S M AKER MANAGEMENT SERVICES PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 15(3)(4), MUMBAI

ITA 790/MUM/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9792 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2014-2015
• Appeal Filed On: 08-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Opportunity of being heard; TDS; FORM 26AS
• Section: 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , G BENCH MUMBAI BEFORE : SHRI SHAMIM YAHYA , A CCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 790/ MUM/ 20 18 ( ASSESSMENT YEAR : 2014 - 15 ) M/S. S.M. AKER MANAGEMENT SERVICES PRIVA TE LIMITED 1105, O2 BUSINESS CORPORATE PLAZA 11 TH FLOOR, A WING, MINERVA INDUSTRIAL ESTATE MULUND (W), MUMBAI 400 080 VS. M/S. ITO - 15(3) - 4 AAYAKAR BHAVAN MUMBAI PAN/GIR NO. AAMCS8388Q (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY NONE REVENUE BY SH RI. T.S. KHALSA DATE OF HEARING 28 /0 7 /2021 DATE OF PRONOUNCEMENT 28 / 07 /202 1 / O R D E R PER SHRI SHAMIM YAHYA AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT(A) DATED 12/09/2017 AND PERTAINS TO A SSESSMENT Y EAR 201 4 - 15. 2. THE ASSESSEE HAS FILED THE FOLLOWING GROUNDS OF APPEAL: - UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN PASSING THE APPELLATE ORDER WITHOUT GIVING A OPPORTUNITY OF BEING HEARD TO THE APP ELLANT. ITA NO . 790/MUM/2018 M/S. S.M.AKER MANAGEMENT SERVICES PVT. LTD. 2 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION MADE BY AO OF RS. 12,50,25 1 / - SOLELY ON THE GROUNDS THAT THE APPELLANT HAS CLAIMED THE FULL CREDIT OF TDS ON THESE EXCESS AMOUNT REFLECTED IN 26AS AND WITHOUT APPREC IATING THE FACT THAT THE APPELLANT HAS NEITHER RAISED ANY INVOICE / RECEIVED THESE EXCESS AMOUNTS. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE BRIEF FACTS ON THIS ISSUE ARE THAT IMPUGNED ADDITI ON WAS MADE BY THE LD. ASSESSING OFFICER ON THE GROUND THAT THERE WAS DIFFERENCE BETWEEN INCOME SHOWN AS PER FORM 26AS AND INCOME SHOWN AS PER PROFIT AND LOSS ACCOUNT . THE ASSESSEE GAVE THE EXPLANATION THEREOF. THIS WAS DULY NOTED BY THE LD. ASSESSING OFFICE R IN HIS ASSESSMENT ORDER AS UNDER: - 3.1. HOWEVER, THE LD. AO HELD AS UNDER: - ON PERUSAL OF THE ABOVE CHART IT CAN BE SEEN THAT AT SR. 1 OF THE ABOVE TABLE THE DIFFERENCE OF INCOME AS PER P&L AND 26AS IS RS. 12,17,521/ - . AS PER THE ABOVE STATEMENT RS. 4,56,733/ - BEING SERVICE TAX HAS BEEN INCLUDED IN 26AS. HENCE, THE DIFFERENCE OF RS. 7,60,788/ - (12,17,52 1 - 4,56,7 33). FURTHER, AT SR.2 OF THE ABOVE TABLE THE DIFFERENCE OF INCOME AS PER P&L AND 26AS IS RS. 6,28, 000 / - . AS PER THE ABOVE STATEMENT RS. 1,38,537/ - BEING SERVICE TAX HAS BEEN INCLUDED IN 26AS. HENCE, THE DIFFERENCE OF RS. 4,89,463/ - (628000 - 13 8537). AS PER THE ACCOUNTING METHOD FOLLOWED BY THE ASSESSEE COMPANY I.E. MERCANTILE SYSTEM, THIS INCOME OUGHT TO HAVE SR. NO. NAME OF THE PARTY AMOUNT AS PER FORM 26AS AMOUNT AS PER P&LA/C DIFF REASONS FOR DIFFERENCE IF ANY 1. INDIAN OIL CORPORATION LTD. (SHD - BARODA) 41,51,991 29,34,470 12,17,521 1] RS. 4,56,733 AMOUNT OF SERVICE TAX CONSIDER AS INCOME IN 26AS (2) RS. 143035 SALES AMOUNT NOT CONSIDER IN 26AS BUT WE CONSIDER IN P&L (TOTAL DIFF IS RS . 456733 - 143035 - 313698) 2. UEM INDIA PVT. LTD. 17,48,846 11,20,846 6,28,000 1) RS. 138537 AMOUNT OF SERVI CE TAX CONSIDER AS INCOME IN 26AS 2) 489463 SALES AMOUNT NOT CONSIDER IN BUT NOT IN P&L A/C. (TOTAL DIFF IS RS. 489463 - - 138537 = 628000] TOTAL 18,45,521 ITA NO . 790/MUM/2018 M/S. S.M.AKER MANAGEMENT SERVICES PVT. LTD. 3 BEEN SHOWN AS INCOME FOR THE YEAR UNDER CONSIDERATION. THEREFORE, AN AMOUNT OF RS. 12,50,251/ - (760788 + 489463) IS CONSIDERED AS INCOME FOR THE YEAR UNDER CONSIDERATION AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3.2. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE LD. AOS ORDER BY OBSERVING AS UNDER: - GROUND NO.2 & 3 RAISED IN RESPECT OF THE ADDITION OF RS. 12,50,251/ - MADE ON ACCOUNT O F DIFFERENCE IN 26AS. THE LD AO HAS DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS CALLED FOR THE RECONCILIATION OF THE DIFFERENCE IN RECEIPTS AS PER THE 26AS WITH THAT OF THE PROFIT & LOSS ACCOUNT. THE APPELLANT COULD NOT PROPERLY RECONCILE AND JUST IFIED THE ACTION. THE SUBMISSIONS AS PER THE STATEMENT OF FACTS HAVE BEEN CONSIDERED IN THE LIGHT OF THE FACTS OF THE CASE ON RECORD. IT IS FACTUALLY TRUE THAT THE APPELLANT HAS LESS ADMITTED ITS RECEIPTS. HOWEVER IT HAS CLAIMED AND AVAILED FULL CREDIT OF TDS AS PER 26AS. THE ID AO HAS RIGHTLY BROUGHT TO TAX THE TOTAL RECEIPTS. THE ACTION OF THE ID AO IS THEREFORE SAID TO HAVE BEEN MADE ON SOUND FOOTING AND AFTER DUE VERIFICATION AND APPLICATION OF MIND. HENCE I DO NOT FIND ANY INCONSISTENCY AND THE FINDING S OF THE ID AO ARE THEREFORE CONFIRMED. THIS GROUND IS DISMISSED. 3.3. AGAINST THE SAID ORDER, ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE NOTICE. WE NOTE THAT ASSESSEE HAS DULY EXPLAINED TO THE LD. ASSESSING OFFICER THAT THE REASON OF IMPUGNED DIFFERENCE WAS PARTLY RELATING TO SERVICE TAX WHICH HAS BEEN ACCEPTED BY THE LD. ASSESSING OFFICER . H OWEVER, THE EXPLANATION OF SALES WHICH HAS BEEN CONSIDERED DIFFERENTLY IN 26AS AND PROFIT AND LOSS ACCOUNT HAS NOT BEEN ACCEPTED BY THE LD. ASSESSING OFFICER. WE NOTE THAT NO REASON HAS BEEN GIVEN BY THE LD. ASSESSING OFFICER AS TO WHY HE IS NOT ACCEPTING THEM. NO CASE IS MADE OUT THAT FROM THE EXAMINATION OF RECORDS, THE EXPLANATIO N HAS BEEN FOUND TO BE INCORRECT. WITHOUT GIVING ANY REASON, THE REJECTION OF THE EXPLANATION THEREOF IS NOT SUSTAINABLE. HENCE, WE DIRECT THAT ADDITION SHOULD BE RESTRICTED TO THE DIFFERENCE AS ACCEPTED BY ITA NO . 790/MUM/2018 M/S. S.M.AKER MANAGEMENT SERVICES PVT. LTD. 4 THE ASSESSEE IN ITS EXPLANATION THAT RS. 3,13,698 + 6,28,000/ - . WE DIRECT ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED ON 28 / 07 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( PAVAN KUMAR GADALE ) SD/ - ( SHAMI M YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 28 / 07 / 2021 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUAR D FILE. //TRUE COPY//