ROHIT MOHIT CONSTRUCTION CORPORATION, MUMBAI V. CIT 24, MUMBAI

ITA 3574/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8124 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 3574/MUM/2014 ASSESSMENT YEAR: 2009-10 M/S. ROHIT MOHIT CONSTRUCTION VS. CIT 24 CORPORATION, GALA NO. 8, NAHUR UDYOG BANDRA KURLA COMPLEX, INDUSTRIAL ESTATE, M.M. MALAVIYA RD, MUMBAI 400 051 MULUND WEST, MUMBAI 400 080 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY: SHRI PURUSHOTTAM KUMAR, DR DATE OF HEARING : 05/12/2016 & 10/03/2017 DATE OF PRONOUNCEMENT: 14/03/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2009-10. THE APPEAL IS DIRECTED AGAINST THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 (THE ACT) PASSED BY THE COMMISSIONER OF INCOME TAX (CIT) 24, MUMBAI. 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS A PPEAL IS THAT THE CIT HAS ERRED IN LAW AS WELL AS ON FACTS BY PASSING ORDER U/S 263 OF THE ACT SETTING ASIDE THE ASSESSMENT ORDER U/S 143( 3) DATED 22/12/2011; AND DIRECTING THE ASSESSING OFFICER (AO ) TO REDO THE ASSESSMENT. ITA NO. 3574/MUM/2014 2 3. IN A NUTSHELL, THE FACTS ARE THAT THE CIT, ON VE RIFICATION OF THE ASSESSMENT RECORD AND THE ASSESSMENT ORDER, FOUND T HE FOLLOWING DISCREPANCIES: IT IS SEEN THAT THE SALES HAVE BEEN SHOWN AT RS. 10,50,87,317/- IN THE PROFIT AND LOSS ACCOUNT. HOWEVER, FROM THE TDS CERTIFICATES , IT IS SEEN THAT THE ASSESSEE RECEIVED CONTRACT RECEIPTS AMOUNTING TO RS. 1,58,01,724/- FROM THE FOLLOWING THREE PARTIES IN ADDITION TO WHAT IS CREDITE D TO THE PROFIT AND LOSS ACCOUNT. SL NO. NAME OF THE PARTY AMOUNT PAID BY PARTIES TO ASSESSEE AS PER FORM NO. 16A BUT NOT INCLUDED IN P&L A/C (RS.) TDS AMOUNT (RS.) 1 NEPTURE VENTURES & DEVELOPERS P LTD. 89,43,683/- 2,02,662/- 2 NEPTURE CONSTRUCTION 67,54,536/- 1,53,038/- 3 NEPTUNE DEVELOPERS & CONSTRUCTION 1,04,505/- 2,152/- TOTAL 1,58,01,724/- 3,75,852/- IT IS ALSO OBSERVED THAT THE TDS CREDIT AVAILED BY T HE ASSESSEE AMOUNTING TO RS. 27,13,168/- INCLUDES THE TDS AMOUNT WHICH REMAINED TO BE OFFERED FOR TAXATION, AS THE SAME WERE NOT CREDITED TO THE PROFI T AND LOSS ACCOUNT. THIS HAS RESULTED IN ESCAPEMENT OF INCOME TO THE EXT ENT OF RS. 1,58,01,724/- 3.1 IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED BY THE CIT ON THE ABOVE ISSUES, THE AR OF THE ASSESSEE FILED A WRITTE N SUBMISSION WHICH HAS BEEN EXTRACTED BY THE CIT AT PAGE 2 5 OF HIS ORDER DATED 21.03.2014. HAVING GONE THROUGH THE SAID SUBMISSION , THE CIT OBSERVED THAT THE INCOME MENTIONED IN THE TDS CERTI FICATES ARE MORE THAN THE INCOME ADMITTED IN THE PROFIT & LOSS ACCOU NT. THE AO SHOULD HAVE OBTAINED ALL THE DETAILS FROM THE ASSESSEE OR MADE ENQUIRIES WITH THE DEDUCTORS AND EXAMINED WHETHER THE INCOME TAXABLE IN THIS YEAR ARE ADMITTED IN THE PROFIT & LOSS ACCOUNT. THE AO FAILED TO DO SO. THEREFORE, THE CIT PASSED AN ORDER U/S 263 SETTING ASIDE THE ORDER PASSED BY THE AO. HE DIRECTED THE AO TO REDO THE AS SESSMENT TO ITA NO. 3574/MUM/2014 3 RECONCILE THESE TWO FIGURES AND ASSESS THE CORRECT INCOME FOR THE IMPUGNED ASSESSMENT YEAR. 3.2 NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LE ARNED DR SUPPORTS THE ORDER PASSED BY THE CIT, THUS STATING THAT THERE IS SUBSTANTIAL DIFFERENCE OF RS. 1,58,01,714/- IN THE AMOUNT PAID BY THE PARTIES TO THE ASSESSEE AS PER FORM NO. 16A BUT NOT INCLUDED IN PROFIT & LOSS ACCOUNT. HE ALSO POINTS OUT THAT THE ASSESSE E HAS CLAIMED CREDIT OF TDS OF RS. 3,75,852/- ON THE ABOVE DIFFERENTIAL AMOUNT OF RS. 1,58,01,724/-. 4. WE HAVE PERUSED THE RELEVANT MATERIAL ON RECORD. WE HAVE ALSO HEARD THE LEARNED DR ON THE ABOVE ISSUE. THE FACT R EMAINS THAT THE AO HAS NOT VERIFIED IN THE INSTANT CASE THE AMOUNT PAI D BY THE PARTIES TO THE ASSESSEE REFLECTED IN FORM NO. 16A BUT NOT INCL UDED IN THE PROFIT & LOSS ACCOUNT. THE SAME COMES TO RS. 1,58,01,724/- . ON THE OTHER HAND, THE ASSESSEE HAS CLAIMED CREDIT OF TDS OF RS. 3,75,852/- ON THE ABOVE AMOUNT. 4.1 IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 109 TAXMAN 66 (SC), IT HAS BEEN HELD BY THE HON'BLE SUP REME COURT THAT WERE THE ASSESSING OFFICER HAD ACCEPTED ENTRY IN ST ATEMENT OF ACCOUNT FILED BY THE ASSESSEE, IN ABSENCE OF ANY SUPPORTING MATERIAL WITHOUT MAKING ANY ENQUIRY, EXERCISE OF JURISDICTION BY THE COMMISSIONER U/S 263(1) WAS JUSTIFIED. THE RATIO LAID DOWN IN THE AB OVE CASE SQUARELY APPLIES TO THE PRESENT ONE. IN VIEW OF THE ABOVE WE HOLD THAT THE CIT HAS RIGHTLY PASSED ORDER U/S 263 IN THE PRESENT CAS E. 5. IN THE RESULT, THE APPEAL IS DISMISSED. ITA NO. 3574/MUM/2014 4 ORDER PRONOUNCED IN THE OPEN COURT ON 14/03/2017 SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI; DATED: 14/03/2017 BISWAJIT, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI