ANTHONY JOHN PEREIRA, THANE V. ASST CIT CIR 4, MUMBAI

ITA 7153/MUM/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9690 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUNKUMAR; RAJESH KUMAR YADAV LD DRS
• Assessee Lawyers: V CHANDRASHEKHAR; HARSHAD SHAH LD AR S
• Section: 43B; 143(3)

Judgement Text

ITA NO.7153/MUM/2014 ANTHONY JOHN PEREIRA ASSESSMENT YEAR :2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.7153/MUM/2014 ( / ASSESSMENT YEAR: 2010-11) ANTHONY JOHN PEREIRA SHOP NO.4-6, GF BUILDING NO.21, AMOL NAGAR NEAR NAIGAON STATION (W) VASAI-THANE / VS. ASS ISTAN T COMMISSIONER OF INCOME TAX CIRCLE-4 THANE. ! ./ ./PAN/GIR NO. AASPP-8647-G ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : V. CHANDRASHEKHAR AND HARSHAD SHAH- LD. AR.S REVENUE BY : CHAUDHARY ARUN KUMAR AND RAJESH KUMAR YADAV - LD. DRS / DATE OF HEARING : 26/10/2018 / DATE OF PRONOUNCEMENT : 14/12/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2010-11 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, THANE, [CIT(A)], APPEAL NO. THN/CIT(A)-II/AC.CIR.4/THN/151/2013-14 DATED 05/08/2014 ON FOLLOWING EFFECTIVE GROUNDS OF APPEAL: - ITA NO.7153/MUM/2014 ANTHONY JOHN PEREIRA ASSESSMENT YEAR :2010-11 2 THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) (THE LD. CIT(A)) ERRED IN UPHOLDING THE DISALLOWANCE IN RESPECT OF PAYMENT OF RS.16,57, 274/- MADE IN EARLIER YEAR/S TO A CONTRACTOR FOR CONSTRUCTION OF BRIDGE WHICH WAS PAR T OF AND RELATING TO A PROJECT WHICH WAS WORK-IN-PROGRESS FOR OVER SEVERAL YEARS, CITING REASON THAT ITS INCURRED IN EARLIER YEARS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. AS SISTANT COMMISSIONER OF INCOME TAX-CIRCLE-4, THANE [AO] IN SCRUTINY ASSESSMENT U/S 143(3) ON 22/03/2013 WHEREIN THE INC OME OF THE ASSESSEE WAS DETERMINED AT RS.741.44 LACS AFTER CER TAIN ADDITIONS AS AGAINST RETURNED INCOME OF RS.230.70 LACS FILED BY THE ASSESSEE ON 11/10/2010. DURING IMPUGNED AY, THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS STATED TO BE ENGAGED AS BUILDERS, DEVELOPERS & AGRICULTURIST . AS EVIDENT FROM GROUNDS OF APPEAL, THE SOLE SUBJECT MA TTER OF THE PRESENT APPEAL IS CERTAIN ADDITION OF RS.16.57 LACS AS MADE BY LD. AO & CONFIRMED BY FIRST APPELLATE AUTHORITY. 2. DURING ASSESSMENT PROCEEDINGS, IT TRANSPIRED THA T THE ASSESSEE, IN EARLIER YEARS, HAD ENTERED INTO AN ARRANGEMENT WITH CIDCO WHEREIN IT HAD TO CONSTRUCT A BRIDGE FOR THE PUBLIC AT ITS OWN COST, IN LIEU OF THE DEVELOPMENT CHARGES PAYABLE TO CIDCO . THE CONSTRUCTION OF THE SAID BRIDGE WAS NECESSARY SINCE IT WAS A LINK BETWEEN NAIGAON RAILWAY STATION AND OTHER ELEVEN VILLAGES IN THE AREA. HOWEVER, DU E TO ENVIRONMENTAL ISSUES, THE BRIDGE COULD NOT BE CONST RUCTED. THE AMOUNT PAYABLE TO CIDCO WAS ADDED BACK BY ASSESSEE U/S 43B IN REVISED COMPUTATION OF INCOME FILED DURING ASSESSMENT PROCE EDINGS EXCEPT THE IMPUGNED AMOUNT OF RS.16.57 LACS STATED TO BE PAID TO BRIDGE CONTRACTOR NAMELY M/S SAMARTH ENTERPRISES. THE LD. AO OPINED THAT SINCE THE PAYMENT WAS MADE IN FINANCIAL YEAR 2006-0 7, THE DEDUCTION ITA NO.7153/MUM/2014 ANTHONY JOHN PEREIRA ASSESSMENT YEAR :2010-11 3 THEREOF COULD NOT BE ALLOWED TO THE ASSESSEE. THE A CTION OF LD. AO UPON CONFIRMATION BY FIRST APPELLATE AUTHORITY, IS UNDER APPEAL BEFORE US. 3. RIVAL CONTENTIONS HAVE BEEN HEARD. UPON DUE CONS IDERATION OF FINANCIAL STATEMENTS, IT TRANSPIRES THAT THE ADVANC ES RECEIVED BY THE ASSESSEE TO THE TUNE OF RS.14.45 CRORES ON SALE OF FSI, AGAINST WHICH DEVELOPMENT CHARGES WERE PAYABLE TO CIDCO, HAS BEEN OFFERED TO TAX BY THE ASSESSEE AND THEREFORE, LOGICALLY THE EXPENS ES INCURRED BY THE ASSESSEE AGAINST THE SAME WERE ALLOWABLE TO HIM ON THE PRINCIPLE OF MATCHING CONCEPT . THE ASSESSEE HAS DISALLOWED THE EXPENDITURE IN TERMS OF PROVISIONS OF SECTION 43B SINCE THE SAME W ERE NOT ACTUALLY PAID BY THE ASSESSEE. HOWEVER, THE IMPUGNED AMOUNT OF RS .16.57 LACS WAS ALREADY PAID BY THE ASSESSEE AND WAS REFLECTED AS LOANS & ADVANCES ON THE ASSET SIDE OF THE BALANCE SHEET. THE NATURE OF IMPUGNED EXPENDITURE HAS NOT BEEN DISPUTED BY THE REVENUE. T HIS BEING THE CASE, THE ASSESSEE, IN OUR OPINION, WAS ENTITLED FOR THE DEDUCTION OF THE SAME. WE ORDER SO. 4. RESULTANTLY, THE APPEAL STANDS ALLOWED IN TERMS OF OUR ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2018. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 14/12/2018 SR.PS, JAISY VARGHESE ITA NO.7153/MUM/2014 ANTHONY JOHN PEREIRA ASSESSMENT YEAR :2010-11 4 ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,- & . , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.