M/s Empire Avenues Pvt Ltd, Hyderabad V. ACIT, Circle 2(2), Hyderabad

ITA 44/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1356 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNA L HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 44/HYD/2012 ASSESSMENT YEAR 2007-08 M/S. EMPIRE AVENUES PVT. LTD., HYDERABAD PAN: AACFE2237M VS. THE ASST. CIT CIRCLE-2(2) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI A. SRINIVAS RESPONDENT BY: SRI M.H. NAIK DATE OF HEARING: 11.03.2013 DATE OF PRONOUNCEMENT: 11.03.2013 O R D E R PER CHANDRA POOJARI, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-III, HYDERABAD DATED 28.11.2011 FOR ASSESSMENT YEAR 2007-08. 2. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WIT H REGARD TO ADDITION A SUM OF RS. 89,89,257 BASED ON THE TDS CERTIFICATE AS THERE IS A DIFFERENCE BETWEEN TD S CERTIFICATE FURNISHED BY THE ASSESSEE AND TURNOVER DECLARED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR A.Y. 2007-08 ON 31.10.2007 DECLARING INC OME AT RS. 60,37,183. THE RETURN WAS PROCESSED U/S. 143(1) OF INCOME-TAX ACT, 1961. LATER ON IT WAS NOTICED THAT, AS PER TH E TDS CERTIFICATE FILED WITH THE RETURN OF INCOME THE ASS ESSEE HAS GOT TOTAL RECEIPTS OF RS. 12,45,08,124. THE TURNOVER D ECLARED BY THE IT A NO. 44/HYD/2012 M/S. EMPIRE AVENUES PVT. LTD. ====================== 2 ASSESSEE IS AT RS. 11,55,18,867. STILL THERE WAS A DIFFERENCE BETWEEN THESE TWO AT RS. 89,89,257 AS COMPARED TO T HE BOOKS OF ACCOUNT AND TDS CERTIFICATE. ASSESSMENT WAS REOPEN ED VIDE NOTICE U/S. 148 DATED 3.8.2009. LATER, THE ASSESSM ENT WAS COMPLETED BY MAKING AN ADDITION OF RS. 89,89,257 TO THE INCOME OF THE ASSESSEE REJECTING THE CLAIM OF THE A SSESSEE THAT THERE WAS SHOWING OF EXCESS TDS BY CONTRACTOR, CONT INENTAL ENGINEERING CORPORATION, NEW DELHI. 4. ON APPEAL, THE CIT(A) OBSERVED THAT THE STORY BUILT UP BY THE ASSESSEE REGARDING THE ISSUE OF EXCESS TDS CERT IFICATE BY THE CONTRACTOR IS IN DOUBT. ACCORDINGLY, HE HAD SUSTAI NED THE ADDITION MADE BY THE ASSESSING OFFICER. AGAINST TH IS, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR REITERATED THE ARGUMENTS MADE BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. HOWEVER, HE PLEADED FOR AN OPPORTUNITY TO RECONCILE THE TDS CERTIFICATE FUR NISHED BY THE ASSESSEE WITH THE TURNOVER DECLARED IN THE BOOKS OF ACCOUNT. 6. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT IN SPITE OF GIVING EFFECTIVE OPPORTUNITIES BY THE LOWER AUTH ORITIES, THE ASSESSEE WAS JUST NOT ABLE TO FURNISH THE CORRECT D ETAILS AND MADE AN ATTEMPT TO MISLEAD THE DEPARTMENT. AS SUCH NO FURTHER OPPORTUNITIES BE GIVEN AND THE ORDER OF THE CIT(A) BE CONFIRMED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATERIAL ON RECORD. THE ASSESSEE PLEADED THAT THERE ARE CERTAIN MISTAKES IN THE ISSUE OF TDS CERTIFICATES BY CONTRACTOR VIZ., M /S. CONTINENTAL ENGINEERING CORPORATION, NEW DELHI AND IF ONE MORE OPPORTUNITY IS GIVEN, THE ASSESSEE WOULD BE IN A POSITION TO RE CONCILE THE SAME. WE ACCEDE TO THE REQUEST OF THE ASSESSEES C OUNSEL IN THE INTEREST OF JUSTICE. ACCORDINGLY, WE REMIT THE ENT IRE ISSUE TO THE IT A NO. 44/HYD/2012 M/S. EMPIRE AVENUES PVT. LTD. ====================== 3 FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO T HE ASSESSEE TO FURNISH CORRECT TDS DETAILS TO THE ASSESSING OFFICE R AND ALSO FILE ALL NECESSARY DETAILS LIKE ASSESSEES LEDGER ACCOUN T IN THE BOOKS OF THE CONTRACTOR AND BANK ACCOUNT DETAILS SO AS TO CAUSE NECESSARY ENQUIRY BY THE ASSESSING OFFICER. EVEN A FTER GIVING OPPORTUNITY BY THE ASSESSING OFFICER, THE ASSESSEE FAILS TO COMPLY WITH THE DIRECTION, THE ASSESSING OFFICER IS AT LIBERTY TO DRAW ADVERSE INFERENCE ON THE ISSUE AND DECIDE THE SAME IN ACCORDANCE WITH LAW. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11 TH MARCH, 2013. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 11 TH MARCH, 2013 TPRAO COPY FORWARDED TO: 1. M/S. EMPIRE AVENUES PVT. LTD., PLOT NO. 9A, ROAD NO . 10C, JUBILEE HILLS, HYDERABAD-500 033. 2. THE ASST. CIT, CIRCLE - 2(2), HYDERABAD. 3. THE CIT(A) - III, HYDERABAD. 4. THE CIT - II, HYDERABAD 5. THE DR A' BENCH, ITAT, HYDERABAD.