DCIT 14(3)(1), MUMBAI V. RELIANCE BIG ENTERTAINMENT P. LTD, MUMBAI

ITA 635/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8679 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JITENDRA B SANGHAVI
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 635/MUM/2015 ASSESSMENT YEAR: 2011-12 DCIT 14(3)(1) VS. M/S. RELIANCE BIG ENTERTAINMENT 453 AAYAKAR BHAVAN PVT. LTD. , 3 RD FLOOR, RELIANCE M.K. MARG ENERGY CENTRE, SANTACRUZ EAST, MUMBAI 400020 MUMBAI 400055 PAN NO. AAFCA6658L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JITENDRA B SANGHAVI & SHRI AMIT KHATIWALA, AR REVENUE BY: SHRI PURUSHOTTAM KUMAR, DR DATE OF HEARING : 23/01/20 17 DATE OF PRONOUNCEMENT: 27/01/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE REVENUE. THE RELEVAN T ASSESSMENT YEAR IS 2011-12. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) 21, MUMBAI AND ARISES OUT OF ORDER U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE REVENUE READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN PASSING A PERVERSE ORDER NO APPRECIATING THE FACT TH AT RELATED ISSUE IS OF 26AS AND NOT AIR/CIB DATA. 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) FAILED TO APPRECIATE THE PROVISIONS OF SECTION 199 OF THE ACT , WHEREIN IT IS CLEARLY MENTIONED THAT THE TDS DEDUCTED AND CLAIMED IS DEEMED T O BE INCOME RECEIVED. ITA NO. 635/MUM/2015 2 FURTHER ERRED IN NOT APPRECIATING THE RULE 37BA WHIC H IS EFFECTIVE FROM ASSESSMENT YEAR 2011-12 AND HENCE, IS APPLICABLE IN THE PRESENT CASE. 1.2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE ON I TS OWN ADMITTED FAILURE TO GIVE VERIFIABLE DETAILS AS APPEARING IN PARA 4.1 OF THE A SSESSMENT ORDER. 3. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSING OF FICER(AO) ON VERIFICATION OF DETAILS OF INCOME AS PER FORM 26AS FOUND THAT THE ASSESSEE HAD NOT OFFERED INCOME TO THE TUNE OF RS. 2,08,15,063/-, HOWEVER, IT HAS CLAIMED CREDIT OF TDS ON THESE INCO MES. AS THE ASSESSEE FAILED TO RECONCILE THE ABOVE AMOUNT, THE AO DISALLOWED THE SAME AND ADDED IT BACK TO THE INCOME OF THE ASSESSE E FOR THE YEAR UNDER CONSIDERATION. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT(A). WE FIND THAT THE LEARNED CIT(A) IN THE APPELLATE ORDER DATED 05.11.2014 HAS HELD AS UNDER: IN VIEW OF THE ABOVE DECISION, THE A.O. IS DIRECTED TO ISSUE NOTICES UNDER SECTION 133(6) TO ALL THE PARIES WHICH ARE IN AIR/C IB DATA AND OBTAIN INFORMATION FROM THE RESPECTIVE AUTHORITIES AND FURN ISHED THE SAME TO THE APPELLANT AFTER PROVIDING THE OPPORTUNITY IF THE AP PELLANT FURTHER COULD NOT RECONCILE, IF THE DETAILS ARE FURNISHED THEN THE ISSU E CAN BE SUSTAINED. EVEN AFTER FURNISHING OF THE DETAILS, A.O. COULD NOT RECON CILE THE AMOUNT, THEN THE AMOUNT IS DELETED. GROUND OF APPEAL IS SUBJECT TO VE RIFICATION. 5. THE LEARNED DR SUPPORTS THE ORDER PASSED BY THE AO HE REFERS TO SECTION 199 OF THE ACT RELATING TO CREDIT FOR TA X DEDUCTED. 6. ON THE OTHER HAND, THE LEARNED COUNSEL OF THE ASSES SEE SUBMITS THAT THE LEARNED CIT(A) HAS PASSED AN ORDER HOLDING THAT THE SAID GROUND OF APPEAL IS SUBJECT TO VERIFICATION. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THERE IS NO DISPUTE OF THE FACT THAT THE LEARNED CIT(A) HAS DIRECTED THE AO TO ISSUE NOTICES U/S 133(6) TO THE CONCERNED PARTIES AND OBTAIN INFORMATION AND THEREAFTER PASS A FRESH ORDER AS PER THE PROVISIONS OF THE ACT AFTER GIVING A REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE GIVEN FACTS IN THE IN STANT CASE, THE ABOVE ORDER OF THE LEARNED CIT(A) IS A PROPER ONE. WE UPH OLD THE SAME. ITA NO. 635/MUM/2015 3 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.01.2017 SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI; DATED: 27.01.2017 BISWAJIT, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI