DIU RESORTS P.LTD, MUMBAI V. ITO 8(1)(3), MUMBAI

ITA 4797/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4468 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 24-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL J

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4797/MUM/2015 ASSESSMENT YEAR: 2011-12 M/S DIU RESORTS PVT. LTD, FLAT NO.1404, B-29, SHASTRI NAGAR, OPP. J.P. ROAD, ANDHERI(W), MUMBAI-400029 / VS. ITO-8(1)(3), MUMBAI, / ASSESSEE / REVENUE P.A. NO. AABCD2843A $ % & / ASSESSEE BY SHRI BHUPENDRA SHAH $ % & / REVENUE BY SHRI A.K.DHONDIAL JCIT-DR / DATE OF HEARING 06/01/2016 & / DATE OF ORDER: 06/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 31/07/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO ITA NO.4797/MUM/2015 M/S DIU RESORTS PVT.LTD. 2 DISALLOWANCE OF CREDIT OF RS.23,87,755/- IN RESPECT OF TDS CLAIMED ON ADVANCE RECEIVED. 2. DURING HEARING OF THIS APPEAL, THE CRUX OF ARGUMENT ADVANCED BY SHRI BHUPENDRA SHAH, LD. COUNS EL FOR THE ASSESSEE, IS IDENTICAL TO THE GROUND RAISED BY PLACING RELIANCE UPON THE DECISION IN TOYO ENGINEERING INDI A LTD. VS JCIT(2006) 100 TTJ (MUM.) 373, ITO VS SHRI ANUPALLA VI FINANCE AND INVESTMENT LTD. (2011) 131 ITD 205 (CHE NNAI) AND ITO VS AMEE HOSANG MISTRY (2014) 29 ITR (TRIB. ) 397 (MUMBAI). ON THE OTHER HAND, THE LD. DR, SHRI A.K. DHONDIAL, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE WAS TO DEDUCT TDS WHIC H HAS NOT BEEN DEDUCTED. IN REPLY, THE LD. COUNSEL FOR T HE ASSESSEE, EXPLAINED THAT THE ASSESSEE IS FOLLOWING PROJECT CO MPLETION METHOD AND OFFERED THE FULL AMOUNT IN THE YEAR OF C OMPLETION. MY ATTENTION WAS INVITED TO PAGES 26 TO 39 OF THE P APER BOOK. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE ASSESSEE FILED ITS RETURN DECLARING IN COME OF RS.67,530/- WHICH WAS PROCESSED U/S 143(1) OF THE I NCOME TAX ACT, 1961 (HEREINAFTER THE ACT). ON EXAMINATIO N OF THE DETAILS, FILED BY THE ASSESSEE, IT WAS OBSERVED THA T A CONTRACT WAS AWARDED TO THE ASSESSEE TO CARRY OUT CONSTRUCTI ON WORK OF RESIDENTIAL COMPLEX FOR A TOTAL CONSIDERATION OF RS.27 CRORES. FOR EXECUTING THE PROJECT, INDIAN STEEL COR PORATION LTD. (IN SHORT ISCL) PAID RS.11,93,87,755/- AND MAD E TDS OF ITA NO.4797/MUM/2015 M/S DIU RESORTS PVT.LTD. 3 RS.23,87,755/- ON THE SAME. THE CONTRACT WAS ENTERE D INTO MARCH, 2011. THE CLAIM OF CREDIT FOR TDS WAS DISALL OWED BY THE ASSESSEE. ON APPEAL, THE LD. COMMISSIONER OF IN COME TAX (APPEALS) AFFIRMED THE SAME. THE ASSESSEE IS IN APP EAL BEFORE THIS TRIBUNAL. UNDER THESE FACTS, THE CLAIM OF THE ASSESSE IS THAT SINCE THE ASSESSEE IS FOLLOWING PROJECT COMPLE TION METHOD FOR RETURNING THE INCOME CREDIT OF THE TDS H AS TO BE GIVEN IN THAT ASSESSMENT YEAR WHEN THE INCOME WAS R ETURNED IN THE SUBSEQUENT YEAR FOR WHICH RELIANCE WAS PLACE D UPON THE DECISION IN BROADLY IN TOYO ENGINEERING INDIA L TD. VS ACIT (SUPRA) ALONG WITH OTHER CASES. I FIND THAT I N THIS CASE, THE BENCH VIDE ORDER DATED 13 TH SEPTEMBER, 2005, BY FOLLOWING THE DECISION IN TRANSMISSION CORPORATION OF AP LTD AND ORS. VS CIT (1999) 239 ITR 587 (SC), BHAGWAN DA S JAIN VS UOI 128 ITR 315 (SC) AND CIT VS G. R. KARTHIKEYA N (1993) 201 ITR 866 (SC) HAS CONCLUDED THAT CREDIT OF TDS H AS TO BE GIVEN IN THE RELEVANT PREVIOUS YEAR, EVEN THOUGH TH E ASSESSEE FOLLOWS PROJECT COMPLETION METHOD OF ACCOUNTING, TH US, TDS, DURING FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 1 999-2000 HAD TO BE GIVEN CREDIT FOR IN THAT ASSESSMENT YEAR EVEN THOUGH INCOME WAS RETURNED IN SUB-SEQUENT ASSESSMEN T YEAR 2000-01. NO CONTRARY DECISION WAS BROUGHT TO MY NOT ICE BY THE REVENUE. IT IS ALSO NOTED THAT THE REVENUE HAS NOT DOUBTED THE METHOD OF ACCOUNTING AND FULL AMOUNT WA S OFFERED IN THE YEAR OF COMPLETION. IT IS NOTED (PAG E-26 OF THE PAPER BOOK) THAT ORIGINAL VALIDITY OF WORK ORDER WA S 03/01/2013 WHICH WAS EXTENDED TILL 31/03/2015 AND T HE ITA NO.4797/MUM/2015 M/S DIU RESORTS PVT.LTD. 4 WORK HAS BEEN ILLUSTRATED THEREIN. FROM PAGE-33 OF THE PAPER BOOK, THE STATEMENT OF PROFIT & LOSS ACCOUNT YEAR E NDING 31/03/2015 HAS BEEN MADE AVAILABLE, WHEREIN, SALES HAVE BEEN REFLECTED TO THE TUNE OF RS.96,927,215/-. THER E IS NO LOSS TO THE REVENUE AND FULL AMOUNT HAS BEEN OFFERE D ON COMPLETION OF THE PROJECT, THUS, FOLLOWING THE AFOR ESAID DECISIONS AND MORE SPECIFICALLY TOYO ENGINEERING IN DIA LTD. VS JCIT(SUPRA), THE APPEAL OF THE ASSESSEE IS ALLO WED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 06/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 06/01/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI