THE DY CIT CIR 15(1), MUMBAI V. M/S. K.G.N. CONSTRUCTION, MUMBAI

ITA 6843/MUM/2007

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6271 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-12-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 13-11-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SRIVASTAVA
• Assessee Lawyers: SHAIKH M SHAMIM

Judgement Text

I.T.A NO.6843/ MUM/2007 ASSESSMENT YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, MUMBAI. BEFORE SHRI D.MANMOHAN (VICE PRESIDENT) AND SHRI PRAMOD KUMAR(ACCOUNTANT MEMBER) I.T.A NO.6843/ MUM/2007 ASSESSMENT YEAR: 2004-05 DY.COMMISSIONER OF INCOME TAX 15(1) .. APPELLAN T MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, GRANT ROAD, MUMBAI. VS K.G.N. CONSTRUCTION ,. RESPONDENT GATE NO.4, CHINDI BAZAR, 59, R.A. KIDWAI ROAD, WADA LA. MUMBAI-31. PA NO.AAFGK 8727 L APPELLANT BY: R.K.SRIVASTAVA, DR RESPONDENT BY : SHRI SHAIKH M. SHAMIM O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CALLED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 6 TH SEPTEMBER, 2007, FOR THE ASSESSMENT YEAR 2004-05, ON THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE SUPPRESSED CONTRACT RECEIPTS OF RS. 12,32,000/- FROM M/S. DESHMUKH BUILDERS & DEVELOPER S AS PER TDS CERTIFICATES WHICH WAS NOT REFLECTED IN PROFIT AND LOSS ACCOUNT. ON THE GROUND THAT DISCREPANCY FOUND BY THE AO WAS RECTIFI ED IN REMAND REPORT, WITHOUT FACTUALLY VERIFYING THE FACT THAT TDS CERTI FICATE ENCLOSED WITH RETURN OF INCOME SHOWED TOTAL RECEIPTS FROM SPARE S AMUDAYA NIRMAN I.T.A NO.6843/ MUM/2007 ASSESSMENT YEAR: 2004-05 2 SAHAYAK OF RS. 2,30,00,000/- AND FROM DESHMUKH BUIL DERS AND DEVELOPERS OF RS. 12,32,0000/-, THE TOTAL OF WHICH COMES TO ONLY RS. 2,42,32,000/- WHEREAS, TOTAL RECEIPTS SHOWN BY THE ASSESSEE WERE OF RS. 3,10,62,909/- WHICH LEFT A DISCREPANCY OF RS. 68,10 ,909/- FOR WHICH ASSESSEE HAS NOT SUBMITTED ANY TDS CERTIFICATE AND, THEREFORE, FACTUAL POSITION IS NEVER CLARIFIED. 2. TO ADJUDICATE ON THIS ISSUE, ONLY A FEW MATER IAL FACTS NEED TO BE TAKEN NOTE OF. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER NOTED THAT WHILE THE ASSESSEE HAS DECLARED CONTRACT RECEIPTS OF RS. 3,10,62,909/-, THE ACTUAL CONTRACT RECEIPTS BY THE ASSESSEE ARE OF ` .12,32,000/-, . MORE THAN THE AMOUNTS SO DISCLOSED- AS EVIDENT FROM TDS CERTIFICATE ATTACHED WITH THE RETU RN OF INCOME. IT WAS IN THIS BACKDROP THAT THE AO MADE AN ADDITION OF ` .12,32,000/-. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A). THE CIT (A) D ELETED THE SAID DISALLOWANCE BY OBSERVING AS FOLLOWS: IN THE ASSESSMENT ORDER, THE AO MADE AN ADDITION O F ` .12,32,000/- ON THE BASIS OF CONTRACT RECEIPT SHOWN IN THE P&L ACCO UNT AND CONTRACT RECEIPT AVAILABLE IN THE TDS CERTIFICATE. THE AO FO UND THAT THE APPELLANT HAD RECEIVED THE CONTRACT RECEIPT OF ` .12,32,000/- FROM M/S. DESHMUKH BUILDER & DEVELOPER AS PER TDS CERTIFICATE BUT THE SAME AMOUNT DID NOT GET REFLECTED IN P&L ACCOUNT. BEFORE THE CIT (A) T HE APPELLANT TOOK A PLEA THAT THERE WAS MISTAKE REGARDING THE PRESENTAT ION OF FACT BEFORE THE AO BY THE ACCOUNTANT. THIS ISSUE WAS ONE OF THE SU BJECT MATTER OF REMAND REPORT GIVEN BY THE AO ON CONSIDERATION OF F RESH FACT BROUGHT BY THE APPELLANT. THE AO IN HIS REMAND REPORT DIT. 1. 8.2007, STATED THAT FACTS WERE AGAIN VERIFIED IN TDS CERTIFICATE ENCLOS ED WITH THE RETURN OF INCOME AND FOUND TO BE CORRECT. IN THIS WAY, THE D ISCREPANCY ORIGINALLY FOUND BY THE AO WAS RECTIFIED IN THE REMAND REPORT. AS A RESULT, THE ADDITION DESERVES TO BE DELETED. HENCE, THE APPEAL IS ALLOWED ON THE POINT OF SUPPRESSED CONTRACT RECEIPT AT ` .12,32,000/- DELETING THE ADDITION IN ENTIRETY. THE ASSESSING OFFICER IS NOT SATISFIED AND IS IN AP PEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD OF THE CASE IRONICALLY, HOWEVER, THE IMPUGNED RELIEF IS GRANTED BY THE CIT (A) ON THE BASIS OF REMAND REPORT GIVEN BY THE ASSESSING OFFICER HERSEL F. IN THE REMAND REPORT DATED 1.8.2007, WHICH WAS SUBMITTED BY THE AO TO THE CIT (A), THE AO, INTER ALIA, OBSERVED AS FOLLOWS: SUPPRESSION OF CONTRACT RECEIPT: IN THIS CONNECTI ON, THE LEDGER ACCOUNT OF M/S. SPARE SAMUDAY NIRMAN SAHAYAK AND M/S. DESHM UKH BUILDERS & DEVELOPERS WAS CALLED FOR. EXAMINATION OF THE LEDG ER ACCOUNT SHOWS THAT I.T.A NO.6843/ MUM/2007 ASSESSMENT YEAR: 2004-05 3 THE ASSESSEE CLAIM THAT THERE WAS A MISTAKE REGARDI NG THE PRESENTATION OF THE FACTS TO THE THEN AO IS CORRECT. THE FACTS WER E AGAIN VERIFIED WITH TDS CERTIFICATES ENCLOSED WITH THE RETURN OF INCOME AND FOUND TO BE CORRECT. WE HAVE NOTED THAT THE OFFICER WHO SENT THE REMAND REPORT IS THE SAME AS THE OFFICER WHO FILED THE PRESENT APPEAL BEFORE US. IT IS DIFF ICULT TO COMPREHEND AS TO HOW AN OFFICER IS, ON ONE HAND, SATISFIED WITH THE EXPLANA TION OF THE ASSESSEE AND, ACCORDINGLY, INFORMED THE CIT (A) THAT THERE IS NO DISCREPANCY I N THE CONTRACT RECEIPTS DISCLOSED BY THE ASSESSEE AND, ON THE OTHER HAND, SHE IS ALSO AG GRIEVED OF CIT (A)S GRANTING RELIEF ON THE BASIS OF THE AFORESAID SUBMISSION. THERE IS AN INHERENT AND IRRECONCILABLE CONTRADICTION IN THE APPROACH OF THE ASSESSING OFFI CER. ONCE THE AO IS SATISFIED WITH THE SUBMISSION OF THE ASSESSEE IN THE PRESENT CASE DURI NG THE REMAND PROCEEDINGS, IT CANNOT BE OPEN TO HER TO CHALLENGE THE RELIEF GRANT ED BY THE APPELLATE AUTHORITY ON THE BASIS OF REPORT OF SUCH REMAND PROCEEDINGS. WE SEE NO MERITS IN THE GRIEVANCE OF THE ASSESSING OFFICER. WE, THEREFORE, CONFIRM THE ORDE R OF THE CIT (A) AND DECLINE TO INTERFERE IN THE MATTER. 4. IN THE RESULT, THE APPEAL STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 24 TH NOVEMBER, 2010 SD/- (D.MANMOHAN) (VICE PRESIDENT) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 24 TH NOVEMBER , 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),XV MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY 15, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.6843/ MUM/2007 ASSESSMENT YEAR: 2004-05 4