TOTAL SPORTS & ENTERTAINMENT PVT. LTD., MUMBAI V. ITO 1(3)(1), MUMBAI

ITA 5354/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2208 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 31-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARILD
• Assessee Lawyers: MANISH J SHETHLD
• Keywords: Corroborative evidences; Onus to prove
• Section: 133(6)

Judgement Text

ITA.NOS.5354/MUM/2016 TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED ASSESSMENT YEAR-2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE HONBLE SHRI JOGINDER SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.5354/MUM/2016 ( / ASSESSMENT YEAR: 2013-14) TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED THE CAPITAL, PLOT NO.C-70 G-BLOCK, 7 TH FLOOR BANDRA KURLA COMPLEX BANDRA EAST,MUMBAI-400 051. / VS. INCOME T AX OFFICER - 1(3)(1) ROOM NO.541, 5 TH FLOOR AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. ./ ./PAN/GIR NO. AACCT 0590 R ( '# /APPELLANT ) : ( $%'# / RESPONDENT ) ASSESSEE BY : SHRI MANISH J. SHETH-LD.AR REVENUE BY : SHRI D.G. PANSARI- LD.DR / DATE OF HEARING : 25/10/2018 / DATE OF PRONOUNCEMENT : 16/11/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2013-14 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, MUMBAI, [CIT(A)], APPEAL NO.CIT(A)-3/ITO-1(3)(1)/IT-99/2015-16 DATED ITA.NOS.5354/MUM/2016 TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED ASSESSMENT YEAR-2013-14 2 13/06/2016. THE CONCISE GROUNDS OF APPEAL HAS BEEN FILED BEFORE US, OUT OF WHICH THE GROUNDS URGED BEFORE US ARE GROUND NUM BERS 1 & 3, WHICH READS AS FOLLOWS:- 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS.81,63,192/- MADE BY AS SESSING OFFICER AS INCOME FROM NDTV LTD BASED ON DIFFERENCE IN 26AS AND ITR. 3) WITHOUT PREJUDICED TO ANY OTHER GROUNDS OF APPE AL AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C1T(A ) OUGHT TO HAVE RESTRICTED THE ADDITION @5.75% (NP %) ON RS.81,77,692/- I.E. RS.4, 70,230/-. THE ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR [AY ] WAS FRAMED BY LD. INCOME TAX OFFICER1(3)(1), MUMBAI [AO] U/S 143 (3) ON 26/02/2016 WHEREIN THE INCOME OF THE ASSESSEE WAS ASSESSED AT NIL UNDER NORMAL PROVISIONS AFTER SET-OFF OF BROUGHT FORWARD LOSSES. THE TAX LIABILITY AS PER MINIMUM ALTERNATIVE TAX [MAT] PROVISIONS WAS WORKED OUT AS RS.11.73 LACS. DURING IMPUGNED AY, THE ASSESSEE BEING RESIDENT CORPORATE ENTITY WAS ENGAGED IN THE BUSINESS OF ACQUIRING ADVERTISING RIGHTS OF VARIOUS SPORT EVENTS. AS EVIDENT FROM GROUNDS OF APPEAL, THE SUBJECT MATT ER OF PRESENT APPEAL IS ADJUSTMENT MADE BY LD. AO ON THE BASIS OF DISCREPANCIES FOUND IN FORM 26AS. 2. THE FACTS GERMANE TO THE ISSUE ARE THAT THE PERU SAL OF DATA REFLECTED IN ASSESSEES FORM 26AS REVEALED THAT THE ASSESSEE RECEIVED AN AMOUNT OF RS.122.50 LACS FROM AN ENTITY NAMELY NDTV. AGAINST THE STATED PAYMENT, AN AMOUNT OF RS.12.25 LACS WAS SHOW N TO HAVE BEEN DEDUCTED AS TAX AT SOURCE. HOWEVER, THE QUANTUM OF RECEIPTS AS REFLECTED IN ASSESSEES BOOKS OF ACCOUNTS WAS RS.40 .87 LACS. ACCORDINGLY, THE ASSESSEE WAS DIRECTED TO RECONCILE THE DIFFERENCE. THE ASSESSEE VIDE LETTERS DATED 11/01/2016 & 25/02/2016 DEFENDED THE ITA.NOS.5354/MUM/2016 TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED ASSESSMENT YEAR-2013-14 3 SAME AND STATED THAT THE ASSESSEE HAD RAISED INVOIC ES AGAINST THE SAID ENTITY ONLY TO THE EXTENT OF RS.40.87 LACS AND NO O THER SERVICES IN EXCESS OF THE AMOUNT OF BILLS RAISED WERE EVER REND ERED. THE SUBMISSIONS WERE SUPPORTED BY LEDGER EXTRACTS AND BANK STATEMENTS. HOWEVER, TO CONFIRM THE TRANSACTIONS, A NOTICE U/S 133(6) WAS ISSUED TO NDTV, WHO, VIDE REPLY DATED 28/01/2016 CONFIRMED THE TRA NSACTIONS AS REFLECTED IN FORM 26AS . THE SAME LED THE LD. AO TO ADD THE DIFFERENTIAL AMOUNT OF RS.81.63 LACS IN THE HANDS OF THE ASSESSE E. 3. AGGRIEVED, THE ASSESSEE REITERATED THE SUBMISSIO NS WITHOUT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 13/06/2016 WHEREIN LD. CIT(A) CONFIRMED THE STAND OF LD. AO BY OBSERVING AS UNDER:- 6.4 IN MY OPINION THE TRANSACTION CONFIRMED BY NDTV LTD. OF RS. 81,63,192/- CANNOT BE IGNORED BEING THE THIRD PARTY CONFIRMATION. ONUS IS ON THE APPELLANT TO DISPROVE ITS CLAIM AS NON-GENUINE TRANSACTION TAKEN PLACE WITH I T. HOWEVER, THE APPELLANT HAD NOT PRODUCED ANY EVIDENCE EITHER BEFORE THE ASSESSING O FFICER OR BEFORE ME IN SUPPORT OF ITS CLAIM. UNDER THESE CIRCUMSTANCE, IT IS DIFFI CULT TO RELY ON THE VERSION OF THE APPELLANT THAT IT HAD NOT TRANSACTED FOR RS.81,63,1 92/- WITH NDTV LTD. ALL LEGAL REMEDIES ARE AVAILABLE WITH THE APPELLANT TO TAKE L EGAL ACTION AGAINST NDTV LTD. EITHER TO REVERSE THE TRANSACTED AMOUNT OR TO CLAIM DAMAGE AGAINST NDTV LTD. WHO ALLEGEDLY MANIPULATED ITS ACCOUNTS IN THE NAME OF T HE APPELLANT AND WRONGLY MADE THE TDS IN ITS NAME AND UPLOADED THE SAME IN APPELL ANTS' FORM 26AS. HOWEVER, THE APPELLANT KEPT SILENT AND DID NOT MAKE ANY EFFORTS TO TAKE ANY SUCH LEGAL ACTION AGAINST NDTV LTD. OR TO DENY OF SUCH TRANSACTION WI TH NDTV LTD. MERE MAKING SUBMISSION BEFORE THE INCOME-TAX AUTHORITIES IS NOT SUFFICIENT WHERE THE ASSESSING OFFICER HAS DONE HIS JOB SINCERELY TO GET THE TRANS ACTION CONFIRMED FROM NDTV LTD. FOR RS. 81,63,192/-. NOW THE ONUS HAS SINCE BEEN SH IFTED ON THE APPELLANT TO PROVE ITS VERSION CONTRARY TO THE FACTS CONFIRMED BY THE THIRD PARTY. THE APPELLANT HAS MISERABLY FAILED TO DISCHARGE ITS ONUS TO PROVE ITS CLAIM AND CONTRARY TO THE FINDING OF THE AO. UNDER THESE CIRCUMSTANCES, I DID NOT FIND A NY REASON TO INTERFERE IN THE FINDING OF THE AO. IN VIEW OF THE ABOVE FACTS, GROU NDS OF APPEAL 1 TO 4 ARE DISMISSED. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. ITA.NOS.5354/MUM/2016 TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED ASSESSMENT YEAR-2013-14 4 4. THE LD. AUHTORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI MANISH J. SHETH, DRAWING OUR ATTENTION TO THE DOCUMENTS PLACED IN TH E PAPER- BOOK, SUBMITTED THAT THE ASSESSEE HAD RENDERED SERVICES T O NDTV ONLY TO THE EXTENT OF RS.40.87 LACS AND CREDIT OF TDS WA S CLAIMED IN RESPECT OF THOSE PAYMENTS ONLY. IT WAS SUBMITTED THAT THE A SSESSEE NEVER RENDERED SERVICES OR RAISED ANY BILLS TO NDTV FOR THE DIFFERENTIAL AMOUNT AND THE PAYMENT WAS ALSO NEVER RECEIVED BY THE ASSE SSEE IN RESPECT THEREOF. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], SHRI D.G.PANSARI SUBMITTED THAT THE COMPLETE ONUS TO RECONCILE THE S AME RESTED UPON THE ASSESSEE. 5. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. UPON DUE CONSIDERATION, WE FIND THAT THE ASSESSEE HAS CONSISTENTLY TAKEN A STAND THAT BILLS FOR THE D IFFERENTIAL AMOUNT WERE NEVER RAISED AND THE SERVICES WERE NEVER RENDERED B Y THE ASSESSEE TO THE SAID ENTITY. THIS IS FORTIFIED BY THE FACT THAT THE ASSESSEE DID NOT CLAIM THE CREDIT OF TDS ON ADDITIONAL RECEIPTS AS REFLECT ED IN FORM 26AS. HOWEVER, IT IS ALSO AN UNDISPUTED FACT THAT NDTV HAS STOOD BY THE FIGURES REFLECTED IN FORM 26AS AND DEDUCTED DUE TDS THEREUPON. IT HAS BEEN SUBMITTED BEFORE US THAT THERE ARE NO CHANGES, WHATSOEVER, IN THE DATA BEING REFLECTED IN FORM 26AS AND THE SAME STANDS AS IT IS. THEREFORE, AS RIGHTLY NOTED BY FIRST APPELLATE AUTH ORITY, THE ONUS HAS SHIFTED UPON ASSESSEE TO RECONCILE THE SAME. TO ENA BLE THE SAME, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD. AO TO RE-ADJUDICATE THE SAME IN THE LIGHT OF ASSESSEES SUBMISSIONS. TH E LD. AO AS WELL AS ASSESSEE SHALL ENDEAVOR TO RECONCILE THE ENTRIES BE ING REFLECTED IN FORM- 26AS AND IF REQUIRED, FURTHER CORROBORATIVE EVIDENCES F ROM NDTV MAY BE ITA.NOS.5354/MUM/2016 TOTAL SPORTS & ENTERTAINMENT PRIVATE LIMITED ASSESSMENT YEAR-2013-14 5 OBTAINED SO AS TO RE-ADJUDICATE THE SAME. ON THE FA CTS, SOME REASONABLE ESTIMATION AGAINST THE EXCESS RECEIPTS, AS SUGGESTE D BY LD. AR, COULD NOT BE ACCEPTED. GROUND NUMBER-1 STANDS ALLOWED FOR STATISTICAL PURPOSES WHEREAS GROUND NUMBER-3 STANDS DISMISSED. 6. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2018. SD/- SD/- (JOGINDER SINGH) (MAN OJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 16.11.2018 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT 3. ! !, ( ) / THE CIT(A) 4. ! !, / CIT CONCERNED 5. -!$'. , !!. , / DR, ITAT, MUMBAI 6. /01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.