Appeal details
Counselvise Citation
[2018] 126 COUNSELVISE.COM (IT) 2853 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 3 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
16-03-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
D
Assessment Year
2008-2009
Appeal Filed On
08-12-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D , NEW DELHI BEFORE SH. BHAVNESH SAINI , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO .6675 /DE L/ 2014 ASSESSMENT YEAR: 2008 - 09 DCIT, CIRCLE - 13(2), NEW DELHI VS. M/S. JUNEJA PROJECT SERVICES PVT. LTD., 23, DISDC, PHASE - II, SCHEME - II, NEW DELHI PAN : AABCJ3154G ( APPELLANT ) (RESPONDENT) APPELLANT BY SH. AMIT JAIN, SR.DR RESPONDENT BY MS . JYOTI N A RULA, CA DATE OF HEARING 15.02.2018 DATE OF PRONOUNCEMENT 16.03.2018 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE RE VENUE IS DIRECTED AGAINST ORDER DATED 15/09/2014 PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - VIII, NEW DELHI [ IN SHORT THE LD.CIT(A) ] FOR ASSESSMENT YEAR 2008 - 09 RAISING FOLLOWING GROUNDS: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT OFFER COMPLETE INCOME FOR TAXATION AS WAS APPEARING IN TDS CERTIFICATES, THEREBY NOT ACCOUNTING FOR THE REVENUE ON THIS COUNT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT RS.1,3815,486/ - AS ADVANCE RECEIVED FROM DLF EMPORIO RESTAURANTS LTD. AND NOT TO GIVE TAX CREDIT FOR THE 2 TDS AMOUNTING TO RS.3,13,059/ - DEDUCTED THEREON IN THE RELEVANT ASSESSMENT YEAR. 3. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 4. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR FOREGO ANY GROUND(S) OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. B RIEFLY STATED FACTS OF THE CASE ARE THAT IN THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED AMOUNT OF RS. 1, 38,15, 486/ - FROM DLF EMPORIO R ESTAURANT LTD . ( IN SHORT THE DLF EMPORIO R ESTAURANT ). IN THE TDS CERTIFI CATE ISSUED BY THE DLF EMPORIO R ESTAURANT, THE AMOUNT S WERE SHOWN AS PAYMENT TO CONTACTOR. THIS AMOUNT WAS NOT SHOWN BY THE ASSESSEE IN ITS BUSINESS RECEIPTS. DURING FIRST ROUND OF PROCEEDING, THE LD. CIT(A) HELD THE AMOUNT AS ADVANCE RECEIVED AND NOT PART OF THE BUSINESS RECEIPT FOR THE YEAR UNDER CONSIDERATION. WHEN THE MA TTER CAME UP BEFORE THE INCOME - TAX APPELLATE T RIBUNAL ( IN SHORT THE TRIBUNAL ) IN FIRST - ROUND, THE T RIBUNAL OBSERVED THAT FROM THE FACTS ON RECORD, IT WAS NOT CLEAR , WHETHER THE AMOUNT RECEIVED WAS ADVANCE AND , THEREFORE, THE MATTER WAS RESTORED BACK TO THE FILE OF LD. CIT - (A) FOR VERIFYING THE FA CTS WHETHER THE SAID SUM OF RS.1,38,15, 486/ - RECEIVED FROM THE DLF EMPORIO R ESTAURANT LTD . WAS IN THE NATURE OF ADVANCE AND WHETHER THE ASSESSEE INCURRED ANY EXPENDITURE ON WORK TOWARDS THE SUM RECEIVED FROM THE DLF EMPORIO R ESTAURANT LTD. THE RELEVANT DIRECT ION OF THE TRIBUNAL IS REPRODUCED AS UNDER: 3 7. THE TDS CERTIFICATE OF DLF EMPORIO RESTAURANTS LIMITED PLACED AT PAGE 17 OF THE PAPER BOOK SHOWS THAT THE NATURE OF THE PAYMENT ON WHICH TDS HAD BEEN DEDUCTED IS A PAYMENT TO CONTR ACTORS. THE AMOUNT RECEIVED AS PER CERTIFICATE IS RS.1,38,15,486/ - . ASSESSEE HAD NOT DISCLOSED THIS RECEIPT. AS PER ASSESSEE S CLAIM, NO BILL WAS RAISED DURING THE YEAR ENDING 31.03.2008. NONE OF THE AUTHORITIES BELOW HAVE EXAMINED THIS FACT. WHAT WAS THE BASIS ON WHICH THIS FIGURE WAS ARRIVED AT? WHAT WAS THE CORRESPONDING EXPENDITURE? HOW THIS FIGURE CF. RECEIPT IS IN ODD FIGURES. NOTHING HAD BEEN BROUGHT ON RECORD. IN VIEW OF THESE FACTS, THIS CLAIM OF ASSESSEE PRIMA FACIE APPEARS TO BE UNTENABLE. THE TD S CERTIFICATE SHOWS THAT THE AMOUNT OF RECEIPT IS IN ODD FIGURES. THE TDS CERTIFICATE DOES NOT SHOW THAT THE PAYMENT WAS AN ADVANCE. THE PAYMENT IN ODD FIGURES SHOWS THAT THE AMOUNT OF RS. 1,38,15,486/ - IS BASED ON CERTAIN CALCULATIONS. NOTHING HAS BEEN BR OUGHT ON RECORD IN THIS REGARD. FURTHER, THE CORRESPONDING EXPENDITURE MADE ON - THIS HAS ALSO NOT BEEN IDENTIFIED NOR IT HAS BEEN REDUCED FROM THE PROFIT AND LOSS ACCOUNT. ASSESSEE HAS CLAIMED FULL AMOUNT OF THE TDS OF RS. 3,13,059/ - ON THE RECEIPT FROM DL F EMPORIO RESTAURANT LTD. DURING THE YEAR. THE CIT (A) HAS SIMPLY WRITTEN THAT IT WAS MERELY AN ADVANCE BUT NO FINDING OF FACT IS AVAILABLE ON THE RECORD TO JUSTIFY THE VIEW. CONSIDERING THESE FACTS, WE FIND THAT THE CIT (A) IS NOT JUSTIFIED IN GRANTING RE LIEF. THERE IS NO MATERIAL ON RECORD TO ARRIVE AT SUCH FINDING. IN OUR CONSIDERED VIEW, THIS ISSUE NEEDS EXAMINATION TO ARRIVE AT CORRECT FACTS OF THE CASE. CONSIDERING THESE FACTS, WE RESTORE THE ISSUE TO THE FILE OF THE CIT (A) FOR A FRESH ADJUDICATION. 3. IN COMPLIANCE, THE LD. CIT(A), CALLED FOR VARI OUS DOCUMENTS FROM THE ASSESSEE . AFTE R VERIFICATION OF THE DOCUMENTS , THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO TREAT THE AMOUNT OF RS.1,38,15,486/ - AS ADVANCE AND NOT TO GIVE TAX CREDIT FOR THE TDS OF RS.3,13,059/ - IN THE ASSESSMENT YEAR UNDER 4 CONSIDERATION. THE FINDING OF THE LD. CIT(A) ARE REPRODUCED AS UNDER: I HAVE VERIFIED THE FOLLOWING DOCUMENTS: 1. COPY OF THE CONTRACT WHERE IN THE WORKING OF THE ADVANCE RECEIVED BY THE ASSESSEE COMPANY FROM DLF EMPORIO RESTAURANTS LTD. AMOUNTING TO RS. 1,38,15,486/ - IS ATTACHED AS AN ENCLOSURE. 2. BOOKS OF THE ACCOUNTS OF THE ASSESSEE COMPANY WHEREIN THE AMOUNT OF RS. 1,38,15,486/ - FROM DLF EMPORIO RESTAURANTS LTD. IS SHOWN AS AN ADVANCE. 3. CO NFIRMATION RECEIVED FROM THE DLF EM PORIO RESTAURANTS LTD. THAT RS. 1,38,15,486/ - HAS BEEN PAID AS AN ADVANCE TO THE ASSESSEE COMPANY. 4. COPY OF THE CHEQUE RECEIVED FROM THE DLF EMPORIO RESTAURANTS LTD. AND COPY OF THE JOURNAL VOUCHER THROUGH WHICH THE AMOUNT RECEIVED HAS BEEN BOOKED IN BOOKS OF ACCOUNTS OF THE ASSESSEE COMPANY. IT MAY BE MENTIONED THAT BOOKS OF ACCOUNTS AND SUPPORTING DOCUMENTS WERE VERIFIED BY MY PREDECESSOR EVEN WHIL E PASSING THE ORIGINAL ORDER, AS PER PARA 6.7 & 6.9 QUOTED ABOVE. FROM THE PERUSAL OF THE ABOVE DOCUMENTS PRODUCED BEFORE ME, I AM OF THE OPINION THAT THE AMOUNT OF RS. 1,38,15,486/ - RECEIVED FROM DLF EMPORIO RESTAURANTS LTD. IS RIGHTLY TREATED AS AN ADVAN CE FOR THE ASSESSMENT YEAR 2008 - 2009 UNDER CONSIDERATION. IN ADDITION, BASED ON PERUSAL OF BOOKS OF ACCOUNTS PRODUCED BY ASSESSEE COMPANY, THERE HAS BEEN NO EXPENDITURE INCURRED CORRESPONDING TO ADVANCE RECEIVED FROM DLF EMPORIO RESTAURANTS LTD. FOLLO WING THE DIRECTIONS OF THE HON BLE ITAT, I DIRECT THE ASSESSING OFFICER TO TREAT RS. 1,38,15,486/ - AS ADVANCE, AND DO NOT GIV E TAX CREDIT FOR THE TDS OF RS.3,13,0 59/ - IN THIS ASSESSMENT YEAR. ACCORDING THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 5 4. THE R E VENUE BEING AGGRIEVED WITH THE ABOVE DIRECTIONS, IS IN APPEAL BEFORE THE T RIBUNAL RAISING THE GROUNDS AS REPRODUCED ABOVE. 5. THE ONLY ISSUE IN THE GROUNDS RAISED IS WHETHER THE AMOUNT RECEIVED FROM THE DLF EMPORIO R ESTAURANT IS BUSINESS RECEIPT OF THE YEAR UNDER CONSIDERATION OR MERELY AN ADVANCE. 6. THE LD. SENIOR DEPARTMENT R EPRESENTATIVE (DR) SUBMITTED THAT ACCORDING TO THE TDS CERTIFI CATE ISSUED BY THE DLF EMPORIO R ESTAURANT, THE AMOUNT IS IN THE NATURE OF CONTRACT PAY MENT, WHICH BEING AN ODD FIGURE , CANNOT BE IN THE NATURE OF ADVANCE AND IT SHOULD BE TREATED AS PART OF THE BUSINESS RECEIPT OF THE ASSESSEE AND SHOULD BE TAXED ACCORDINGLY. 7. ON THE CONTRARY, THE LD. COUNSEL OF THE ASSESSEE RELIED ON THE ORDER OF THE LD. CI T(A) AND SUBMITTED THAT LD. CIT(A) HAS VERIFIED ALL THE RELEVANT DOCUMENTS AND EVEN VERIFIED THAT NO EXPENDITURE HAS BEEN INCURRED CORRESPONDING TO ADVANCE RECEIVED FROM THE DLF EMPORIO RESTAURANT AND, THUS , THE ORDER OF THE LD. CIT(A) SHOULD BE UPHELD. 8. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN OUR OPINION, THE CIT(A) HAS VERIFIED THE RELEVANT DOCUMENTS INCLUDING CONTRACT AGREEMENT, BOOKS OF ACCOUNTS OF THE ASSESSEE, CONFIRMATION FROM DLF EMPORIO THAT THE AMOU NT IS AN ADVANCE TO THE ASSESSEE COMPANY ETC. THE LD. CIT(A) HAS ALSO VERIFIED THAT NO EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS CORRESPONDING TO THE ADVANCE RECEIVED FROM THE DLF EMPORIO R ESTAURANT . THE LD. SR. DR COULD NOT CONTROVERT THESE FACTUAL FINDING OF THE LD. CIT(A). IN 6 ABSENCE OF WHICH, WE DO NOT FIND ANY REASO N FOR TREATING THE SAID AMOUNT A S BUSINESS RECEIPT OF THE ASSESSEE. WE ALSO CONCUR WITH THE DIRECTION OF THE LD. CIT(A) FOR NOT GIVING TAX CREDIT OF THE TDS OF RS. 3,13,059/ - CORRESPONDING TO THE ADVANCE AMOUNT OF RS.1,38,15,486, BECAUSE ONCE THE AMOUNT IS NOT CREDITED AS CONTRACT RECEIPT, THE ASSESSEE IS NOT ENTITLED FOR CLAIMING THE TAX DEDUCTED THEREON AND IT CAN BE ALLOWED IN THE YEAR, THE ASSESSEE DECLARE TH E SAID AMOUNT AS ITS CONTRACT RECEIPT. IN OUR OPINION, THE FINDING OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE IS WELL REASONED, AND WE DO NOT FIND ANY ERROR IN THE SAME, ACCORDINGLY , WE UPHOLD THE SAME. THE GROUND NOS. 1 TO 3 OF THE APPEAL ARE ACCORDINGLY DISMISSED. THE GROUND S NO . 4 AND 5 OF THE APPEAL BEING GENERAL IN NATURE, WE ARE NOT REQUIRED TO ADJUDICATE UPON SPECIFICALLY AND ACCORDINGLY , DISMISSED AS INFRUCTUOUS. 9. IN THE RESULT, THE A PPEAL OF THE REVENUE IS DISMISSED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 1 6 T H MARCH . , 201 8 . S D / - S D / - ( BHAVNESH SAINI ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 6 T H MARCH , 201 8 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI
