THE ACIT RG 8(3), MUMBAI V. M/S. VENTURE INFOTEK GLOBAL P. LTD, MUMBAI

ITA 5776/MUM/2007

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71539 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 04-11-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 07-09-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI PRAKASH
• Assessee Lawyers: SHABNAM SHAIKH
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MU MBAI BEFORE SHRI H.L.KARWA HONBLE PRESIDENT,JM AND SHR I RAJENDRA SINGH, AM ./ I.T.A. NO. 5776/M/2007 ( / ASSESSMENT YEAR: 2002-03) ACIT RG 8(3) R.NO.204, 2 ND FLOOR, AAYAKAR BHAVAN,M.K. RD. MUMBAI 400020 / VS. M/S.VENTURE INFOTEK GLOBAL P.LTD. 701, INTERFACE 11, MALAD(WEST) MUMBAI-400 064 ./ ./PAN/GIR NO. AAACE2403J ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAVI PRAKASH / RESPONDENT BY : MS. SHABNAM SHAIKH ! / DATE OF HEARING : 04.11.2013 '#$% ! / DATE OF PRONOUNCEMENT : 04.11.2013 &' / O R D E R PER RAJENDRA SINGH, A. M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDE R DATED 07.06.2007 OF CIT(A) FOR THE A.Y. 2002-03. THE APPEAL HAD EARLIER BEING DISPOSED OFF BY THE 2 ITA NO. 5776 /MUM/2007 TRIBUNAL VIDE ORDER DATED 27.03.2012. HOWEVER IN TH E SAID ORDER, THE TRIBUNAL OMITTED TO DECIDE THE GROUND NO.2 RELATING TO ADDIT ION ON ACCOUNT OF DISCREPANCY IN REVENUE AS PER THE TDS CERTIFICATE. THE ASSESSEE, T HEREFORE, FILED MISCELLANEOUS APPLICATION BEING MA NO.762/MUM/2012 WHICH WAS DISP OSED OFF BY THE TRIBUNAL VIDE ORDER DATED 03.07.2013 IN WHICH THE TRIBUNAL R ECALLED THE GROUND NO.2 FOR AFRESH ADJUDICATION. THEREFORE, IN THE PRESENT PROC EEDINGS, WE ARE ONLY CONCERNED WITH THE GROUND NO.2 RELATING TO ADDITION BASED ON DISCREPANCIES WITH RESPECT TO THE TDS CERTIFICATE. 2. THE FACTS RELATING TO GROUND NO.2 ARE THAT DURIN G THE ASSESSMENT PROCEEDING, AO NOTED DISCREPANCIES IN THE REVENUE AS SHOWN IN THE PROFIT AND LOSS ACCOUNT AND THE REVENUES DISCLOSED IN THE TDS CERTIFICATE. AO F OUND THAT THE REVENUE AS PER TDS CERTIFICATE IN RELATION TO ANDHRA BANK WAS MORE TO THE EXTENT OF RS.75,65,323/- COMPARED TO THE REVENUES DISCLOSED I N THE P&L ACCOUNT. THE AO ASKED ASSESSEE TO RECONCILE THE DISCREPANCY BUT THE ASSESSEEE STATED THAT IT HAD CALLED FOR DETAILS FROM THE ANDHRA BANK WHO HAD NOT RESPONDED TO THE REQUIREMENT. THE AO, THEREFORE, ADDED A SUM OF RS.75,65,323/- TO THE TOTAL INCOME. 3. IN APPEAL, THE ASSESSEE SUBMITTED BEFORE CIT(A) THAT THE ANDHRA BANK HAD SINCE FURNISHED DETAILS OF REVENUE AND IT HAD CLARI FIED THE POSITION VIDE LETTER DATED 10.09.2005. THE ASSESSEE FILED THE DETAILS AS ADDIT IONAL EVIDENCE AND REQUESTED CIT(A) TO ADMIT THE SAME. THE CIT(A) FORWARDED THE ADDITIONAL EVIDENCE TO THE AO FOR EXAMINATION AND REMAND REPORT. THE AO IN THE REMAND REPORT SUBMITTED THAT THE BANK IN THE LETTER DATED 10.09.2005 HAD CL ARIFIED THAT THE AMOUNT OF RS. 351,82,610/-MENTIONED IN THE ORIGINAL TDS CERTIFICA TE DATED 23.05.2002 SHOULD READ AS RS.342,96,492/- .IT WAS ALSO MENTIONED IN T HE SAID LETTER THAT THE AMOUNT OF RS.67,38,857/- SHOWN IN THE TDS CERTIFICATE ISSUED ON 19.09.2002 WAS INCLUDED IN 3 ITA NO. 5776 /MUM/2007 THE AMOUNT OF RS.3,42,96,492/-. THE AO OBSERVED THA T THE BANK GAVE NO REASON OF REVISING FIGURE FROM 351,82,610/- TO RS. 3,42,96,49 2/-. THE BANK HAD ALSO NOT EXPLAINED HOW THE AMOUNT MENTIONED IN THE SECOND TD S CERTIFICATE WAS INCLUDED IN THE FIRST CERTIFICATE. AO, THEREFORE, REPORTED T HAT INFORMATION SUBMITTED BY THE ASSESSEE COULD NOT BE RELIED UPON. THE ASSESSEE IN REPLY TO THE REMAND REPORT SUBMITTED THAT THE BANK HAD ISSUED INCORRECT CERTIF ICATE WHICH HAD BEEN CORRECTED BY IT AND THEREFORE, THERE WAS NO CASE FOR MAKING A DDITION BASED ON OLD CERTIFICATE. THE CIT(A) DID NOT EXCEPT THE OBJECTION RAISED BY T HE AO IN THE REMAND REPORT AND OBSERVED THAT THE REASON GIVEN BY THE AO WAS NOT VA LID REASON FOR ADDITION OF RS.75 LACS. THE CIT(A) ALSO OBSERVED THAT IN CASE T HE AO REQUIRED FURTHER CLARIFICATION, HE COULD HAVE TAKEN UP MATTER WITH T HE BANK BUT NO SUCH ACTION HAD BEEN TAKEN. SINCE THE BANK HAD CLARIFIED THAT THE A SSESSEE HAD NOT BEEN PAID MORE THAN, THE AMOUNT STATED IN THE P&L ACCOUNT NO ADDI TION COULD BE MADE. THE CIT(A), THEREFORE DIRECTED THE AO TO DELETE THE AD DITION MADE AGGRIEVED BY WHICH THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US, THE LEARNED AR FOR THE ASSESSEE REFER RING TO LETTER DATED 10.09.2005 OF THE ANDHRA BANK A COPY WHICH HAS BEEN PLACED ON RECORD POINTED OUT THAT THE BANK IN THE SAID LETTER HAD CLARIFIED THAT THE AMOUNT MENTIONED OF RS.67,38,857/- AS PER SECOND CERTIFICATE DATED 19.0 9-2002 WAS INCLUDED IN THE AMOUNT OF RS.3,51,82,610/- AS PER THE FIRST CERTIFI CATE ISSUED DATED 23.05.2003. THE BANK ALSO CLARIFIED THAT THE AMOUNT MENTIONED IN TH E FIRST CERTIFICATE WAS INCORRECT AND SHOULD BE READ AS 3,42,96,492/- THE AO HAD NOT POINTED OUT ANY MISTAKE IN THE CERTIFICATE BY THE BANK AND THEREFORE, ORDER OF CIT (A) DELETING ADDITION WAS CORRECT. THE LEARNED DR, ON THE OTHER HAND PLACED R ELIANCE ON THE REMAND REPORT SUBMITTED BY THE AO. 4 ITA NO. 5776 /MUM/2007 5. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTES RAISED IS REGARDING ADDITION MADE BY THE A O OF RS.75,65,323/- BASED ON DISCREPANCY NOTED WITH RESPECT TO THE TDS CERTIFICA TES FROM ANDHRA BANK. THE SAID BANK IN THE CERTIFICATE DATED 23.05.2002 HAD MENTIO NED THE AMOUNT PAID TO THE ASSESSEE AT RS. 3,51,82,610/-. IT HAD ALSO ISSUED S ECOND CERTIFICATE DATED 19.09.2002 IN WHICH AMOUNT MENTIONED WAS RS.67,38,857/-. AT TH E TIME OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD NOT PROPERLY EXPLAINED THE POSITION AND THEREFORE, AO ADDED DISCREPANCY OF RS.75,65,323/- TO THE TOTAL IN COME. HOWEVER BEFORE CIT(A) THE ASSESSEE SUBMITTED LETTER DATED 10.09.2005 FROM THE BANK CLARIFYING THE POSITION THAT THE AMOUNT MENTIONED IN THE FIRST CERTIFICATE DATED 23.05.2002 INCLUDED THE AMOUNT MENTIONED IN THE SECOND CERTIFICATE. THE BAN K ALSO CLARIFIED THAT THE CORRECT AMOUNT WAS RS.3,42,96,492/- AND NOT RS.3,51,82,610/ -. THE AO, HOWEVER OBJECTED TO THE CLAIM OF THE ASSESSEE ON THE GROUND THAT TH E BANK HAD NOT GIVEN REASON FOR REVISING THE FIGURE TO RS.3,42,96,492/- AND HAD ALS O NOT EXPLAINED AS TO HOW THE AMOUNT MENTIONED IN SECOND CERTIFICATE WAS INCLUDED IN THE AMOUNT MENTIONED IN THE FIRST CERTIFICATE. THE AO, HOWEVER MADE NO INQU IRY FROM THE BANK TO DISPUTE THE FIGURES MENTIONED BY THE BANK IN THE LETTER DATED 1 0.09.2005. IN CASE THE FIGURES MENTIONED IN THE TDS CERTIFICATE ARE FOUND TO INCOR RECT, THE ISSUING AUTHORITY WHICH IN THIS CASE BANK IS ENTITLED TO CORRECT THE FIGURE S WHICH HAD BEEN DONE IN THE CASE. THE ASSESSMENT HAS TO BE MADE ON THE BASIS OF FIGUR ES GIVEN BY BANK UNLESS THE AO PROVES BY ABDUCING NECESSARY EVIDENCE THAT FACTS AN D FIGURE GIVEN BY THE BANK WERE NOT CORRECT. AO HAS NOT DONE ANY SUCH THING TO DISPROVE THE POINTS MADE BY THE BANK IN CERTIFICATORY LETTER DATED 10.09.2005. THE BANK HAD CONFIRMED THE AMOUNT SHOWN BY THE ASSESSEE IN THE P/L ACCOUNT AND THERE IS NO MATERIAL PRODUCED BEFORE US BY THE REVENUE TO SHOW THAT THE CLARIFICA TION GIVEN BY THE BANK IS INCORRECT. THE ADDITION MADE THEREFORE CANNOT BE UP HELD. WE THEREFORE, SEE NO 5 ITA NO. 5776 /MUM/2007 INFIRMITY IN THE ORDER OF CIT(A) DIRECTING OF THE AO TO DELETE THE ADDITION. THE ORDER OF CIT(A) IS THEREFORE, UPHELD. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 04 TH , 2013 SD/- SD/- ( H.L KARWA HONBLE PRESIDENT ) (RAJENDRA SINGH) () & / JUDICIAL MEMBER & / ACCOUNTANT MEMBER * + MUMBAI; ,& DATED : 04 .11.2013 .). ./A.K.PATEL . PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4 ( ) / THE CIT(A) 4. 4 / CIT - CONCERNED 5. 789 ) ):; , ! :;% , * + / DR, ITAT, MUMBAI 6. 9=> / GUARD FILE ' / BY ORDER, (/') * (DY./ASSTT. REGISTRAR) , * + / ITAT, MUMBAI