MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY, MUMBAI V. CIT (TDS), MUMBAI

ITA 4443/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2867 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Maximum Marginal Rate

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , , !' #$, % , & BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.4443/M/13 ( %' ( / ASSESSMENT YEAR: 2008-09) M/S. MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY FINANCE CONTROLLER, MHADA, GRIHA NIRMAN BHAVAN, 4 TH FLOOR, BANDRA (EAST) MUMBAI - 400051 ' / VS. CIT (TDS) CHARNI ROAD, AYURVEDA MITTAL HOSPITAL, MUMBAI - 400002 ./ ./ PAN/GIR NO. : AAAJM0344H ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 18.03.2016 !' /DATE OF PRONOUNCEMENT: 22.06.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 26.03.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (TDS), MUMBAI [HEREINAFTER REFERRED TO AS THE LEARNED CIT (TDS)] RELEVANT TO THE A.Y.2008-09. ASSESSEE BY: SHRI M. SUBRAMANIAN DEPARTMENT BY: SHRI N.P.SINGH ITA NO.4443/MUM/13 A.Y.2008-09 2 2. HEARD ON THE POINT OF CONDONATION OF DELAY. THE APPEAL HAS BEEN FILED 7 DAYS DELAY ON ACCOUNT OF THE REASON TH AT THE APPELLANT IS GOVERNMENT OF MAHARASHTRA AND THE MEETING WAS NOT P ROPERLY HELD ON THE DATE FIXED AND THE PERSON WHO WAS LOOKING INTO THE MATTER MR. INGLE WAS ON LEAVE. THE APPLICATION IS SUPPORTED B Y AFFIDAVIT. AS SUFFICIENT REASONS HAVE BEEN EXPLAINED, MOREOVER, T HE DELAY WAS NOT SO LONG, THEREFORE, WE ARE OF THE VIEW THAT THE MAT TER OF CONTROVERSY SHOULD BE HEARD ON MERITS; THEREFORE, WE ALLOWED TH E APPLICATION FOR THE CONDONATION OF DELAY. 3. THE ASSESSEE IS THE STATE GOVERNMENT BODY ENGAGE D IN PROVIDING AFFORDABLE HOUSING TO VARIOUS ECONOMIC SE CTIONS IN THE STATE OF MAHARASHTRA. SURVEY U/S.133A OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WAS CONDUCTED IN THIS CASE ON 04.0 2.2011. SUBSEQUENTLY, ORDER U/S.201(1)/201(1A) OF THE ACT W AS PASSED ON 31.03.2011, RAISING A DEMAND OF RS.1,34,12,732/- ON ACCOUNT OF NON DEDUCTION AND SHORT DEDUCTION OF TAX. A PROPOSAL U /S.263 OF THE ACT WAS RECEIVED IN THIS OFFICE ON 11.11.2011 FROM ACIT (TDS)2(1), MENTIONING THAT PAYMENTS OF RS.77,66,882/- AND RS.1 1,04,000/- MADE TO MMRDA ON ACCOUNT OF LEASE PREMIUM WERE NOT CONSI DERED IN THE ORDER U/S.201(1)/201(1A) DATED 31.03.2011 AND REQUE STED TO SET ASIDE THE ORDER. THEREAFTER, A SHOW CAUSE NOTICE DATED 1 5.03.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE, ASKING IT TO S HOW CAUSE AS TO WHY THE ORDER U/S.201(1) PASSED BY THE ASSESSING OFFICE R SHOULD NOT BE SET ITA NO.4443/MUM/13 A.Y.2008-09 3 ASIDE AS THE CASE IS PRIMA FACIE ERRONEOUS AND PREJ UDICIAL TO THE INTERESTS OF THE REVENUE BEING THE ABOVE SAID MATTE RS WERE NOT CONSIDERED ON MERITS. THE LEARNED CIT(TDS), MUMBAI DIRECTED THE ASSESSING OFFICER TO VERIFY THIS ISSUE AND PASS THE SPEAKING ORDER, THEREAFTER, ASSESSING OFFICER PASSED THE ORDER DATE D 27.03.2014 WHICH WAS UPHELD BY THE CIT(A) BY VIRTUE OF ORDER DATED 0 8.05.2015. HOWEVER, THE ASSESSEE CHALLENGED THE ORDER DATED 26 .03.2013 IN QUESTION PASSED U/S.263 OF THE ACT. 4. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE RECORD CAREFULLY. THE SOLE POINT WHICH HAS BEEN RAISED BY THE ASSESSEE IS THAT THE ASSESSEE HAS FURNISHED THE INFORMATION TO THE A SSESSING OFFICER, THEREFORE, THE ASSESSEE IS NOT AT FAULT HENCE ORDER U/S.263 OF THE ACT DATED 26.03.2013 IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO SET ASIDE. HOWEVER, ON THE OTHER HAND THE LEARNED REPR ESENTATIVE OF DEPARTMENT HAS STRONGLY RELIED UPON THE ORDER PASSE D BY THE AUTHORITY CONCERNED. HERE IT IS TO BE SEEN THAT THE ASSESSEE DISCLOSED ALL THE MATERIAL FACTS THEREFORE, THERE ARE NO SUFFICIENT R EASONS TO INVOKE THE PROVISION U/.263 OF THE ACT. THE REVENUE AUTHORITY INDICATED TWO POINTS TO INVOKE THE PROVISION U/S.263 OF THE ACT W HICH ARE HEREBY MENTIONED BELOW:- A. LEASE PREMIUM OF RS.77,66,882/- AND RS.11,04,000 /- PAID TO MMRDA ON 05.12.2007. ITA NO.4443/MUM/13 A.Y.2008-09 4 B. EXPLANATION REGARDING NON DEDUCTION OF TDS ON SE RVICE TAX PAID TO ARCHITECT FOR THE F.Y.2007-08 BY MUMBAI BUILDING REPAIR & RECONSTRUCTION BOARD. ASSESSMENT ORDER DATED 31.03.2011 PERUSED. THE ASS ESSEE DISCLOSED THESE MATERIAL FACTS BEFORE THE ASSESSING OFFICER B UT THE ASSESSING OFFICER DID NOT VERIFY THE CLAIM AND PASSED THE NON -SPEAKING ORDER ON THIS ISSUE. ON OBSERVING THIS FACT THAT ACIT (TDS) 2(1) INTIMATED THE MATTER TO DEAL WITH THE ABOVE MENTIONED PAYMENT WHICH WAS NOT CONSIDERED WHILE PASSING THE ORDER U/S.201(1) AND 2 01(1A) DATED 31.03.2011. THEREAFTER, THE CONCERNED AUTHORITY IN VOKE THE PROVISION U/S.263 OF THE ACT BY VIRTUE OF ORDER DATED 26.03.2 013. AFTER PASSING THE ORDER DATED 26.03.2013 IN QUESTION THE ASSESSIN G OFFICER DECIDED THIS ISSUE BY VIRTUE OF ORDER DATED 27.03.2014 AND THEREAFTER, THE CIT(A) HAS ALSO PASSED THE ORDER DATED 08.05.2015 B Y DELETING THE SAID DEMAND ON THE ISSUES IN QUESTION. NO DOUBT TH E DEMAND WAS NOT RAISED IN PURSUANCE OF ORDER DATED 26.03.2013 IN QU ESTION, BUT THE ORDER U/S.263 OF THE ACT CAN BE PASSED WHEN AN ISSU E WAS NOT ENQUIRED AND VERIFIED BY ASSESSING OFFICER WHICH SHOULD HAVE OUGHT TO BE EXAMINED IN ACCORDANCE WITH LAW. THE CASE OF THE A SSESSEE IS CLEARLY FALL U/S.263(1) EXPLANATION 2A OF THE ACT. IN BRIE F IT CAN BE SAID THAT THE PROVISION U/S.263 OF THE ACT CAN BE INVOKED WHE RE ANY MATTER HAS NOT BEEN ENQUIRED / EXAMINED / VERIFIED BY THE ASSE SSING IN ACCORDANCE WITH LAW. IN VIEW OF THE ABOVE SAID DIS CUSSION WE ARE OF ITA NO.4443/MUM/13 A.Y.2008-09 5 THE VIEW THAT THE ORDER U/S.263 OF THE ACT DATED 26 .03.2013 HAS BEEN PASSED CORRECTLY AND JUDICIOUSLY BY THE REVENUE AUT HORITY WHICH DOES NOT REQUIRE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. 5. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 22 ND JUNE, 2016 MP MP MP MP * +%'#, -,(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ' / BY ORDER, - & //TRUE COPY// ./$ ! /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI