ISOLUX CORSAN INDIA ENGINEERING & CONSTRUCTION PVT. LTD., GURGAON V. DCIT, CIRCLE- II, GURGAON

ITA 3809/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9056 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 12-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: TDS
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SH.PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 ISOLUX CORSAN INDIA ENGINEERING & CONSTRUCTION PVT.LTD., 1 ST FLOOR, SPLENDOR TRADE TOWER, SECTOR-65, GOLF COURSE EXTENSION ROAD, HARYANA, GURGAON-122018. PAN-AABCI9232Q VS DCIT, CIRCLE-II, GURGAON. APPELLANT RESPONDENT APPELLANT BY NONE RESPONDENT BY MS. ANIMA BARNWAL, SR DR DATE OF HEARING 03.08.2021 DATE OF PRONOUNCEMENT 03.08.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2012-13 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-1, GURGAON DATED 30.03.2017. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE APPE LLANT'S CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, GUR GAON (HEREINAFTER REFERRED TO AS CIT(A) ERRED BOTH IN LAW AND IN FACT IN CONFIRMING THE ADDITION MADE IN THE ASSESSMENT AND DIRECTING THE A SSESSING OFFICER (HEREINAFTER REFERRED TO AS AO) FOR WITHDRAWAL OF T DS CREDIT OF RS.2,51,23,430/- OUT OF THE TOTAL TDS CREDIT OF RS. 4,82,24,056/- CLAIMED BY APPELLANT. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE LD. CIT(A) ERRED BOTH IN LAW AND IN FACT IN CONFIRM ING ADDITION ON ACCOUNT OF TRANSACTIONS AGGREGATING TO RS.1,95,78,754/- MAD E WITH CERTAIN PARTIES ONLY ON THE BASIS THAT NOTICES UNDER SECTION 133(6) ISSUED BY HIM WERE ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 PAGE | 2 ALLEGED TO HAVE NOT BEEN RESPONDED TO AND ALSO WITH OUT EXAMINING AND CORRELATING ALL THE RELEVANT DETAILS RELATED TO TRA NSACTIONS WITH THOSE PARTIES FILED BY THE APPELLANT BEFORE HIM DURING TH E COURSE OF APPELLANT PROCEEDINGS. 2.1 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE F ACT WHILE CONFIRMING THE ABOVE ADDITION THAT ALL THE EVIDENCES IN RESPECT OF THE TRANSACTIONS WITH ABOVE PARTIES WERE DULY FILED BY THE APPELLANT DURI NG THE COURSE OF ASSESSMENT /APPELLANT PROCEEDINGS, HOWEVER SAME HAD NOT CONSIDERED WHILE CONFIRMING THE ABOVE ADDITION. 2.2 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE F ACT WHILE CONFIRMING THE ABOVE ADDITION THAT APPELLANT HAS ALSO FURNISHED AL L THE ADDITIONAL DOCUMENTARY EVIDENCES AS REQUIRED BY HIM DURING THE COURSE OF APPELLANT PROCEEDINGS TO SUBSTANTIATE THE GENUINENESS OF TRAN SACTIONS WITH THESE ALLEGED PARTIES. 2.3 THAT THE LD. CIT(A) GROSSLY ERRED IN CONFIRMIN G THE ABOVE ADDITION ON SURMISES AND CONJECTURES AND IRRELEVANT CONSIDERATI ONS AND IN COMPLETE DISREGARD TO MATERIAL ON RECORD AND THE EVIDENCES F ILED BY THE APPELLANT. 3. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE LD. CIT(A) ERRED BOTH IN LAW AND IN FACT IN CONFIRM ING ADDITION OF RS. 1,95,78,754/- MADE WITH CERTAIN PARTIES ON THE BASI S OF THE FACTS OF APPELLANT'S CASE IN THE PRECEDING ASSESSMENT YEAR W HICH DO NOT HAVE ANY RELATION WITH THE FACTS OF ASSESSMENT YEAR UNDER CO NSIDERATION. 3.1 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE L EGAL POSITION WHILE CONFIRMING THE ABOVE ADDITION THAT EVERY ASSESSMENT YEAR IS A DIFFERENT ASSESSMENT YEAR AND FACTS OF ONE ASSESSME NT YEAR CANNOT BE THE BASIS OF DISALLOWANCE IN ANOTHER ASSESSMENT YEAR AND SPECIFICALLY WHERE FACTS OF BOTH ASSESSMENT YEARS A RE TOTALLY DIFFERENT. 3.2 THAT THE LD. CIT(A) GROSSLY FAILED TO APPRECIAT E THE FACT WHILE CONFIRMING THE ABOVE ADDITION THAT FACTS OF ASSESSM ENT YEAR ON THE ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 PAGE | 3 BASIS OF WHICH ADDITION WAS CONFIRMED WERE TOTALLY DIFFERENT FROM THE FACTS OF THE ASSESSMENT YEAR UNDER CONSIDERATIO N. 3.3 THAT THE LD. CIT(A) ARBITRARY PRESUMED WHILE C ONFIRMING THE ABOVE ADDITION THAT APPELLANT COULD NOT ESTABLISH T HE GENUINENESS OF TRANSACTIONS MADE WITH ALLEGED PARTIES AS RETURN OF INCOME OF ALLEGED PARTIES UNDER CONSIDERATION HAVE NOT FURNIS HED AND FAILED TO APPRECIATE THE FACT THAT APPELLANT HAS FURNISHED AL L THE INCOME TAX DETAILS E.G. PAN NO, INCOME TAX WARD CIRCLE, TDS ET C. OF THESE PARTIES. 3.4 THAT THE LD. CIT(A) GROSSLY ERRED IN CONFIRMIN G THE ABOVE ADDITION ON SURMISES AND CONJECTURES AND IRRELEVANT CONSIDERATIONS AND IN COMPLETE DISREGARD TO MATERIAL ON RECORD AND THE EVIDENCES FILED BY THE APPELLANT. 4. THAT ON FACTS AND IN CIRCUMSTANCES OF THE APPELL ANT'S CASE THE LD. CIT(A) ERRED BOTH IN LAW AND IN FACT IN DIRECTING A O FOR WITHDRAWING TDS CREDIT OF RS.2,51,23,430/- AS SAME IS BEYOND THE PO WER OF LD. CIT(A). 4.1 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE F ACT WHILE DIRECTING AO FOR WITHDRAWING OF ABOVE TDS CREDIT THAT TDS CRE DIT UNDER CONSIDERATION WAS AN INDEPENDENT AND DIFFERENT ISSU E WHICH WAS NEITHER SUBJECT MATTER OF APPEAL NOR IT WAS ISSUE O F ASSESSMENT. 4.2 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE L EGAL POSITION WHILE DIRECTING AO FOR WITHDRAWING OF ABOVE TDS CREDIT TH AT LD. CIT(A) IS NOT EMPOWERED TO WITHDRAW ANY BENEFIT WHICH WAS NOT THE SUBJECT MATTER OF ASSESSMENT. 4.3 THAT THE LD. CIT(A) FAILED TO APPRECIATE THE L EGAL POSITION WHILE DIRECTING AO FOR WITHDRAWING OF ABOVE TDS CREDIT TH AT WITHDRAWING ANY BENEFIT WHICH WAS NOT ARISE FROM THE ASSESSMENT ORDER OR WHICH WAS OUTSIDE THE SCOPE OF ASSESSMENT ORDER IS BEYOND THE POWER OF LD. CIT(A) ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 PAGE | 4 4.4 THAT THE LD. CIT(A) GROSSLY ERRED IN WITHDRAWI NG ABOVE TDS CREDIT ON SURMISES AND CONJECTURES AND IRRELEVANT C ONSIDERATIONS AND IN COMPLETE DISREGARD TO LEGAL AND FACTUAL POSI TION OF APPELLANT'S CASE. 5. THAT WITHOUT PREJUDICE TO ABOVE, IN VIEW OF FACT S AND CIRCUMSTANCES OF THE APPELLANT'S CASE LD. CIT(A) ERRED BOTH IN LA W AND IN FACTS IN DIRECTING AO TO WITHDRAW TDS CREDIT OF RS.2,51,23,430/- WITHO UT EXAMINING THE EXPLANATION/ DETAILS/EVIDENCES SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS. 5.1 THAT THE LD. CIT(A) HAS GROSSLY ERRED IN DIRECT ING AO TO WITHDRAW ABOVE TDS CREDIT WITHOUT CONSIDERING THE F ACT THAT THE APPELLANT HAS CLAIMED THE SAME ON THE BASIS OF TDS CERTIFICATE ISSUED BY CLIENTS AND TDS CREDIT REFLECTED IN 26AS. 5.2. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN DIREC TING AO TO WITHDRAW ABOVE TDS CREDIT WITHOUT CONSIDERING THE F ACT THAT SECTION 199 IS NOT A CHARGING SECTION AND IT CONTAINS ONLY MACHINERY PROVISIONS RELATED TO TDS CREDIT. 5.3. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN DIREC TING AO TO WITHDRAW ABOVE TDS CREDIT WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAS RECOGNIZED THE INCOME AS PER THE METH OD OF ACCOUNTING CONSISTENTLY FOLLOWED BY HIM AND THERE I S NO RELATION BETWEEN THE INCOME RECOGNITION AND TDS CLAIMED. 5.4. THAT THE LD.CIT(A) HAS GROSSLY ERRED IN WITHDR AWING CREDIT OF TDS ON SURMISES, CONJECTURES AND IRRELEVANT CONSIDE RATIONS AND IN COMPLETE DISREGARDS TO LEGAL POSITION, MATERIAL ON RECORD AND THE EVIDENCES FILED BY THE APPELLANT. 6. THAT THE ABOVE SAID GROUNDS ARE WITHOUT PREJUDI CE TO ONE OTHER. 7. THAT THE ABOVE SAID UPHOLDING OF ADDITIONS AND DIRECTING TO ASSESSING OFFICER TO WITHDRAW TDS CREDIT ARE ARBITR ARY, CAPRICIOUS AND WRONG, THESE ARE BASED ON CONJECTURES AND SURMISES. ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 PAGE | 5 2. NO ONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TI ME OF HEARING. THE NOTICE OF HEARING WAS SENT THROUGH SPEED POST TO TH E ADDRESS PROVIDED BY THE ASSESSEE AT ISOLUX CORSAN INDIA ENGINEERING & CONSTRUCTION PVT .LTD., 1 ST FLOOR, SPLENDOR TRADE TOWER, GOLF COURSE EXTENSION ROAD, SECTOR-65, GURGAON- 122018 , IS RETURNED BACK WITH REMARK CLOSED. THE NOTIC E IS RETURNED BACK UNSERVED. THE ASSESSEE HAD NOT FURNISHED ANY OTHER CHANGED ADDRESS. 3. LD. SR.DR SUBMITTED THAT APPEAL OF THE ASSESSEE BE DISMISSED. 4. WE HAVE HEARD THE LD. SR. DR AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. IN THESE FACTS AND CIRCUMSTANCES, IT APPEAR ED THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE PRESENT APPEAL. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICES THEREFORE, FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS B. N. BHATTACHARYA (1997) 118 ITR 461 (SC) AND DECISION OF DELHI TRIBUNAL IN THE CASE OF CIT VS MULTIPLAN INDIA PVT. LTD. REPORTED IN 38 ITD 320 (DEL.). WE HEREBY DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF PROSECUTION. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING ON 03 RD AUGUST, 2021. SD/- SD/- (PRASHANT MAHARISHI) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIA L MEMBER *AMIT KUMAR* ITA NO.3809/DEL/2017 ASSESSMENT YEAR : 2012-13 PAGE | 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI