ACIT, Hyderabad V. M/s NAVAYUGA-IVRCL & SEW (JV), Hyderabad

ITA 460/HYD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66122 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-12-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 24-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.460/HYD/2010 ASSESSMENT YEAR : 2006-07 ACIT, CIR-6(1), HYDERABAD. .... APPELLANT VS. M/S. NAVAYUGA IVRCL & SEW (JV), HYDERABAD. RESPONDENT PAN:AAAAN 3846 Q APPELLANT BY : SHRI B.V. PRASAD REDDY RESPONDENT BY : SHRI V. RAGHAVENDRA RAO DATE OF HEARING : 07-06-2012 DATE OF PRONOUNCEMENT : 03-08-2012 ORDER PER SAKTIJIT DEY, J.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST ORDER DATED 29-1-2010 OF CIT (A)-IV, HYDERABAD PASSED IN APPEAL NO.0123/DC6(1)/CIT(A)-IV/08-09 AND IT PERTAINS TO T HE ASSESSMENT YEAR 2006-07 AND REVENUE HAS FILED THIS APPEAL AGAINST DIRECTION OF CIT (A) TO GIVE CREDIT FOR THE TDS ON MOBILISATION ADVANCE. 2. THE ASSESSING OFFICER WHILE EXAMINING THE TDS CE RTIFICATES IN COURSE OF THE ASSESSMENT PROCEEDING FOUND THAT THE ASSESSEE HAS 2 ITA NO.460 OF 2010 M/S NAVAYUGA IVRCL SEW (JV), HYD. CLAIMED CREDIT OF TDS OF RS.1,46,88,506/- WHEREAS I T DISCLOSED RECEIPTS OF RS.8,67,00,000/- IN P & L A/C AS AGAINS T RS.60,84,08,938 RECEIPTS SHOWN IN THE TDS CERTIFICA TES. THE ASSESSEE EXPLAINED THAT THE DIFFERENCE IN THE RECEI PT WAS DUE TO MOBILISATION ADVANCE RECEIVED ON WHICH TAX WAS DEDU CTED AT SOURCE. THE ASSESSEE RELYING UPON THE DECISION OF M/S PROGRESSIVE CONSTRUCTION LIMITED DELIVERED BY ITAT CLAIMED THE TDS TO BE ALLOWABLE. THE AO HOWEVER HOLDING THAT T DS TO THE EXTENT OF RECEIPTS IS TO BE ALLOWABLE AS PER SEC. 1 99 OF THE ACT RESTRICTED THE CLAIM OF TDS TO RS.20,93,154.00. 3. IN THE APPEAL PROCEEDING, THE CIT (A) FOLLOWING THE DECISION OF THE ITAT IN CASE OF M/S PROGRESSIVE CONSTRUCTION S LIMITED ALLOWED THE CLAIM OF TDS MADE BY THE ASSESSEE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. IT IS SEEN THAT ITAT, HYDERABAD BENCH I N ITA NO.99/HYD/2010 IN CASE OF M/S LIMAK-SOMA JV HELD TH AT UNLESS THE ASSESSEE OFFERS THE CORRESPONDING INCOME FOR TA XATION TDS CANNOT BE GIVEN CREDIT. FOLLOWING THE AFORESAID DE CISION THE ITAT, HYDERABAD BENCH IN ITA NO.1357/HYD/2010 IN CASE OF ACIT VS. M/S CSCHK-SOMA JOINT VENTURE HELD IN THE FOLLOWING MANNER:- WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN OUR OPINION, TH IS ISSUE HAS BEEN SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL DATED 24-9-2010 IN ASSESSEES OWN CASE IN ITA NO.99/HYD/2010 FOR THE ASSESSMENT YEAR 2005-06 WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSESSEE. HOWEVER, THE LEARNED AR FOR THE ASSESSEE WAS TRIED TO DISTINGUISH THE ORDER OF THE TRIBUNAL BY SUBMITTING THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION THE WORK IN PROGRESS IS ALSO OFFERE D TO 3 ITA NO.460 OF 2010 M/S NAVAYUGA IVRCL SEW (JV), HYD. TAX AND HENCE TI IS TO BE CONSIDERED TO ALLOW CREDI T FOR THE TDS. IN OUR OPINION, CREDIT FOR TDS IS TO BE G IVEN ON CORRESPONDING RECEIPTS OFFERED FOR TAX INCLUDING WORK IN PROGRESS IF THE WORK IN PROGRESS WAS SUBJEC T TO TDS ON RECEIPT OF ADVANCE TOWARDS IT. THE AO WHILE PASSING THE CONSEQUENTIAL ORDER SHOULD CONSIDER THE SAME. THIS BEING THE CONSISTENT VIEW OF THE TRIBUNAL, WE FOLLOW THE SAME AND DIRECT THE AO TO VERIFY WHETHER THE ASSESSEE HA S OFFERED CORRESPONDING RECEIPTS TO TAX FOR WHICH TDS WAS CLA IMED AND ALLOW CREDIT FOR TDS ACCORDINGLY. THE AO SHALL AFF ORD AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 03 - 8-2012. SD/- SD /- (CHANDRA POOJARI) ACCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATEDTHE 3 RD AUGUST, 2012. COPY TO:- 1) ACIT, CIR-6(1), HYDERABAD. 2) M/S. NAVAYUGA IVRCL &SEW (JV), ROAD NO.36, LAXMI TOWERS, JUBILEE HILLS, HYDERABAD. 3) THE CIT (A)-IV, HYDERABAD 4) THE CIT CONCERNED, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABA D. JMR* 4 ITA NO.460 OF 2010 M/S NAVAYUGA IVRCL SEW (JV), HYD.