J.V. of P.E.C. and S.C.C., Ahmedabad V. The Dy.CIT, Circle-9, Ahmedabad

ITA 569/AHD/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6994 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 16-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: TDS
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 569/AHD/2015 (ASSESSMENT YEAR: 2011-12) J V OF P.E.C. AND S.C.C. 9, 10, 1 ST FLOOR, JAY COMPLEX, PARULNAGAR, BHUYANGDEV, GHATLODIA, AHMEDABAD- 380063 V/S THE DCIT, CIRCLE-9, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAGFJ0136Q APPELLANT BY : SHRI P.D. SHAH, AR RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. ( )/ ORDER DATE OF HEARING : 25 -03-201 9 DATE OF PRONOUNCEMENT : 26 -04-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-4, AHMEDABAD DATED 07.01.2015 PERTAINING TO A.Y. 2011-12 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO . 569 /AHD/2015 . A.Y. 2011- 12 2 1.1 THE ORDER PASSED U/S.250 ON 07-01-2015 FOR A.Y.2011-12 BY CIT(A)-4, ABAD UPHOLDING THE ADDITION OF RS.29,71,059/- AS ACCRUED INCOME IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUST ICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENC E PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITION. 2.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.2971,059/- AS INCOME ACCRUING OR ARI SING IN THE YEAR UNDER APPEAL BEING PART OF THE RA BILL FOR THE MONTH OF MARCH 20 11. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE UPHELD THE ADDITION OF RS.2971,059/- AS INCOME ACCRUING OR ARISING IN THE YEAR UNDER APPEAL BEING PART OF THE RA BILL FOR THE MONTH OF MARCH 2011. 2.3 WITHOUT PREJUDICE TO ABOVE, IN CASE THE IMP UGNED ADDITION OF RS.29,71,059/- IS UPHELD IN A.Y.2011-12, THE LOWER AUTHORITY MAY BE DIRECTED TO EXCLUDE THE SAME FROM THE TOTAL INCOME FOR A.Y. 201 2-13 SINCE IT IS ALREADY INCLUDED IN THE SAID YEAR. IT IS THEREFORE, PRAYED THAT THE ADDITIONS OF RS. 29,71,059/- UPHELD BY THE CIT(A) MAY KINDLY BE DELETED. 2. THE APPELLANT IS A JOINT VENTURE OF PERENNIAL EDIFI CE CO. AND SUBHAM CONSTRUCTION CO. IT DERIVES INCOME BY WAY OF LABOUR CONTRACT AND CIVIL CONSTRUCTION. IT HAD FILED ITS RETURN OF INCOME FOR A.Y.2011-12 ON 30-09-2011 DECLARING TOTAL INCOME OF RS.29,94,640/- 3. DURING THE COURSE OF ASSTT. PROCEEDINGS, THE AO NOT ICED THAT THE APPELLANT HAD SHOWN TOTAL RECEIPT OF RS.5,52,83,241/- AS PER P & L ACCOUNT WHEREAS TOTAL RECEIPTS AS PER 26AS STATEMENT WAS RS.6,25,64,637/- AND THUS, THERE WAS A DIFFERENCE OF RS.72,81,368/-. HENCE, THE APPELLANT WAS ASKED TO EXPLAIN THE ITA NO . 569 /AHD/2015 . A.Y. 2011- 12 3 SAME. THE APPELLANT FURNISHED A DETAILED REPLY DATE D 10-02-2014 GIVING RECONCILIATION IN RESPECT OF THE DIFFERENCE AS ALLE GED. HOWEVER, THE AO CONCLUDED THAT ON VERIFYING THE CONTRA ACCOUNT RECE IVED FROM M/S. GANON DUNKERLEY AND CO. LTD., MUMBAI RECEIVED IN RESPONSE TO NOTICE U/S. 133(6), IT WAS FOUND THAT STILL THERE WAS DIFFERENCE OF RS. 29 ,71,059/- DUE TO RETENTION MONEY WHICH WAS NOT RECONCILED BY THE APPELLANT. HE NCE, THE ADDITION OF RS.29,71,059/- WAS MADE. 4. BEING AGGRIEVED, THE APPELLANT PREFERRED APPEAL TO CIT(A) WHEREIN RELIANCE WAS PLACED ON THE LETTER DATED 17-02-2014 GIVEN TO AO. IN OTHER WORDS, THE APPELLANT HAD EXPLAINED THAT GIDC MAY HAVE REVISED FORM-26AS IN RESPECT OF ENTRY OF RS.29,96,162/- ON 18-05-2011 RELEVANT TO A .Y.2012-13. HOWEVER, THE CIT(A) HAS REJECTED THE SAME FOR THE REASON STATED IN PARA 6 OF THE IMPUGNED ORDER. IT IS OBSERVED THAT IN VIEW OF THE MERCANTIL E SYSTEM OF ACCOUNTING EMPLOYED BY THE APPELLANT, THE PAYMENT OF RS.29,71, 059/- SHOWN ON 31-03- 2011 BY M/S. GANON DUNKERLEY AND CO. LTD. COULD NOT BE CREDITED ON 15.05.2011. DURING THE YEAR TOTAL OF RECEIPTS AS PE R 26AS STATEMENT IS SEEN TO RS. 6,25,64,637/-WHEREAS AS PER P&L ACCOUNT TOTAL R ECEIPTS SHOWN BY THE ASSESSEE ARE RS. 5,52,83,241/-. ALSO AS PER 26AS ST ATEMENT THE TDS DEDUCTED IS RS. 12,51,293/- WHEREAS TDS CLAIMED BY ASSESSEE IN THE RETURN OF INCOME RS. 12,66,428/-. M/S. GANNON DUNKERLEY & CO. LTD. HAS T AKEN CONTRACT OF AUDA OR GUJARAT DEVELOPMENT CORPORATION FOR CIVIL WORK. AND ASSESSEE IS A SUB CONTRACTOR WHO IS WORKING FOR AUDA AND GDC BUT ON B EHALF OF GANNON DUNKERLEY & CO. LTD. IN ORDER TO FIND OUT THE REAL FACTUAL ASPECT, A.O. ISSUED NOTICE U/S. 133(6) OF THE ACT ON 18.10.2013 FOR FUR NISHING THE DETAILS IN CONNECTION WITH PAYMENT MADE TO ASSESSEE DURING THE YEAR. IN REPLY TO THE NOTICE M/S. GANNON DUNKERLEY & CO. LTD. VIDE LETTER DATED 29.10.2013 ITA NO . 569 /AHD/2015 . A.Y. 2011- 12 4 INFORMED THAT THERE WAS SOME MISTAKE IN THE TDS SHO WN IN THE NAME OF ASSESSEE AND SUBSEQUENTLY THEY FAILED CORRECTION ST ATEMENT FOR THE TDS RETURN. HOWEVER, THE RECEIPT WERE SHOWN AS RS. 6,25,64,637/ - IN PLACE OF RS. 6,17,41,317/- SHOWN EARLIER. THEREAFTER, ASSESSEE W AS AGAIN ASKED TO RECONCILE THE DIFFERENCE IS DUE TO TOTAL RETENTION AMOUNT OF RS. 32,65,406/- AND BALANCE IS RS. 29,71,059/-. 5. NOW BY WAY OF SECOND APPEAL, ASSESSEE/ APPELLANT HA S COME BEFORE US. 6. IN SUPPORT OF ITS CONTENTION, ASSESSEE STATED THAT IT FOLLOWS ACCRUAL BASIS, THE INCOME IS CLAIMED TO BE ACCRUED IN F.Y. 2011-12 (A. Y. 2012-13). IN SUPPORT OF ITS CONTENTION, ASSESSEE HAS FILED COPY OF CHEQUE N O. 829912 DATED 18.05.2011 IN RS. 2996112/- IN FAVOUR OF J.V OF PEC & SEC. 7. THUS, WE SEE MERIT IN THE PLEA OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE ALLOW APPEAL OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 26 - 04- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) TRUE COPY (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 26 /04/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED.