K.Manickam, Salem V. ITO, Salem

ITA 624/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73689 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , ! , ' # $ BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / I.T.A. NO. 624/MDS/2013 / ASSESSMENT YEAR : 2009-10 K. MANICKAM, M/S.THIRUMAHAL ENGINEERING WORKS, 16/80, KARUMALAIKOODAL, METTUR DAM, SALEM DISTRICT 636 404 [PAN: AKOPH 3714 H] ( !% /APPELLANT) VS INCOME TAX OFFICER, WARD-III(1), SALEM ( &'!% /RESPONDENT) / APPELLANT BY : SHRI S.SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI SHAJI P.JACOB, ADDL.CIT / DATE OF HEARING : 13-02-2014 ! / DATE OF PRONOUNCEMENT : 21-02-2014 #( / O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-SALEM, D ATED 28-02-2013 RELEVANT TO THE ASSESSMENT YEAR (AY) 200 9-10. I.T.A. NO. 624/MDS/2013 2 2. THE ASSESSEE IS A WORKS CONTRACTOR. THE ASSESSE E FILED HIS RETURN OF INCOME FOR THE AY. 2009-10 ON 30-09-2009 DECLARING HIS INCOME AS ` 5,88,460/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S. 143(2) OF THE INCOME TAX A CT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) WAS ISSUED TO THE A SSESSEE ON 31-08- 2010. ON VERIFICATION OF FORM NO.26AS, IT TRANSPIR ED THAT THE ASSESSEE HAS NOT DISCLOSED CERTAIN INTEREST RECEIPT S AND CONTRACT RECEIPTS FOR THE RELEVANT AY. IN THE RETURN OF INC OME, THE ASSESSEE HAD DECLARED INTEREST INCOME FROM KARUR VYSYA BANK TO THE TUNE OF ` 52,510/- ONLY. WHEREAS, ON VERIFICATION OF FORM NO .26AS, THE REVENUE AUTHORITIES FOUND THAT THE ASSESSEE HAS REC EIVED INTEREST OF ` 2,45,091/-. THE ASSESSEE SUBMITTED BEFORE THE ASSE SSING OFFICER THAT HE HAS NOT RECEIVED TDS CERTIFICATE FO R THE DIFFERENTIAL INTEREST INCOME OF ` 1,92,581/-. SIMILARLY, IN RESPECT OF CONTRACT RECEIPTS AS PER FORM 26AS, TOTAL RECEIPTS FROM V. S UBRAMANIYAM & CO WERE ` 1,04,26,527/- AND FROM KIRLOSKAR BROTHER LTD., REC EIPTS WERE ` 15,16,437/-. WHEREAS, THE ASSESSEE HAD DISCLOSED RECEIPT OF ` 70,03,715/- FROM V. SUBRAMANIYAM & CO AND ` 12,93,392/- FROM KIRLOSKAR BROTHER LTD. THUS, THER E WERE DIFFERENCE OF ` 34,22,812/- AND ` 2,23,045/- RESPECTIVELY FROM THE AFORESAID PARTIES. THE ASSESSEE FILED LETTER BEFOR E THE ASSESSING OFFICER ON 28-10-2011, ADMITTING THAT CONTRACT RECE IPTS WERE I.T.A. NO. 624/MDS/2013 3 OMITTED TO BE DISCLOSED DUE TO NON-RECEIPT OF TDS C ERTIFICATE AND AGREED TO ADMIT 8% OF GROSS CONTRACT RECEIPTS AS AD DITIONAL INCOME. THE ASSESSING OFFICER VIDE ORDER DATED 23- 12-2011, INTER ALIA MADE ADDITION OF THE ENTIRE AMOUNT OF UN-DISCLOSED INTEREST AND CONTRACT RECEIPTS. THE ASSESSEE, AGGRIEVED AGAINST THE ASSESSMENT ORDE R DATED 23-12-2011, PREFERRED AN APPEAL BEFORE THE CI T(APPEALS). THE CIT(APPEALS) VIDE ORDER DATED 28-02-2013, CONFI RMED THE ADDITION MADE BY THE ASSESSING OFFICER ARISING OUT OF DIFFERENTIAL IN THE INTEREST AND CONTRACT RECEIPTS. AGGRIEVED AGAINST THE ORDER OF THE CIT(APPEALS), TH E ASSESSEE HAS COME IN SECOND APPEAL BEFORE THE TRIBU NAL. 3. SHRI S.SRIDHAR, APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT AS PER FORM NO.26AS, THE TOTAL INTER EST RECEIVED IS ` 2,28,638.42 AND NOT ` 2,45,091/- AS STATED BY THE ASSESSING OFFICER. THERE IS AN ARITHMETICAL MISTAKE IN THE T OTAL OF THE AMOUNT IN THE CASE OF BANK INTEREST. IN RESPECT OF CONTRA CT RECEIPTS, THE LD.COUNSEL CONTENDED THAT THE CIT(APPEALS) HAS MECH ANICALLY FOLLOWED THE ORDER OF THE ASSESSING OFFICER INSTEAD OF APPLYING HIS OWN MIND AND DECIDING THE ISSUE ON MERITS. THE LD. COUNSEL I.T.A. NO. 624/MDS/2013 4 VEHEMENTLY OPPOSED THE IMPUGNED ORDER AND PRAYED FO R SETTING ASIDE THE SAME. 4. ON THE OTHER HAND, SHRI SHAJI P.JACOB, APPEARING ON BEHALF OF THE REVENUE SUBMITTED THAT THE ORDER OF THE CIT( APPEALS) IS WELL REASONED AND DETAILED, NO INTERFERENCE IS REQUIRED IN THE IMPUGNED ORDER. THE ASSESSEE AT NO STAGE FILED ANY CONFIRMA TION LETTER EITHER FROM THE BANK OR FROM THE PARTIES STATING THAT THE TDS HAS BEEN WRONGLY DEDUCTED. THE LD.DR PRAYED FOR DISMISSAL O F THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF BOTH THE SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE LD.COUNSEL FOR THE ASSE SSEE HAS NOT BEEN ABLE TO SHOW THAT AT ANY STAGE, THE ASSESSEE H AS TAKEN UP THE MATTER EITHER WITH THE BANK OR WITH THE CONTRAC TEES FOR RECTIFICATION OF THE ALLEGED EXCESS DEDUCTING OF TA X AT SOURCE. THE LD.COUNSEL HAS MADE AN ALTERNATE PRAYER TO REMIT TH E FILE BACK TO THE ASSESSING OFFICER FOR VERIFICATION OF THE FACTS . WE DO NOT DEEM IT APPROPRIATE TO GRANT SECOND INNINGS TO THE ASSES SEE FOR MERE VERIFICATION OF THE TDS AMOUNTS FROM THE BANK OR TH E CONTRACTEES. I.T.A. NO. 624/MDS/2013 5 THE ASSESSEE COULD HAVE DONE THIS EXERCISE WITH DUE DILIGENCE IN THE FIRST STAGE ITSELF. BE THAT AS IT MAY, IT IS NOT THE CASE OF THE ASSESS EE THAT THE INTEREST HAS NOT BEEN RECEIVED BY HIM IN THE AY UND ER CONSIDERATION OR THE SUBSEQUENT AYS. AS FAR AS THE CONTRACT RECEIPTS ARE CONCERNED, THE ASSESSEE HAS ADMITTED T HE FACT BEFORE THE ASSESSING OFFICER THAT THE CONTRACT RECEIPTS TO THE TUNE OF ` 38,33,438/- WERE OMITTED TO BE DISCLOSED. WE DO NO T FIND ANY MERIT IN THE SUBMISSIONS MADE BY THE LD.COUNSEL FOR THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS DISMISSED BEING DEVOI D OF MERIT. 6. BEFORE PARTING WITH THE ORDER, WE WOULD LIKE TO ADD THAT IF ANY AMOUNT IS BROUGHT TO TAX IN THE AY UNDER CONSIDERAT ION, ASSESSING OFFICER SHALL TAKE CARE THAT THE SAME RECEIPTS ARE NOT ASSESSED IN THE SUBSEQUENT AY. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED ON FRIDAY, THE 21 ST FEBRUARY, 2014 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) (VIK AS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER DATED: 21 ST FEBRUARY, 2014 TNMM COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR