ADDL CIT 25(2), MUMBAI V. SANDEEP SURESH VAIDYA, MUMBAI

ITA 4388/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4210 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , , BEFORE S/SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL ME MBER ./ I.T.A. NO. 4388 /MUM/ 201 1 ( / ASSESSMENT YEAR : 200 8 - 09 ) ASSTT.COMMISSIONER OF INCOME TAX - 25(2), C - 11, 1ST FLOOR , ROOM NO.108, PRATYAKSHAKAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. / VS. SHRI S ANDEEP SURESH VAIDYA, 5/2, AKSHATA, OFF, AAREY ROAD, NEXT TO SANMITRA SCHOOL, GOREGAON (E), MUMBAI - 400063 ./ PAN : ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AADPV5530D / APPELLANT BY : SHRI PRAMOD NIKALJE / RESPONDENT BY : SHRI PRAKASH PANDIT / DATE OF HEARING : 24.11 2015 / DATE OF PRONOUNCEMENT : 28. 1 . 201 6 O R D E R PER SANDEEP GOSAIN, JM THIS IS AN APPEAL FILED BY THE REVENUE CHALLENGING THE ORDER DATED 15.3.2011 PASSED BY THE LD. CIT(A) - 35 , MUMBAI FOR THE ASSESSMENT YEAR 200 8 - 09. 2. THE FACTS OF THE CASE LEADING TO THE DISPUTE ARE THAT THE ASSESSEE FILED R ETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,05,67,630/ - ON ITA NO. 4388 / MUM/ 201 1 2 6.10.2008. THE ASSESSEE IS INVOLVED IN THE TURNKEY PROJECT IN MAHARASHTRA AND OTHER STATES FOR CORPORATE HOUSES. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SHOWN RECEIPTS OF RS.9,59,71, 106/ - IN THE PROFIT AND LOSS ACCOUNT AGAINST THE NAME OF M/S DESIGN PLUS PROJECT AND THE ASSESSEE CLAIMED TDS ON THE AMOUNT OF RS.10,83,93,396/ - . THEREFORE, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS SHOWN LESS CONTRACT RECEIPT BY RS.1,24,22,290/ - WHE N COMPARED TO TDS CERTIFICATES. THE AO CALLED FOR THE ASSESSEE TO SHOW THE REASONS FOR THIS DIFFERENCE. THE ASSESSEE EXPLAINED THAT IN THE BUSINESS CARRYING OUT BY THE ASSESSEE, IT RECEIVED ADVANCE AMOUNT FIRST AND RECONCILIATION IS BEING DONE AFTER COM PLETION OF WORK ON VERIFICATION BY THE PROJECT AUTHORITIES. THEREFORE, THIS AMOUNT HAS BEEN SHOWN IN THE RECEIPT BUT ACTUAL WORK IS LESS BY RS.1,24, 22,290/ - . THE AO ALSO ASKED THE ASSESSEE THAT WHY THE TOTAL TDS AMOUNT SHOWN BY T HE ASSESSEE SHOULD NOT B E TREATED AS ACTUAL RECEIPT. THEREFORE, THE ACTUAL TOTAL RECEIPT ACCOUNTED BY THE ASSESSEE IS RS.4,19,89,249/ - BUT TDS CREDIT SHOWN WAS ONLY ON RS.1,77,47,025/ - . THE EXPLANATION TENDERED BY THE ASSESSEE DID NOT FIND CONVINCING BY THE ASSESSING OFFICER AND THEREFORE HE ADDED THE SUM OF RS.2,42,42,224/ - TO THE TOTAL CONTRACT RECEIPT. AGGRIEVED BY THIS DECISION, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A), WHO DELETED THE ADDITION MADE BY THE AO. 3. BEFORE US, THE LD.AR SUBMITTED THAT THE ASSESSEE I S IN THE SAME BUSINESS FROM 2.2.2006 AND IT UNDERTAKES VARIOUS TYPES OF CONTRACTS. TO UNDERTAKE THE CONTRACT, IT RECEIVES SOME PORTION OF CONTRACT AMOUNT AS AN ADVANCE AND AFTER COMPLETION OF PARTICULAR WORK IT RECONCILES AMOUNT AND WORK PERFORMED. DURI NG THE PROCESS, TDS SHOWN ON ADVANCE AMOUNT RECEIVED FROM DIFFERENT PARTIES AND AFTER COMPLETION OF WORK ACTUAL RECEIPT SHOWN IN THE PROFIT AND LOSS ACCOUNT WOULD BE SETTLED. THIS EXPLANATION WAS TENDERED BEFORE THE AO BUT THE AO DID NOT ACCEPT THE SAME. HE ALSO DRAWN SUPPORT FROM THE ORDER OF LD. CIT(A) AND SUBMITTED THAT THE ITA NO. 4388 / MUM/ 201 1 3 LD.CIT(A) HAS MADE DETAILED DISCUSSION IN THE ORDER. THE LD. AR FURTHER SUBMITTED THAT TDS IS TO BE DEDUCTED ONLY ON THE ACTUAL BASIS AND NOT ON PRESUMPTIONS AND ASSUMPTIONS. IN ASSESSEES CASE THE ASSESSEE HAS FOLLOWED THE PREVIOUS METHODS AS HAS BEEN FOLLOWED BY HIM FROM INCEPTION. THE AO HAS ALSO NOT POINTED OUT ANY DEFECT IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE. THE LD. AR SUBMITTED THAT THE LD.CIT(A) WHILE ADJU DICATING THE ISSUE IN FAVOUR OF THE ASSESSEE HAS DRAWN SUPPORT FROM THE FROM THE CASE OF SMT.VARSHA G SALUNKE V/S DCIT (281 ITR 55)(AT). THIS DECISION HAS NOT BEEN APPEALED BEFORE THE HIGHER FORUM BY THE REVENUE AND HAS REACHED FINALITY. IN THE SAID O RDER THE LD.CIT(A) HAS ALSO DISCUSSED THE PROVISIONS OF SECTION 199 OF THE ACT AND THE POWER OF THE ASSESSING OFFICER. 4 . ON THE CONTRARY, THE LD.DR REITERATED THE FACTS OF THE CASE AS REFERRED BEFORE THE AUTHORITIES BELOW AND STRONGLY RELIED ON THE ORD ER OF AO. 5 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD AVAILABLE BEFORE US. WE FIND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SHOWN RECEIPTS OF RS.9,59,71,106/ - IN THE PROFIT AND LOSS ACCOUNT AGAINST THE NAME OF M/S DESIGN PLU S PROJECT AND THE ASSESSEE CLAIMED TDS ON THE AMOUNT OF RS.10,83,93,396/ - . THEREFORE, THE AO WAS OF THE VIEW THAT THE ASSESSEE HAS SHOWN LESS CONTRACT RECEIPT BY RS.1,24,22,290/ - WHEN COMPARED TDS CERTIFICATES. WE FIND THAT ASSESSEE RECEIVES ADVANCE AM OUNT OF CONTRACTED AMOUNT AND ADJUST THE SAME AFTER COMPLETION OF WORK. THEREFORE, IT IS BOUND TO BE A DIFFERENCE IN THE ACTUAL WORK DONE AND CONTRACT RECEIPT. BEFORE US ALSO THE LD. DR DID NOT BRING ANY MATERIAL TO SHOW THAT THE DECISION OF THE LD. C IT(A) IS CONTRARY TO THE PROVISIONS OF ACCOUNTING STANDARD AS WELL AS THE PROVISIONS OF INCOME TAX ACT. THEREFORE, WE ARE OF THE VIEW THE LD. CIT(A) IS CORRECT IS HIS OPINION AND ITA NO. 4388 / MUM/ 201 1 4 HENCE , THERE IS NO NEED TO INTERFERE WITH THE JUDICIOUS ORDER PASSED BY LD.CI T(A). THEREFORE, WE CONFIRM HIS ORDER. 6 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 28TH , JAN , 201 6 . SD SD ( , / RAJENDRA ) ( / SANDEEP GOSAIN ) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI ; DATED . 28TH JAN ,201 6 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MU MBAI