ACIT CIR 4, THANE V. T. RAVINDRA POOJARI, THANE

ITA 5073/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92956 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 05-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: RAMESH S PRABHU
• Keywords: Corroborative evidences

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO ( JM ) AND D. KARUNAKAR RAO, (AM) , . , ./ I.T.A. NO . 5073 / MUM/20 1 3 ( / ASSESSMENT YE A R : 20 0 6 - 07 ) ASSTT.COMMISSIONER OF INCOME TAX - CIRCLE 4, ROOM NO.2, ASHAR IT PARK, 6 TH FLOOR, AMBIKA NAGAR, ROAD NO.16Z, WIE, MIDC, THANE (W) - 400602 / VS. SHRI T RAVINDRA POOJARI, FLAT NO.4, SAN J ARI APPTS, VISHAL NAGAR, AMBADI ROAD, VASAI ROAD (W), THANE. ( / APPELLANT ) .. ( / RESPONDENT ) CROSS - OBJECTION 231/MUM/2014 ARISING OUT OF I.T.A. NO .5073/ MUM/20 13 ( / ASSESSMENT YE A R : 2006 - 07 ) SHRI T RAVINDRA POOJARI, FLAT NO.4, SANJARI APPTS, VISHAL NAGAR, AMBADI ROAD, VASAI ROAD (W), THANE. / VS. ADDL.COMMISSIONER OF INCOME TAX - CIRCLE 4, ROOM NO.2, ASHAR IT PARK, 6 TH FLOOR, AMBIKA NAGAR, ROAD NO.16Z, WIE, MIDC, THANE (W) - 400602 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AKAPP3489Q / REVENUE BY SHRI NEIL PHILIP / ASSESSEE BY SHRI RAMESH S PRABHU / DATE OF HEARING : 7 .5.2015 / DATE OF PRONOUNCEMENT : 22.6 . 2015 5073 /MUM/201 3 AND CO 231/M/2014 2 / O R D E R PER VIJAY PAL RAO ( JM ) THIS APPEAL BY THE REVENUE AND CROSS - OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 1.4.201 3 OF LD.CIT(A) FOR THE ASSESSMENT YEAR 2006 - 07. 2. REVENUE HAS RAISED FOLLOWING GROUNDS: 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT ( A) - II, THANE HAS ERRED IN DELETING THE ADDITION OF RS.25,56,678/ - BY HOLDING THAT NO ADDITION IS CALLED FOR IN THE HANDS OF THE ASSESSEE DESPITE THE FACT THAT THE ASSESSEE DID NOT DISCLOSE RECEIPTS TO THE EXTENT OF RS. 25,56,678/ - EVEN THOUGH THE TDS CERTIFICATES EVIDENCED THAT THESE RECEIPTS BELONGS TO THE ASSESSEE. 2. ON THE FACTS AN CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) - II, THANE HAS ERRED IN HOLDING THAT SINE THE RELEVANT RECEIPTS A R E DISCLOSED IN THE HANDS OF ANOTHER ENTITY, S A ME IS NOT TAXABLE IN T HE HANDS OF THE ASSESSEE OVERLOOKING THE FACT THAT AS PER TDS CERTIFICATES THESE RECE IPTS PERTAINS TO THE ASSESSEE . 3. THE ASSESSEE IS ENGAGED IN THE CATERING BUSINESS AND DISCLOSED CATERING RECEIPTS OF RS.3,53,17,995/ - DURING THE YEAR UNDER CONSIDERATION . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED FROM THE TDS CERT IFICATE THAT THE RECEIPT AMOUNTING TO RS. 3,78,74,672/ - INSTEAD OF RS.3,53,17,995/ - . SINCE THERE WAS A DISCREPANCY IN THE RECEIPT TO THE TUNE OF RS.25,56,678/ - , THE AO MADE THE ADDITION. 4. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION BY NOTING TH E FACT THAT THE PROPRIETARY BUSINESS OF THE ASSESSEE WAS CARRIED OUT IN THE NAME OF M/S MANOHAR CATERERS AND M/S MAHOHAR CATERERS WAS CONVERTED INTO A PRIVATE LIMITED COMPANY IN THE NAME OF M/S MANOHAR CATERERS PVT.LTD. HOWEVER, THE CONTRACTEES INADV ERTENTLY CONTINUED MENTIONING PAN OF PROPRIETARY CONCERN OF THE ASSESSEE IN THE TDS CERTIFICATE DESPITE THE FACT THAT THE BILLS WERE RAISED BY THE COMPANY AND MONEY AFTER DEDUCTION OF TDS WAS ALSO RECEIVED BY THE COMPANY. 5073 /MUM/201 3 AND CO 231/M/2014 3 5. BEFORE US, THE LD. DR HAS SUB MITTED THAT THE AO HAS CONSIDERED THE TDS CERTIFICATE IN THE NAME OF THE ASSESSEE WHICH CLEARLY SHOW THAT THE ASSESSEE RECEIVED THE SAID AMOUNT OF RS.25,56,678/ - BUT DID NOT OFFER TO TAX. 6. ON THE OTHER HAND, THE LD. AR HAS REITERATED THE CONTENTIONS AS MADE BEFORE THE AUTHORITIES BELOW. HE HAS SUPPORTED THE ORDER OF LD.CIT(A). 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD, WE NOTE THAT THE AO MADE THE ADDITION DUE TO DIFFERENCE IN THE RECEIPT SHOWN BY THE ASSESSEE AND TOTAL RECEI PT AS PER TDS CERTIFICATE. THE ASSESSEE POINTED OUT THE REASONS OF DISCREPANCY I S THE TDS CERTIFICATE WAS WRONGLY ISSUED IN THE NAME OF A PROPRIETARY CONCERN, WHEREAS THE BUSINESS OF PROPRIETARY CONCERNED WAS ALREADY TAKEN OVER BY THE COMPANY AND THE CONCERN PAYMENT WERE RECEIVED AND OFFERED TO TAX BY THE COMPANY. THE LD. CIT(A) ISSUED A REMAND ORDER FOR EXAMINATION OF FACTS AND AFTER CONSIDERING THE REMAND REPORT HAS HELD IN PARA 4 AS UNDER : 4. I HAVE CAREFULLY CONSIDERED THE FACTS ON REC ORD, SUBMISSION OF THE APPELLANT AND ALSO THE REMAND REPORT OF A.O. I FIND THAT VARIOUS BILLS HAVE BEEN ISSUED BY M/S MANOHAR CATERERS PVT LTD TO ICICI ONE SOURCE AND M/S J P MORGAN SERVICES PVT.LTD AND THE AMOUNT OF RECEIPT AFTE TDS MATCH WITH THE TDS CERTIFICATES UNDER DISPUTES . THE COPY OF BANK STATEMENT OF M/S. MANOHAR CATERERS PVT. LTD. WITH SYNDICATE BANK ALSO SHOWS THAT THE PAYMENTS FROM ICICI ONE SOURCE ARE RECEIVED AND CREDITED IN THE BANK ACCOUNT ON 26/11/2005 AND 09/12/2005. IN RESPECT O F THE PAYMENT RECEIVED FROM M/S. J P MORGAN SERVICES INDIA PVT. LTD., IT HAS BEEN STATED THAT THE CREDIT ENTRY IN THE BANK ACCOUNT ON 28/12/2005 FOR RS. 22,83,044/ - INCLUDED THE DISPUTED RECEIPTS OF RS.17,55,733/ - . THESE EVIDENCES ALTHOUGH WERE FORWARDED T O THE AO DURING REMAND PROCEEDINGS, BUT THE AO DID NOT EXAMINE T HE SAME ON THE GROUND THAT HE AT THIS JUNCTURE HAD NO PROCEEDINGS PENDING BEFORE HIM. THE CONTENTION OF THE AO IS NOT CORRE CT BECAUSE THE APPELLATE PROCEEDINGS A RE CONTINUANCE OF THE ASSES SMENT PROCEEDINGS AND THE AO HAD BEEN DIRECTED BY THE CIT(A) TO CARRY OUT THE CROSS - VERIFICATION OF THE FRESH ARGUMENTS AS WELL AS FRESH EVIDENCES. ON CAREFUL CONSIDERATION OF TOTALITY OF THE EVIDENCE AVAILABLE ON RECORD, PRIMA FACIE IT EMERGES THAT HE R ECEIPTS UNDER DISPU T E WHICH HAVE BEEN RECEIVED FROM ICICI ONE SOURCE AND M/S J P MORGAN SERVICES INDIA PVT LTD IN FACT ARE RECORDED IN THE BANK STATEMENT OF M/S MANOHAR CATERERS PVT LTD. ONCE THE RECEIPTS ARE INCLUDE D I N THE INCOME OF THE PVT LTD.CO., T HE S A ME CANNOT BE TAXED AGAIN IN THE HANDS OF APPELLANT. THEREFORE, I AM OF THE CONSIDERED VIEW 5073 /MUM/201 3 AND CO 231/M/2014 4 THAT NO ADDITION IN THE HANDS OF THE APPELLANT IS CALLED FOR UNDER THE FAC T S AND CIRCUMSTANCES OF THE CASE. HOWEVER, WITH ABUNDANT PRECAUTION, THE AO IS D IRECTED TO VERIFY THE CONTENTION OF THE APPELLANT AND ALSO SUPPORTING EVIDENCE CAREFULLY AND IF RECEIPTS UNDER DISPUTE HAVE BEEN DISCLOSED BY THE PRIVATE LI MITED COMPAN Y IN ITS RETURN OF INCOME, THEN NO ADDITION IN THE CASE O F APPELLANT IS CALLED FOR AN D A CCORDINGLY, THE S A ME IS REQUIRED TO BE DELETED . NEEDLESS TO MENTION, THE APPELLANT WILL PROVIDE NECESSARY DOCUMENTS TO THE AO FOR CROSS VERIFICATION. IN THE EVENT OF DELETION OF ADDITION , THE TDS CREDIT CLAIMED BY THE APPELLANT SHOULD BE WITHDRAWN BY TH E AO. THUS, THE GROUND NO.1 STAND PARTLY ALLOWED. 8 . THUS, THE LD.CIT(A) HAS GIVEN THE FINDINGS AFTER CONSIDERING THE FACTS THAT THE CONCERNED RECEIPTS ARE DULY RECORDED IN THE BOOKS OF THE COMPANY M/S MANOHAR CATERERS PRIVATE LIMITED, AND THEREFORE , THE SAME CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE. FURTHER, THE TDS CREDIT IN RESPECT OF THE SAID AMOUNT WAS ORDERED TO BE WITHDRAWN . ACCORDINGLY , WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER O F THE LD. CIT(A) QUA THIS ISSUE. CROSS - OBJECTIO N : 9 . WE FURTHER NOTICE THAT THERE IS A DELAY OF 416 DAYS IN FILING THE CROSS - OBJECTION. HAVING CONSIDERED THE REASONS EXPLAINING THE DELAY IN FILING THE CROSS - OBJECTION, WE DECLINE TO CONDONE THE DELAY IN FILING THE CROSS - OBJECTION. ACCORDINGLY, THE CROSS - OBJECTION FILED BY T HE ASSESSEE IS DIS MISSED ON TECHNICAL POINT OF LIMITATION. 10 . IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS CROSS - OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22ND JUNE , 201 5 . 22ND JUNE , 2015 SD SD ( . / D. KARUNAKAR RAO ) ( / VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 22ND JUNE , 2015 . . . ./ SRL , SR. PS 5073 /MUM/201 3 AND CO 231/M/2014 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI