ACIT CIR. 1, THANE, THANE V. ABSOTHERM SERVICES PVT. LTD., THANE

ITA 6476/MUM/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5541 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B N RAOAR
• Keywords: TDS

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , .., , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.6476/MUM/2016 ASSESSMENT YEAR: 2011-12 ACIT CIRCLE-1 ROOM NO.22, B-WING AHSAR IT PARK WAGLE INDUSTRIAL ESTATE ROAD NO.16Z THANE-400604 / VS. M/S. ABSORTHERM SERVICES PRIVATE LIMITED B-1, BASEMENT TARA NIWAS, NR. BRAHMIN ENGLISH SCHOOL, BAJI PRABHU DESHPANDE MARG THANE(W)-400 602 ( # / REVENUE) ( $%& ' /ASSESSEE) P.A. NO.AAGCA0631A $%& ' / ASSESSEE BY SHRI B.N.RAO-AR # / REVENUE BY SHRI RAJESHWAR YADAV-DR ( #)* ' + / DATE OF HEARING : 05/11/2018 *' + / DATE OF PRONOUNCEMENT 07/12/2018 / O R D E R PER JOGINDER SINGH (VICE PRESIDENT) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 24/08/2016 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE GROUND RAISED IS WHETHER THE FIRST APPE LLATE ITA NO.6476/MUM/2016 ABSORTHERM SERVICES PRIVATE LIMITED 2 AUTHORITY ERRED IN RESTRICTING THE ADDITION OF RS.11,66,99,520/- TO RS.15,25,864/- IGNORING THE RE MAND REPORT FROM THE LD. ASSESSING OFFICER THAT NONE OF THE CUSTOMER CONFIRMED THAT THEY HAD WRONGLY DEDUCTED T DS ON THE PAN OF THE ASSESSEE IN RESPECT OF SERVICES PROV IDED BY ABSOTHERM FACILITIES MANAGEMENT SERVICES LTD. AND F URTHER CONTRADICTORY FINDING IN PARA 5.5(II) OF THE IMPUGN ED ORDER. 2. DURING HEARING, THE LD. CIT-DR, SHRI RAJESHWAR YADAV, STRONGLY DEFENDED THE ADDITION MADE BY THE L D. ASSESSING OFFICER BY ADVANCING ARGUMENTS WHICH IS I DENTICAL TO THE GROUND RAISED, EXPLAINING THAT THE LD. ASSES SING OFFICER ADDED THE DIFFERENCE OF TWO FIGURES. IT WAS SUBMITTED THAT IF THE TDS IS CLAIMED THEN YOU CANNOT SAY THAT THE AMOUNT BELONGS TO DIFFERENT FIRMS. PLEA WAS ALSO RA ISED THAT THE IMPUGNED ORDER IS DATED 24/08/2016 AND TILL THE DATE THE FIGURE HAS NOT BEEN RECONCILED BY THE ASSESSEE. OUR ATTENTION WAS INVITED TO VARIOUS PARAS OF THE IMPUG NED ORDER AND SPECIALLY THE CONTRADICTING FINDING CONTAINED I N THE IMPUGNED ORDER. ON THE OTHER HAND, SHRI B. N.RAO., LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE IMPUGNED ORD ER BY ITA NO.6476/MUM/2016 ABSORTHERM SERVICES PRIVATE LIMITED 3 CLAIMING THAT THE FIGURES WERE RECONCILED AND THE A SSESSEE IS HAVING NO CONTROLS OVER OTHER PERSONS. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IN ITS ORIGINAL RETURN, DECLA RED LOSS OF RS.2,72,67,599/- AND THEREAFTER THESE LOSS WERE REV ISED TO RS.1,48,00,900/-. THE LD. ASSESSING OFFICER ASSESSE D THE INCOME AT RS.10,18,98,620/- MAKING AN ADDITION OF RS.11,66,99,520/-. THE LD. ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT MADE ADDITION OF RS.66,62,74,520/- ( AS PER FORM NO.26AS), RS.3,50,000/- (AD-HOC DISALLOWANCE) AND RS.75,000/- (DONATION). THE CLAIM OF THE ASSESSEE B EFORE THE LD. ASSESSING OFFICER WAS THAT THE GROUP HAS FORMED A NEW COMPANY UNDER THE NAME STYLE ABSOTHERM FACILITY MANAGEMENT PVT. LTD. AND THE INCOME EARNED AND SHO WN IN THE HANDS OF THAT COMPANY WERE INADVERTENTLY SHOWN AS PAYMENT TO THE APPELLANT COMPANY BY THE SERVICE REC IPIENT. AS PER THE ASSESSEE, THE SERVICE RECIPIENT HAVE DED UCTED TAX FROM THE ASSESSEE AND NET OFF THE TAXES IS PAID TO THE COMPANY OR ITS ASSOCIATE COMPANY. HOWEVER, WE FIND THAT THE ITA NO.6476/MUM/2016 ABSORTHERM SERVICES PRIVATE LIMITED 4 ASSESSEE HASNT EXPLAINED THE FACTUAL POSITION AND EVEN THERE IS A CONTRADICTORY FINDING THE IMPUGNED ORDER IN PA RA-5.4, 5.5. THUS, WE DIRECT THE ASSESSEE TO RECONCILE THE FIGURES/CLAIM BEFORE THE LD. ASSESSING OFFICER BY F URNISHING NECESSARY EVIDENCE. THE LD. ASSESSING OFFICER IS DI RECTED TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACC ORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEIN G HEARD. THUS, THE APPEAL OF THE REVENUE IS ALLOWED FOR STAT ISTICAL PURPOSES. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR S TATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 05/11/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) / ACCOUNTANT MEMBER '#$ / VICE PRESIDENT ( ) MUMBAI; 0 DATED : 07/12/2018 F{X~{T? P.S/. $. . , %&'()*)+' / COPY OF THE ORDER FORWARDED TO : 1. 123 / THE APPELLANT 2. 423 / THE RESPONDENT. ITA NO.6476/MUM/2016 ABSORTHERM SERVICES PRIVATE LIMITED 5 3. 5 5 ( 6' , ( 1 ) / THE CIT, MUMBAI. 4. 5 5 ( 6' / CIT(A)- , MUMBAI 5. 8#9$'$ , 5 1+1 , ( ) / DR, ITAT, MUMBAI 6. :%;) / GUARD FILE. / BY ORDER, '/ (DY./ASSTT. REGISTRAR) , ( ) / ITAT, MUMBAI