Kaushikkumar J. Sureja, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(3), RAJKOT-GUJARAT

ITA 651/RJT/2012

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7748 (ITAT-RAJKOT)
• Duration Of Justice: 5 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-03-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 24-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI PRAKASH D R
• Section: 194C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT , ! '# $ , % ! & ' BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER #./ I.T.A. NO.651/RJT/2012 ( / ASSESSMENT YEAR : 2005-06) KAUSHIKKUMAR JAYANTILAL SUREJA, PROP OF M/S. SHREEJI CONSTRUCTION CO., C-17, AALAP AVENUE, UNIVERSITY ROAD, RAJKOT - 5 / VS. THE ITO, WARD 1(3), RAJKOT. !* # ./ + # ./ PAN/GIR NO. : ALCPS 9790 G ( *, / APPELLANT ) .. ( -*, / RESPONDENT ) *, . / APPELLANT BY : -- NONE -- -*, / . / RESPONDENT BY : SHRI RAVI PRAKASH, D.R. 0 1 / 2 / DATE OF HEARING 1 5 /03/2018 34 / 2 / DATE OF PRONOUNCEMENT 10 / 0 5 /201 8 5 / O R D E R PER MAHAVIR PRASAD JUDICIAL MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE APPELLATE ORDER OF THE COMMISS IONER OF INCOME TAX(APPEALS)-II, RAJKOT [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- II/RJT/T599/09-10 DATED 22/10/2012 ARISING IN THE ASSESSMENT ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 14/09 /2007 RELEVANT TO ASSESSMENT YEAR (AY) 2005-06. ITA NO.651/RJT/ 2012 KAUSHIKKUMAR JAYANTILAL SUREJA VS. ITO ASSESSMENT YEAR 2005-06 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AND FACTS IN NOT CONSIDERING THE SETTLED LAW THAT ONLY 8% OF CONTRACT RECEIPT ADDED OF RS.9,88,045/- WAS REQU IRED TO BE TAXED AND BALANCE OUGHT TO HAVE BEEN DELETED. THE A DDITION NEEDS SUITABLE MODIFICATION. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND FACTS IN CONFIRMING ADDITION OF RS.9,88, 045/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF SHOWING LESS CONTRACT RECEIPT WITHOUT TAKING IN TO CONSIDERATION THE EXPL ANATION GIVEN BY THE APPELLANT AS WELL AS THE ACCOUNTING ST ANDARD 7 ISSUED BY THE CHARTERED ACCOUNTANTS OF INDIA. THE S AME NEEDS DELETION. 3. WITHOUT PREJUDICE, THE LD. CIT(A) HAS ERRED IN L AW AND FACTS IN NOT CONSIDERING THAT ADDITION OF RS.9,88,045/- WAS ALREADY OFFERED TO TAX IN A. Y. 2006-07 AND THUS IT BECAME DOUBLE ADDITION AND DOUBLE TAXATION OF THE SAME AMOUNT IN 2 DIFFERENT A.YS. THE ADDITION NEEDS DELETION. 4. WITHOUT PREJUDICE, THE LD,. CIT(A) HAS ERRED IN LAW AND FACTS IN NOT CONSIDERING THAT ADDITION OF RS.9,88,045/- WAS ALREADY OFFERED TO TAX IN A.Y. 2006-07 AND THUS IT BECAME D OUBLE ADDITION AND DOUBLE TAXATION OF THE SAME AMOUNT IN 2 DIFFERENT A.Y.S AND THEREFORE THE SAID ADDITION SHOULD HAVE B EEN ORDERED FOR DELETION IN A.Y. 2006-07 WHEN HE HAS CONFIRM TH E SAME IN A.Y. 2005-06. THE ACTION OF THE LD. CIT(A) NEEDS CO RRECTION. 5. TAKING INTO CONSIDERATION THE LEGAL AS WELL AS F ACTUAL ASPECT NO ADDITION AMOUNTING TO RS.9,88,045/- OUGHT TO HAVE B EEN CONFIRMED AND ONLY 8% OF THE SAME OUGHT TO HAVE BEE N DIRECTED TO TAX AND BALANCE OUGHT TO HAVE BEEN DELE TED FOLLOWING THE SETTLED LAW. THE ADDITION NEEDS DELET ION ACCORDINGLY. 6. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AN D/OR SUBSTITUTE ANY OR ALL GROUNDS OF APPEAL BEFORE THE ACTUAL HEARING TAKES PLACE. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E, THE ASSESSEE IS A PROPRIETOR OF M/S. SHREEJI CONSTRUCTION COMPANY ENG AGED IN THE BUSINESS OF BUILDING CONSTRUCTION AND CONTRACT WORK . ITA NO.651/RJT/ 2012 KAUSHIKKUMAR JAYANTILAL SUREJA VS. ITO ASSESSMENT YEAR 2005-06 - 3 - 4. THE LD. ASSESSING OFFICER OF VERIFICATION OF THE PROFIT AND LOSS ACCOUNT AND THE TDS CERTIFICATES ANNEXED WITH THE R ETURN OF INCOME ARRIVED AT A DIFFERENCE IN CONTRACT RECEIPT AMOUNTI NG TO RS.9,88,045/- . THEREAFTER, APPELLANT WAS ASKED TO EXPLAINED THE DIFFERENCE. 5. IN PURSUANCE TO THE SAID NOTICE, ASSESSEE SUBMIT TED THAT THE AMOUNT OF RS.48,156/- PERTAINS TO SERVICE TAX CHARG ED IN BILL AS PER THE PROVISIONS OF THE SERVICE TAX. HOWEVER, THE PAY EE PARTY HAS DEDUCTED THE TDS ON GROSS AMOUNT INCLUDING THE AMOU NT OF SERVICE TAX AS PER SECTION 194C OF THE ACT. WITH REGARD TO CONTRACT RECEIPT OF BALANCE AMOUNT OF RS.9,39,889/-, IT WAS CLARIFIED B Y THE ASSESSEE THAT THE SAID RECEIPT HAS BEEN RECORDED IN THE F.Y.2005- 06 RELEVANT TO A.Y. 2006-07 DUE TO THE REASON THAT THERE WAS A DISPUTE WITH THE PAYEE WITH WHOM THE CONTRACT WORK WAS GOING ON I.E. M/S. K. G. INTIMATE WARE PVT. LTD. THE WORK UNDERTAKEN BY THE APPELLANT WAS DISALLOWED SINCE AS PER THE OPINION OF THE PARTY, IT WAS NOT A S PER THE SPECIFICATION GIVEN IN THE CONTRACT AND HENCE THE S AID AMOUNT WAS NOT PAID. HOWEVER, THE SAID AMOUNT WAS FINALLY SETT LED IN THE F.Y. 2005-06 AND AS PER THE ACCOUNTING STANDARD 7 ISSUED BY CHARTERED ACCOUNTANTS OF INDIA, THE SAID RECEIPT WAS SHOWN IN THE BOOKS FOR THE F.Y. 2005-06 RELEVANT TO THE A.Y. 2006-07 AND OFFER ED TO TAX BY THE APPELLANT. 6. BUT ASSESSING OFFICER DID NOT ACCEPT THE EXPLANA TION TENDERED BY THE APPELLANT AND MADE ADDITION OF RS.9,88,045/- ON ACCOUNT OF SHOWING LESS CONTRACT RECEIPT. 7. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PASSED AN EX-PARTE ORDER AND CONFIRMED THE ACTION OF THE LD. AO. ITA NO.651/RJT/ 2012 KAUSHIKKUMAR JAYANTILAL SUREJA VS. ITO ASSESSMENT YEAR 2005-06 - 4 - 8. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. ON BEHALF OF THE ASSESSEE, LD. AR MOVED AN A PPLICATION FOR ADJOURNMENT AND SAME IS DECLINED, AS THERE IS NO RE ASON STATED THEREIN. WE NOTICE THAT LD. CIT(A) HAS PASSED AN EX-PARTE ORDER IN A SUMMARY MANNER AND THE APPEAL HAS DISMISSED IN LIMINE FOR NON- PROSECUTION. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONSIDER EXPEDIENT IN THE LARGER INTEREST OF THE JUSTICE, SE T ASIDE THE ORDER OF THE LD. CIT(A) AND SEND IT BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE APPEAL AFRESH AFTER GIVING AN OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTE D TO EXTEND FULLY CO-OPERATION WITH THE LD. CIT(A) AND COMPLY WITH DI RECTIONS OF CIT(A) FOR DISPOSAL OF THIS APPEAL. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 10/05/2018 SD/- SD/- ( ) ($ ) ! % ! ( PRADIP KUMAR KEDIA ) ( MAHAVIR PRASAD ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 10/ 05 /2018 PRITI YADAV, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -*, / THE RESPONDENT. 3. #8# 2 92 / CONCERNED CIT 4. 92 () / THE CIT(A)-II, RAJKOT. 5. :; < %2%0 , , /DR,ITAT, RAJKOT 6. < = 1 / GUARD FILE. / BY ORDER, - :2 %2 //TRUE COPY// / ! '#$ ( DY./ASSTT.REGISTRAR) ! $%! &, / ITAT, RAJKOT