/ - WHICH WAS QUITE JUSTIFIABLE BUT THE AO HAS WRONGLY DECL INED THE CLAIM OF THE ASSESSEE AND WAS WRONGLY CONFIRMED BY CIT(A), THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE REVENUE HAS STRONGLY RELIED UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. THE ASSESSEE HAS DECLARED THE SHORT TERM CAPITAL GAIN ON SALE OF FLAT AMO UNTING OF RS. 45,52,925/ - . THE ASSESSEE CLAIMED THE SUNDRY EXPE NSES LIKES STATIONERY, XEROX, STAMP PAPER AND VARIOUS MISCELLANEOUS EXPENSES INCURRED IN RELATION TO THE DOCUMENT PROCESS AND REGISTRATION PROCESS. HOWEVER, THE ASSESSEE NOWHERE SUBMITTED ANY EV IDENCE IN THIS REGARD. THE CIT(A) HAS ALSO CONFIRMED THE FINDING OF THE AO ON ACCOUNT OF ON THIS FACT THAT THE ASSESSEE FAILED TO PRODUCE THE EVIDENCE IN SUPPORT OF THE CLAIM. ANYHOW, THE TRANSACTION IS NOT IN DISPUTE. THE ASSESSEE RECEIVED THE SHORT TERM CAPITAL GAIN ON SALE OF FLAT OF RS. 45,52,925/ - . THE AO ALSO ADMITTED THE CLAIM OF THE ASSESSEE IN CONNECTION WITH THE BROKERAGE EXPENSES IN SUM OF RS. 1,95,463/ - AND TRANSFER CHARGES OF RS.2,48,878/ - . IT IS ONLY THE MISCELLANEOUS EXPENSES FOR WHICH THE ASSE SSEE FAILED TO FILE THE DETAILS AND EVIDENCE IN THIS REGARD. NO DOUBT, THE ASSESSEE MAY HAVE INCURRED SOME MISCELLANEOUS CHARGES . INTEREST OF JUSTICE, WE FOUND ITS JUSTIFIABLE TO REJECT THE CLAIM OF THE ASSESSEE TO THE EXTENT OF 20% OF THE AMOUNT CLAIM ED I .E. 1,69,922/ - . ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.2 11. ISSUE NO. 2 IS IN CONNECTION WITH THE DISALLOWANCE OF CLAIM IN SUM OF RS. 11,13,812/ - ON ACCOUNT OF FOREIGN TRAVELLING EXPENS ES. THE ASSESSEE DEB ITED AN AMOUNT OF RS.18,85,272/ - ON ACCOUNT OF TRAVELLING EXPENSES. THE AO FOUND THAT THE DIRECTOR EXPENDED AN AMOUNT OF RS.11,13,812/ - ON ACCOUNT OF FOREIGN TRAVELLING . THE AO ASKED TO PROVE THE GENUINENESS OF ITA N S O. 3480 & 3481 /M/201 8 A. YS.2012 - 13 & 2013 - 14 6 CLAIM IN VIEW OF THE PROVISIONS U/S 37 OF THE ACT . THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE SOLD HIS BUSINESS ALONG WITH ALL ITS ONGOING PROJECTS TO M/S. BLUE STAR ELECTRO MECHANI CAL LTD. IN THE A.Y. 2011 - 12 AND IN ORDER TO FIND MORE BUSINESS OPPORTUNITY AND FOR DEVELOPING NEW BUSINESS LIN ES VARIOUS FOREIGN VISITS WERE DONE BY DIRECTORS OF THE APPELLANT COMPANY MR. SUNIL GUPTA AND MRS KAVITA GUPTA. IT IS NOT IN DISPUTE THAT THE ASSESSEE NOWHERE FURNISH ED THE DETAIL IN SUPPORT OF HIS CLAIM. TO MEET OUT THE END OF JUSTICE, WE ARE OF THE VIEW THAT IT WOULD BE JUSTIFIABLE IF WE RESTRICT THE CLAIM TO THE EXTENT OF 20% OF THE EXPENSES CLAIMED. ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.3 12. THIS ISSUE HAS NOT BEEN PRESSED BY THE LD. REPRESENTATIVE O F THE ASSESSEE, THEREFORE, THIS ISSUE IS BEING DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE BEING NOT PRESSED . 13 . IN THE RESULT, THE APPEA L S OF THE ASSESSEE IS HEREBY ORDERED TO BE PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 11 / 2019 SD/ - SD/ - (RAJESH KUMAR ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIA L MEMBER MUMBAI ; DATED 27 / 11 / 2019 V IJAY /SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//