MOHAMMEDI Z. KANCHWALA, MUMBAI V. ITO 15(3)(2)( ERSTWHILE), MUMBAI

ITA 676/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9835 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: RAJESH B GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM ITA NO. 676 / MUM/20 16 ( ASSESSMENT YEAR : 2010 - 11 ) MOHAMMEDI Z KANCHWALA 11/11C, THACKER INDUSTRIAL ESTATE, OLD ANJIRWADI - A MAZGAON, MUMBAI 400 010 VS. ERSTWHILE ITO, WARD 15(3)(2) ROOM NO.101, MATRU MANDIR, GRANT ROAD (WEST) MUMBAI PAN/GIR NO. ABJPK1291P APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI RAJESH B GUPTA REVENUE BY SHRI T.A. KHAN DATE OF HEARING 22 / 0 3 /201 8 DATE OF PRONOUNCEME NT 23 / 03 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 32, MUMBAI DATED 16/12/2015 FOR A.Y.2010 - 11 IN THE MATTER OF ORDER PASSED U/S.143(3). 2. F IRST GRIEVANCE OF ASSESSEE RELATES TO ADDITION OF RS.18,07,279/ - TOWARDS SUPPRESSION OF SALES. 3. AO HAD MADE ADDITION OF RS.26,86,051/ - ON ACCOUNT OF SUPPRESSION OF SALES. BY THE IMPUGNED ORDER, CIT(A) REDUCED THE ADDITION TO THE EXTENT OF RS.18,07,279/ - BY OBSERVING THAT AO HAD NOT GIVEN CREDIT OF WORK IN ITA NO. 676/MUM/2016 MOHAMMEDI Z KANCHWALA 2 PROGRESS OF RS.8,78,772/ - . ASSESSEE IS IN FURTHER APPEAL BEFORE US AGAINST ADDITION OF RS.18,07,279/ - SO SUSTAINED BY CIT(A). 4 . AT THE OUTSET, LEARNED AR PLACED ON RECORD, THE ORDER OF THE TRIBUNAL FOR THE A.Y.2011 - 12 DATED 04/04/2017 IN ASSESSEES OWN CASE FOR THE A.Y.2011 - 12 WHEREIN UNDER SIMILAR FACTS AND CIRCUMSTANCES ADDITION WAS RESTRICTED TO THE EXTENT OF 12.79% OF SUCH SUPPRESSED SALES. THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS UNDER: - 10. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT DURING THE COURSE OF HEARING THE LD. A.R. SPECIFICALLY SUBMITTED THAT SURAJ ESTATE DEVELOPERS PVT. LTD. HAD TO CARRY OUT THE WORK BUT HE HAS NOT CARRIED OUT THE WORK. THEREFORE, WHATEVER AMOUNT WAS TO BE PAID TO HIM WAS SHOWN AS ADVANCE AND THE SAME HAS BEEN SHOWN AS ADVANCE IN THE BOOKS OF ACCOUNT. THEREFORE, ENTIRE ADVANCE CANNOT BE TREATED AS INCOME OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE CONFIRM THE GP AT THE RATE OF 12.79% ON THE AMOUNT OF RS.51,66,122/ - ON ACCOUNT OF SUPPRESSION OF SALES AND AO IS DIRECTED ACCORDINGLY. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 5 . WE HAD CAREFULLY GO NE THROUGH THE ORDER OF THE AUTHORITIES BELOW AS WELL AS THE ORDER OF THE TRIBUNAL AND FOUND THAT EXACTLY SIMILAR ISSUE WAS CONSIDERED BY THE TRIBUNAL AND ADDITION WAS RESTRICTED TO THE EXTENT OF G.P. OF 12.79% EMBEDDED IN SUCH ADVANCE . RESPECTFULLY FOLLO WING THE ORDER OF THE TRIBUNAL, WE DIRECT THE AO TO RESTRICT ADDITION TO THE EXTENT OF G.P. OF 12.79% O N RS.18,07,279/ - . WE DIRECT ACCORDINGLY. 6 . NEXT GRIEVANCE OF ASSESSEE RELATES TO DISALLOWANCE U/S.40(A)(IA) TOWARDS TEMPO AND LABOUR CHARGES. THIS ISSU E IS ALSO COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y.2009 - 10 DATED ITA NO. 676/MUM/2016 MOHAMMEDI Z KANCHWALA 3 06/05/2016, WHEREIN THE MATTER WAS RESTORED BACK TO THE FILE OF THE AO WITH THE FOLLOWING DIRECTION. 7. THE NEXT ISSUE RELATES TO THE ADDITION MADE U/S 40(A)(I A) OF THE ACT. THE LD A.R., BY PLACING RELIANCE ON THE DECISION DATED 26 - 08 - 2015 RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP P LTD (ITA NO.160/2015), SUBMITTED THAT THE PROVISO INSERTED BY FINANCE ACT, 2012 IN SEC. 40(A)(IA) IS RETROSPECTIVE IN NATURE AND HENCE THIS ADDITION REQUIRES FRESH EXAMINATION IN THE LIGHT OF NEWLY INSERTED PROVISION. WE FIND FORCE IN THE SAID SUBMISSION. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND RESTORE THE SA ME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE SAME AFRESH IN THE LIGHT OF DECISION RENDERED BY THE HONBLE DELHI HIGH COURT REFERRED ABOVE AND THE NEWLY INSERTED PROVISO TO SEC. 40(A)(IA) AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LA W. 7 . AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE SAME, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y.2009 - 10 DATED 06/05/2016, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DECI DING AFRESH AS PER THE DIRECTION GIVEN BY THE TRIBUNAL IN ITS ORDER DATED 06/05/2016. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART IN TERMS INDICATED HEREINABOVE. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 23 / 03 /201 8 SD/ - ( AMARJIT SINGH ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 23 / 03 /201 8 KARUNA SR. PS ITA NO. 676/MUM/2016 MOHAMMEDI Z KANCHWALA 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESP ONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//