A.K. Patel & Co.(Construction) Pvt.Ltd., & M.S. Khurana Engg.Ltd., Surat V. The Jt.CIT., Range-5, Surat

ITA 819/AHD/2013

• Counselvise Citation: 81920514 RSA 2013
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 20-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID SR D R
• Assessee Lawyers: K N BHATT

Judgement Text

-1- , , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , ! ! ! !, , , , '# $% '# $% '# $% '# $% , , , , %& ' %& ' %& ' %& ' % ! ( % ! ( % ! ( % ! ( BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.819/AHD/2013 [ASSTT. YEAR : 2009-2010] M/S. A.K. PATEL & CO. (CONSTRUCTION ) P. LTD. & M.S. KHURANA ENG. LTD. (CONSORTIUM) 401-402, PRESIDENT PLAZA B WING, NR. MAHAVIR CT SCAN CENTRE NANPURA, SURAT 395 001. PAN : AANFA 6620 M /VS. JCIT, RANGE-5, SURAT. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .$ / 0 %/ ASSESSEE BY : SHRI K.N. BHATT ' / 0 %/ REVENUE BY : SHRI J.P JHANGID, SR. DR 2 / $3&/ DATE OF HEARING : 10 TH FEBRUARY, 2014. 456 / $3&/ DATE OF PRONOUNCEMENT : 07-03-2014 %7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-I, SURAT DATED 7.1.2013. ITA NO.819/AHD/2013 -2- 2. THE GROUND OF THE APPEAL OF THE ASSESSEE IS AS U NDER: 1. IN VIE OF THE FACTS AND CIRCUMSTANCES O THE CAS E, THE LD.CIT(A) OUGHT TO HAVE HELD THAT THE LD.AO HAS ERRED IN LAW IN HOLDING THAT THE APPELLANT HAS EARNED THE INCOME OUT OF THE GROSS RE CEIPTS IT SHARED BETWEEN THE MEMBERS AND ACCORDINGLY DELETED THE ADD ITION OF RS.24,40,091/- AND HENCE YOUR APPELLANT MOST HUMBLY PRAYS THAT THE SAME BE DELETED. ALTERNATIVELY THE DEDUCTION OF THE SAID AMOUNT BE ALLOWED AS SETO FF IN THE ASSESSMENT OF THE MEMBER(S) OF THE CONSORTIUM WHO S HARE THE IMPUGNED GROSS RECEIPTS DETAILS OF WHICH WERE FUR NISHED IN THE AUDITED ACCOUNTS AS WELL AS TO THE LD. AO. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS A CONSORTIUM OF TWO COMPANIES FORMED AS PER THE REQUI REMENT OF AIRPORT AUTHORITY OF INDIA WITH THE ASSESSEE AND PARTIES BE ING M/S.A.K. PATEL & CO. (CONSTRUCTION) P. LTD. AND M.S.KHURANA ENGG. LTD. [ AKP & MSK FOR SHORT). THE ASSESSEE, CONSORTIUM OF TWO COMPANIES WAS GIVEN THE PROJECT LEFT OUT BY ANOTHER COMPANY VIZ. V.K. PATEL & COMPA NY FOR COMPLETING CERTAIN WORKS WITH REGARD TO CONSTRUCTION OF SURAT AIRPORT IN THE STATE OF GUJARAT. HE SUBMITTED THAT THE RECEIPTS OF THE ASS ESSEE-COMPANY, WERE OFFERED FOR TAXATION AND HAS ALREADY BEEN TAXED IN THE HANDS OF TWO COMPANIES NAMED ABOVE I.E. AKP & MSK, IN THE SCRU TINY ASSESSMENTS FRAMED IN THE ASSESSMENT OF THESE COMPANIES. HE SU BMITTED THAT THE SAME AMOUNT WAS AGAIN TAXED IN THE HANDS OF THE PRESENT ASSESSEE. THE CREDIT OF THE TDS WAS ALSO NOT ALLOWED IN THE HANDS OF AKP & MSK BY THE DEPARTMENT. THE LEARNED DR HAS OPPOSED THE SUBMISS IONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE AM OUNT OF INCOME ITA NO.819/AHD/2013 -3- REPRESENTING THE RECEIPTS RECEIVED BY THESE TWO COM PANIES VIZ. AKP & MSK WERE DIRECTED TO BE DEDUCTED OUT OF THEIR TAXA BLE INCOME BY THE AO IN THE PRESENT CASE, AND ACCORDINGLY IT IS NOT A CASE OF DOUBLE TAXATION OF THE SAME INCOME. HE ARGUED THAT THE INCOME SHOULD BE A SSESSED IN THE CORRECT HAND. IN REJOINDER, THE LEARNED COUNSEL FOR THE AS SESSEE SUBMITTED THAT THERE IS NO REVENUE LOSS INVOLVED IN THIS CASE, AS THE AS SESSEE COMPANY AS WELL AS TWO COMPANIES VIZ. AKP & MSK WERE ASSESSED TO TAX AT THE SAME RATE OF TAX. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT IT IS WELL SETTLED THAT THE SAME INCOME COULD NOT BE TAXED TWICE BY THE DEPARTMENT. IT HAS BEEN CLAIMED ON BEHALF OF THE ASSESSEE THAT THE INCOME IN QUESTION HAS ALREAD Y BEEN OFFERED FOR TAXATION AND TAXED IN THE HANDS OF AKP & MSK. IN THESE FA CTS OF THE CASE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIREC TION TO VERIFY FROM THE RECORDS AND IN CASE THE AMOUNT OF INCOME IN THE HAN DS OF THE ASSESSEE HAS ALREADY BEEN ASSESSED TO TAX, IN THE HANDS OF AKP & MSK AND HAS NOT BEEN DEDUCTED OUT OF THEIR TAXABLE INCOME TILL THE DATE, THE SAME CANNOT BE AGAIN TAXED IN THE CASE OF THE ASSESSEE, AND IT IS FURTHER DIRECTED THAT IN CASE THE DEDUCTION OF THE INCOME ASSESSED IN THE HANDS O F THE ASSESSEE HAS NOT BEEN ALLOWED AS DEDUCTION IN THE HANDS OF TWO COMPA NIES VIZ. AKP & MSK TILL THE DATE, THEN THAT SHOULD NOT BE ALLOWED AS DEDUCTION IN FUTURE ALSO. THE TDS HAS TO BE ALLOWED IN THE HANDS OF TH E PERSON IN WHOSE HANDS THE INCOME HAS BEEN ASSESSED TO TAX. ACCORDINGLY, IF THE INCOME IS NOT ASSESSED TO TAX IN THE HANDS OF THE PRESENT ASSESSE E, THEN THE CREDIT OF TDS SHALL ALSO NOT BE ALLOWABLE TO THE ASSESSEE. WE DI RECT ACCORDINGLY. ITA NO.819/AHD/2013 -4- 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( $% $% $% $% /T.R. MEENA) %& ' /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) ! ! ! ! /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD