ACIT, New Delhi V. M/s. Vibhor Builders Pvt. Ltd., Delhi

ITA 4313/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65716 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2003-2004
• Appeal Filed On: 08-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Assessee Lawyers: RAJAN MALIK
• Keywords: Audit objection

Judgement Text

ITA NO. 4313/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4313/DEL/2012 A.Y. : 2003-04 ACIT, CIRCLE 17(1), C.R. BUILDING, NEW DELHI VS. M/S VIBHOR BUILDERS PVT. LTD., S-551, SCHOOL BLOCK, SHAKARPUR, DELHI 110 092 (PAN/GIR NO. : AABCV2953P) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. RAJAN MALIK, ADV. DEPARTMENT BY : SMT. SHUMANA SEN, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM PER SHAMIM PER SHAMIM PER SHAMIM YAHYA: AM YAHYA: AM YAHYA: AM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIX, NEW DEL HI DATED 27.6.2012 PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED READ AS UNDER:- I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN DELETING THE ADDITION OF ` 1,96,09,782/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE BETWEEN THE GROSS RECEIPTS A S PER TDS CERTIFICATES AND THOSE AS DECLARED BY THE ASSESSEE. ITA NO. 4313/DEL/2012 2 II) THE APPELLANT CRAVES FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) O F APPEAL AT ANY TIME BEFORE OR DURING THE HEARING O F APPEAL. 3. IN THIS CASE THE ASSESSING OFFICER OBSERVED TH AT AS PER THE RECORDS AND TDS CERTIFICATE FURNISHED WITH THE ASSES SMENT RECORDS, GROSS RECEIPT WAS ` 7,07,71,920/- AS AGAINST ` 5,11 ,62,138/- AS SHOWN IN P&L ACCOUNT OF THE ASSESSEE. THEREFORE, ASSESS ING OFFICER HELD THAT THE ASSESSEE HAS WRONGLY UNDERSTATED ITS RECEI PT, THEREBY FAILING TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. ACCO RDINGLY, ASSESSING OFFICER ADDED A SUM OF ` 1,96,09,782/-. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (A) NOTED THAT ASSESSEES COUNSEL SUBMITTED THAT THERE W AS NO VARIATION AS ALLEGED BY THE ASSESSING OFFICER AND THE FOLLOW ING RECONCILIATION WAS SUBMITTED BEFORE THE LD. COMMISSIONER OF INCOME TA X (A). TOTAL TURNOVER AND OTHER INCOME: (AS PER TDS CERTIFICATES) A. CONTRACT RECEIPT B. INTEREST INCOME AND OTHER SALE TOTAL 7,07,71,920/- 7,83,319/- (RS.) 7,15,55,239/- LESS: ADVANCE RECEIVED (AS PER CONFIRMATION LETTER ENCLOSED FROM RESPECTIV E DEPTT.) A. U.P. JAL NIGAM, UNIT 46, NOIDA B. U.P. JAL NIGAM, UNIT 31, GZB C. U.P. JAL NIGAM, BAGHPAT TOTAL ADVANCE AS SHOWN IN BALANCE SHEET 1,13,00,000/- 50,93,102/- 40,00,000/- 2,03,93,102/- TURNOVER OFFERED FOR TAXATION ADD: SALE OF SHARES CONSIDERED SEPARATELY TOTAL TURNOVER SHOWN IN P&L ACCOUNT 5,11,62,137/- 1,08,730/- 5,12,70,868/ 5,12,70,868/ 5,12,70,868/ 5,12,70,868/- -- - 4.1 ASSESSEE FURTHER SUBMITTED BEFORE THE LD. COMMISS IONER OF INCOME TAX (A) THAT THE DIFFERENCE AROSE MAINLY BEC AUSE CERTAIN ITA NO. 4313/DEL/2012 3 PORTION OF THE RECEIPTS SUBJECTED TO TDS WAS OFFERED AS INCOME IN RESPECT OF THE WORK COMPLETED AND BILLED AND THE BA LANCE AMOUNTS WERE SHOWN AS ADVANCES WHICH WERE DULY REFLECTED IN THE BALANCE SHEET EITHER UNDER THE HEAD SECURED LOAN OR UNDER THE HEAD CURRENT LIABILITIES AND PROVISION. IT WAS FURTHER SUBMIT TED THAT ASSESSING OFFICER HAS NOT MADE ANY ADVERSE COMMENTS IN THE RE MAND REPORT IN THIS REGARD. CONSIDERING THESE SUBMISSIONS, LD. COMMISSIONER OF INCOME TAX (A) OBSERVED THAT HE WAS OF THE OPINION THAT THERE IS NO SUPPRESSION OF RECEIPTS AND THE ADDITION OF ` 1,96, 09,782/- WAS DELETED. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. WE FIND THAT LD. COMMISSIONER OF INCOME TAX (A) HAS CLEA RLY GIVEN A FINDING THAT THE ASSESSEE HAS SUBMITTED ITS RECONC ILIATION OF THE TOTAL TURNOVER, AS PER TDS CERTIFICATES AND THAT AS PER TH E BOOKS OF ACCOUNT. BASED ON THE RECONCILIATION, THE ADDITION IN THIS C ASE IS NOT SUSTAINABLE. FURTHER LD. COUNSEL OF THE ASSESSEE HAS PRODUCED THE FOLLOWING LETTER ISSUED VIDE F.NO. DCIT/CIR-17(1)/AUDIT/2006-07/925 DA TED 26.3.2007:- TO, THE DY. DIRECTOR OF INCOME TAX, O/O DG & ACR, ACR BUILDING, NEW DELHI SIR, SUB:- AUDIT OBJECTION IN THE CASE OF VIBHOR BUILDE RS (P) LTD. ASSTT. YEAR 2003-04 SUBMISSION OF REPLY REG. KINDLY REFER TO AUDIT MEMO NO. 11 DATED 23.3.2007 ISSUED IN THE ABOVE NOTED CASE. ITA NO. 4313/DEL/2012 4 AS PER THE OBJECTION RAISED BY THE AUDIT, THE GRO SS RECEIPTS OF THE ASSESSEE COMPANY FOR THE YEAR UNDER CONSIDERATION, AS PER TDS CERTIFICATES, WERE ` 7,07 ,71,920/- AS AGAINST ` 5,11,62,138/- SHOWN IN THE P&L ACCOUNT AN D AS A RESULT THE INCOME OF THE ASSESSEE WAS UNDER ASSESSE D BY ` 1,96,09,782/-. IN THIS REGARD, IT IS SUBMITTED THA T DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE SAID DISCREPANCY IN REGARD TO GROSS REC EIPTS AS PER TDS CERTIFICATES AND AS DECLARED IN THE PROFIT AND LOSS ACCOUNT. IN RESPONSE TO THAT THE ASSESSEE COMPANY VIDE ITS R EPLY DATED 9.3.06 HAS RECONCILED THE RECEIPTS DECLARED WITH TH E GROSS RECEIPTS AS PER TDS CERTIFICATES. AS PER THAT RECO NCILIATIONS OUT OF GROSS RECEIPTS AS PER TDS CERTIFICATES, A SUM OF ` 1,63,93,102/- WAS RECEIVED AS ADVANCE FROM U.P. JAL NIGAM AND ` 40,00,000/- WAS RECEIVED AS ADVANCE FROM C & D S UNIT OF UP JAL NIGAM, BAGHPAT AND THE SAME WERE DULY REFLECTE D IN THE BALANCE SHEET UNDER THE HEAD SECURED LOAN. THE ASS ESSEE HAS ALSO FURNISHED THE CONFIRMATIONS IN THIS REGARD FRO M THE RESPECTIVE DEPARTMENTS CONFIRMING THE ADVANCE GIVEN TO THE ASSESSEE VIDE ITS LETTER DATED 17.3.06. THE ASSESS MENT WAS FRAMED AFTER CONSIDERING THE RECONCILIATION STATEME NT AND CONFIRMATIONS FURNISHED BY THE ASSESSEE. IN VIEW OF THE FOREGOING THE OBJECTION RAISED BY THE AUDIT AS TO THE DIFFERENCE IN THE GROSS RECEIPTS AS PER TDS CERTIFICATES AND AS DECLARED IN THE P&L ACCOUNT MAY KINDLY BE TREATED AS SETTLED. YOURS FAITHFULLY, SD/- (SUBHASH SAHNI) (SUBHASH SAHNI) (SUBHASH SAHNI) (SUBHASH SAHNI) DY. COMMISSIONER OF INCOME DY. COMMISSIONER OF INCOME DY. COMMISSIONER OF INCOME DY. COMMISSIONER OF INCOME TAX, TAX, TAX, TAX, CIR. 17(1), NEW DELHI CIR. 17(1), NEW DELHI CIR. 17(1), NEW DELHI CIR. 17(1), NEW DELHI 7. CONSIDERING THE ABOVE, IN OUR CONSIDERED OPINION , THE VARIATION IN THE RECEIPTS AS PER ACCOUNTS AND THAT AS PER THE TDS CERTIFICATES IS ITA NO. 4313/DEL/2012 5 COGENTLY EXPLAINED. HENCE, THE ADDITION IS NOT SUS TAINABLE. UNDER THE CIRCUMSTANCES, WE FIND THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) AND HENCE, WE AFFIRM THE SAME. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/10/2012. SD/- SD/- [ [[ [U.B.S. BEDI U.B.S. BEDI U.B.S. BEDI U.B.S. BEDI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 19/10/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES