TOSHKUMAR HARIBHAU PATIL, MUMBAI V. INCOME TAX OFFICER WARD-2(4), KALYAN

ITA 6240/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0512 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 13-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Keywords: Additional evidence
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.6240/M/2017 ASSESSMENT YEAR: 2013-14 MR. TOSHKUMAR HARIBHAU PATIL, M/S. SAI INDUSTRIES, C 2/10, S.NO.165/A/4, RADHESHYAM INDUSTRIAL ESTATE, ASANGOAN, SHAHPUR, THANE- 421 601 PAN: AAMPF0328C VS. ITO WARD 2(4), RANI MENSION, MURBAD ROAD, KALYAN WEST PIN-421 306 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI DEVENDRA JAIN, A.R. REVENUE BY : MS. N. HEMALATHA, D.R. DATE OF HEARING : 21.12.2017 DATE OF PRONOUNCEMENT : 31.01.2018 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 21.07.2017 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE ONLY GROUNDS IN THIS APPEAL TAKEN BY THE ASS ESSEE ARE IN RELATION TO CONFIRMATION OF DISALLOWANCE OF PURCHAS ES OF RS.7,24,716/- U/S 40(A)(IA) AND CONFIRMATION OF DIS ALLOWANCE OF LABOUR CHARGES OF RS.5,82,202/- U/S 40(A)(IA) OF TH E ACT. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: ITA NO.6240/M/2017 MR. TOSHKUMAR HARIBHAU PATIL 2 ON GOING THROUGH THE PROFIT AND LOSS ACCOUNT, AS PE R SCHEDULE 'I', THE ASSESSEE HAS INCURRED EXPENSES ON ACCOUNT OF LABOUR CHARGES AND DIRECT EXPENSES. IN THE COURSE OF ASSESSMENT PR OCEEDINGS, THE COMPLETE DETAILS OF THE ABOVE EXPENSES WERE CALLED FOR. THE ASSESSEE HAS SUBMITTED THE LIST OF PARTIES OF LABOUR PURCHAS E OF RS.22,64,958/-. THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE ON RS.19,65,609/-. THE ASSESSEE FAILED TO MAKE TDS AS PER THE PROVISIO NS OF SECTION 194C. THEREFORE, THE ADDITION OF RS.19,65,609/- WA S DISALLOWED UNDER SECTION 40(A)(IA) OF THE ACT READ WITH SECTIO N 194C OF THE ACT. 4. BEFORE THE LD. CIT(A) THERE WAS NO EXPLANATION IN RESPECT OF RS.6,58,691/- AND THE APPEAL WAS PARTLY ALLOWED BY THE LD. CIT(A). 5. BEFORE ME ASSESSEE DID NOT RAISE ANY GROUND REGA RDING THE ADDITION OF RS.6,58,691/-. IN RESPECT OF ADDITION OF RS.6,24,614/ - ASSESSEE SUBMITTED THAT THE ADDITION IS NOT CALLED FOR BECAUSE SECTION 194 DOES NOT APPLY TO THIS PAYMENT. THE ASSESSEE H AS SUBMITTED THE BILLS WHICH WERE NOT DISCUSSED IN THE GROUNDS OF AP PEAL AS WELL AS STATEMENT OF FACTS. THEREFORE, LD. CIT(A) DID NOT ADMIT THE SAME. BUT LD. A.R. SUBMITTED THAT IN ITA NO.6685/M/2016 T HE SIMILAR KIND OF ADDITIONAL EVIDENCE WAS SUBMITTED BEFORE THE LD. CIT(A) AND TRIBUNAL HAS RESTORED THIS MATTER BACK TO THE FILE OF AO, THEREFORE THIS MATTER MAY BE RESTORED TO AO. 6. I HAVE GONE THROUGH THE ORDER OF TRIBUNAL IN ITA NO.6685/M/2016 AND ADMIT THE BILLS. HENCE, I RESTO RE THIS MATTER BACK TO THE FILE OF AO TO DECIDE THE MATTER AFRESH IN ACCORDANCE WITH ITA NO.6240/M/2017 MR. TOSHKUMAR HARIBHAU PATIL 3 LAW AFTER CONSIDERING THE ADDITIONAL EVIDENCE BY AO . IN THE RESULT, THE ADDITION OF RS.7,24,716/- IS RESTORED TO AO. 7. IN RESPECT OF ADDITION OF RS.5,82,202/-, THE LD. A.R. RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. ANSAL LAND MARK TOWNSHIP (P.) LTD. (2015) 61 TAXMAN N.COM 45 (DELHI) WHEREIN THE HIGH COURT HAS HELD THAT WHERE ASSESSEE MADE PAYMENTS WITHOUT DEDUCTING TAX AT SOURCE UNDER SECT ION 194J, SINCE PAYEE HAD FILED RETURN AND OFFERED SUM RECEIVED FRO M ASSESSEE TO TAX, IMPUGNED DISALLOWANCE MADE UNDER SECTION 40(A)(IA) DESERVED TO BE DELETED. 8. I FIND THAT DEDUCTEE HAS ALREADY DEDUCTED TAX AT SOURCE. THEREFORE, FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P.) LTD. (SUPRA), I RESTORE THIS ISSUE BACK TO THE FILE OF THE AO TO DE CIDE IT AFRESH AS PER LAW. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 31.01.2018. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 31.01.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI ITA NO.6240/M/2017 MR. TOSHKUMAR HARIBHAU PATIL 4 THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.