ITO 10(1)(1), MUMBAI V. BETTER BUILDERS & INFRASTRUCTURE P.LTD, MUMBAI

ITA 4647/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3339 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S RAVICHANDRANDR

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL, MUMBAI B BENCH . . , BEFORE S/SH. MAHAVIR SINGH,JM & B.R. BASKARAN,AM ./ ITA NO./4647/MUM/2012, / ASSESSMENT YEARS: 2009-10 INCOME TAX OFFICER WARD-10-(1)(1), ROOM NO.453, AAYAKAR BHAVAN, MUMBAI. VS. M/S. BETTER BUILDERS & INFRASTRUCTURE PVT. LTD. 5/5, MATHURDAS ESTATE, CHURCH ROAD, KALINA, SANTACRUZ (E) MUMBAI-400 098. PAN:AACCB 6226 A ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI S. RAVICHANDRAN-DR ASSESSEE BY: SHRI VIMAL PUNMIYA / DATE OF HEARING: 30.08.2016 / DATE OF PRONOUNCEMENT:30.08.2016 ,1961 254(1) ORDER U/S 254(1) OF THE INCOME-TAX ACT, 1961(THE AC T) O R D E R PER MAHAVIR SINGH,JM : THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF CIT(A)-21, MUMBAI IN APPEAL NO.CIT(A)-21/IT/329/ 2011-12, ORDER DATED 02 /04/2012. ASSESSMENT WAS FRAMED BY ITO, WARD 10(1)(1), MUMBAI UNDER SECTION 143(3)(II) OF THE INCOME TAX ACT, 1961 ( HEREIN AFTER REFERRED TO AS THE ACT) FOR THE ASSESSMENT YEAR 2009-10 VIDE HIS ORDER DATED 08/12/2011. 4647/M/12- BETTER BUILDERS IPL 2 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE ADDITION OF WORK-IN-PROGRESS MADE BY ASSESSING OFFICER OF RS.1,28,65,961/-. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,28,65,961/- WITHOUT A PPRECIATING THE FACT THAT THE ASSESSEE HAS UNDISCLOSED THE REVENUE OF 11% IN RESP ECT OF VALUE OF THE CONTRACT. 3. AT THE OUTSET, THE ASSESSEE STATED THAT THIS IS A CONSISTENT ISSUE AND THE TRIBUNAL IN AY 2007-08 IN ITS APPEAL NO.6788/MUM/2010 VIDE O RDER DATED 23.10.2012, EXACTLY ON IDENTICAL FACTS, DELETED THE ADDITION BY OBSERVI NG IN PARA-5 AS UNDER :- 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE OPINION THAT THERE IS NO NEED TO DISTURB THE CIT (A) FINDINGS. AO HAS NOT MA DE OUT ANY CASE WHY AN AMOUNT OF RS.1,10,49,765/- SHOULD BE BROUGHT TO TAX AS THE AM OUNT WAS SHOWN AS WORK-IN- PROGRESS AND HAS NOT YET BEEN BILLED TO THE LAND OW NER. CONSISTENCY IN FOLLOWING ACCOUNTING PRINCIPLES ALSO DOES NOT ALLOW THE SAID AMOUNT TO BE TREATED AS INCOME OF THE YEAR AND IN FACT THE SAME AMOUNT WAS OFFERED IN LATER YEAR WHEN THE AMOUNT WAS BILLED. FURTHER AO ALSO WAS NOT CORRECT IN BRINGING THE ENTIRE AMOUNT AS INCOME IGNORING THE CORRESPONDING EXPENDITURE OF RS.93,85, 949/-. THIS ONLY SHOWS THAT AO HAS NOT APPLIED HIS MIND, HAS NOT GIVEN PROPER REAS ONS WHY HE IS DISTURBING ASSESSEES ACCOUNTING PRINCIPLES AND WHY THE SAID A MOUNT IS THE INCOME OF ASSESSEE WHEN IN FACT IT IS ONLY A CONTRACT AMOUNT WHICH WAS NOT YET BILLED PENDING THE CERTIFICATION BY THE ARCHITECT. FOR THESE REASONS, WE REJECT THE GROUNDS OF THE REVENUE AND CONFIRM THE ORDER OF THE CIT (A ). 4. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AND OR DER OF CIT(A) AND NOTICED THAT BOTH THE AUTHORITIES BELOW HAVE RELIED ON THE ASSESSMENT FRAMED IN ASSESSMENT YEAR 2007-08, WHICH WAS SUBJECT MATTER OF APPEAL BE FORE THE TRIBUNAL AND THE TRIBUNAL HAS DELETED THE ADDITION. IN VIEW OF THE ABOVE FACT S, WE ARE OF THE VIEW THAT THE ISSUE IS SQUARELY COVERED BY THE TRIBUNAL DECISION IN ASSESS EES OWN CASE CITED SUPRA. RESPECTFULLY FOLLOWING THE SAME WE CONFIRM THE ORDE R OF CIT(A) DELETING THE ADDITION. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 4647/M/12- BETTER BUILDERS IPL 3 ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2016 30 , 2016 SD/- SD/- ( . . / B.R. BASKARAN) ( / MAHAVIR SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /MUMBAI, /DATE: 30.08.2016 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ ! ' #$ , 4. THE CONCERNED CIT / ! ' #$ ; 5. DR A BENCH, ITAT, MUMBAI / % , B , . . . 6. GUARD FILE/ & //TRUE COPY// / BY ORDER, DY./ASST. REGISTRAR , /ITAT, MUMBAI.