Gayatri Ratna Jointventure, Hyderabad V. Income Tax Officer, Ward-6(3) , Hyderabad

ITA 71/Hyd/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5481 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 26-08-2020
• Assessment Year: 2015-2016
• Appeal Filed On: 22-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MURTHY NAIK
• Assessee Lawyers: B.SHANTHI KUMAR
• Keywords: TDS; Set aside
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER I.T.A. NO. 71/HYD/2020 ASSESSMENT YEAR: 2015-16 GAYATRI RATNA JOINT VENTURE, HYDERABAD [PAN: AAAAG6562E] VS INCOME TAX OFFICER, WARD-6(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI B.SHANTHI KUMAR, AR FOR REVENUE : SHRI MURTHY NAIK, DR DATE OF HEARING : 26-08-2020 DATE OF PRONOUNCEMENT : 29-09-2020 O R D E R PER SMT. P. MADHAVI DEVI, J.M. : THIS IS ASSESSEES APPEAL FOR THE AY.2015-16, DIREC TED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-6, HYDERABAD, DATED 18-11-2019, CONFIRMING THE ORDER OF THE ASSESSING OFFICER (AO) PASSED U/S.154 O F THE INCOME TAX ACT [ACT]. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN AOP , ENGAGED IN THE BUSINESS OF CONSTRUCTION OF LINK CANAL , FILED ITS RETURN OF INCOME FOR THE AY.2015-16 ON 16-09-2015, AD MITTING NIL INCOME. THEREAFTER, THE CASE WAS SELECTED FOR LI MITED SCRUTINY THROUGH CASS AND THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT, ACCEPTING THE INCOME RETURNED BY THE ASSESSEE. THEREAFTER, THE AO ISSUED A NOTICE U/S.154 OF THE ITA NO. 71/HYD/2020 :- 2 -: ACT ON THE GROUND THAT THE ASSESSEE HAD CLAIMED THE REFUN D OF ENTIRE TDS OF RS.89,20,488/-, WHICH INCLUDED THE TDS OF RS.85,26,487/- ON MOBILIZATION ADVANCE OF RS.42,63,2 4,380/- AND TDS OF RS.3,94,000/- ON CONTRACT RECEIPTS OF RS.1,97,00,000/-, WHICH IS IN VIOLATION OF PROVISIO NS OF SECTION 199 OF THE ACT R.W.R. 37BA(3) OF INCOME TAX RULES, 19 62. THUS, ACCORDING TO THE AO, THERE IS A MISTAKE APPARENT F ROM RECORD, WHICH NEEDS RECTIFICATION. HOWEVER, SINCE T HE ASSESSEE DID NOT APPEAR BEFORE THE AO INSPITE OF SERVICE OF NOTI CES BY E- MAIL. THE AO PASSED THE ORDER U/S.154 OF THE ACT, RA ISING THE DEMAND IN RESPECT OF THE ERRONEOUS REFUND GRANTED TO THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), BUT DID NOT APPEAR BEFORE HIM AND ONLY FILED WRITTEN SUBMISSIONS ON THE BASIS OF WHICH, THE CIT(A) CONFIR MED THE ORDER OF AO U/S.154 OF THE ACT. 4. THE ASSESSEE IS NOW IN SECOND APPEAL BEFORE THE TRIBUNAL, RAISING THE FOLLOWING GROUNDS: 1. THE CIT(A) OUGHT TO HAVE HELD THAT THERE WAS NO MISTAKE APPARENT FROM RECORD TO INVOKE SECTION 154 AS THE ISSUE INVO LVED IS DEBATABLE AND DEPARTMENT FAILED IN SIMILAR CASE BEFORE ITAT, HYDERABAD BENCH IN 1313/HYD/15, DATED 12.05.2017, IN CASE OF M/S.VI JAYA BHAVANI VS. DCIT. 2. CIT(APPEALS) ERRED IN UPHOLDING ACTION OF AO IN NOT GIVING CREDIT TO TDS OF RS.89,20,488/-. 5. THE CASE IS TAKEN UP FOR HEARING ON 26-08-2020 THR OUGH VIDEO CONFERENCING AND BOTH THE PARTIES WERE HEARD. ITA NO. 71/HYD/2020 :- 3 -: 6. WE FIND THAT THE CASE OF THE ASSESSEE BEFORE THE CIT( A) WAS THAT THE CONTRACT WAS CANCELLED AND THE ASSESSEE HA D RETURNED THE MOBILIZATION ADVANCE TO THE GOVERNMENT. HOWEVER, THE CIT(A) HAS CONFIRMED THE ORDER OF THE AO ON THE GROUND THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE THAT THE MOBILIZATION ADVANCE HAS BEEN RETURNED. FURTHER, WITH REGARD TO THE SECOND ISSUE ALSO, THE CIT( A) HELD THAT THE ASSESSEE HAD NOT FILED ANY EVIDENCE IN RE SPECT OF ITS CLAIM. 7. LD.COUNSEL FOR THE ASSESSEE THEREFORE PRAYED THAT TH E ISSUE MAY BE SET ASIDE TO THE FILE OF AO SO THAT THE ASS ESSEE WILL BE ABLE TO FILE ALL THE DETAILS AND MAKE PROPER REPRESENTATION BEFORE THE AO IN SUPPORT OF ITS CLAIM. 8. LD.DR HAD NO OBJECTION TO THE SAME. 9. TAKING THE SAME INTO CONSIDERATION, WE DEEM IT FIT AN D PROPER TO REMAND THE ISSUE TO THE FILE OF AO WITH A DIR ECTION TO CONSIDER THE ISSUE DENOVO, AFTER GIVING A FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH SEPTEMBER, 2020 SD/- SD/- ( A. MOHAN ALANKAMONY ) ( P. MADHAVI DEVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED:29-09-2020 TNMM ITA NO. 71/HYD/2020 :- 4 -: COPY TO : 1.GAYATRI RATNA JOINT VENTURE, 6-3-109, TSR TOWERS, RAJ BHAVAN ROAD, SOMAJIGUDA, HYDERABAD. 2.THE INCOME TAX OFFICER, WARD-6(3), HYDERABAD. 3.CIT(APPEALS)-6, HYDERABAD. 4.THE PR.CIT-6, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.