Kishore Kumar Bairwa, Delhi V. ITO, New Delhi

ITA 856/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69502 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-11-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER I.T.A .NO.-856/DEL/2013 (ASSESSMENT YEAR-2009-10) KISHORE KUMAR BAIRWA VS. ITO 55/3, ARYA NAGAR, WARD-38(2) DELHI-110092 NEW DELHI. PAN: AHHPK7463M (APPELLANT) (RESPONDENT) ASSESSEE BY:-SH. SATISH KHOSLA, ADV. REVENUE BY:-SH. D. K. MISHRA, DR ORDER PER JOGINDER SINGH, JM. THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 2 ND JANUARY, 2013 ON THE GROUND THAT THE LD. FIRST APPELLATE AUT HORITY ERRED IN CONFIRMING THE ASSESSMENT ORDER WITH RESPECT TO NOT GIVING CRE DIT OF TDS AMOUNT OF RS.6,78,369/-. 2 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I SATISH KHOSLA LD. COUNSEL FOR THE ASSESSEE AND SHRI D. K. MISHRA, LD. DR. THE CRUX OF ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE IS THA T THE LD. AO AS WELL AS THE LD. CIT (A) HAS NOT APPRECIATED THE FACTS IN PR OPER PROSPECTIVE. IT WAS SUBMITTED THAT THE REVISED COMPUTATION OF INCOME WA S FILED REVISING THE TOTAL TAXABLE INCOME @ 4.59% OF RS.18,90,827/- INCLUDING THE RECEIPT OF RS.1,72,47,391/- RECEIVED FROM M/S AJS DEVELOPERS A ND OTHERS. IT WAS SUBMITTED THAT THE MATTER MAY BE REMITTED TO THE FI LE OF THE LD. AO. ON THE OTHER HAND LD. SR. DR THOUGH DEFENDED THE ADDITION MADE BY THE AO BUT HAD NO OBJECTION, IF THE MATTER IS REMITTED BACK TO THE FILE OF THE LD. AO SO THAT THE CLAIM OF THE ASSESSEE MAY BE EXAMINED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT TH E ASSESSEE IS RUNNING A PROPRIETARY CONCERN IN THE NAME OF M/S K. K. CONSTR UCTIONS WHICH IS ENGAGED IN CIVIL CONSTRUCTION WORKS. DURING THE ASS ESSMENT PROCEEDINGS THE AO ASKED THE ASSESSEE TO RE-CONCILE THE GROSS RECEI PTS OF RS.2,39,38,020/-. THE QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE. IN RE SPONSE TO THE SAID QUESTIONNAIRE IT WAS CLAIMED BY THE ASSESSEE THAT T HE AMOUNT OF RS.1,72,47,391/- LEFT TO BE INCLUDED IN THE GROSS R ECEIPT DUE TO PROFESSIONAL 3 LAPSES. THEREAFTER THE ASSESSEE SUO MOTU REVISED TH E COMPUTATION OF INCOME APPLYING THE RATE OF 4.59% WHICH WAS DECLARED BY TH E ASSESSEE IN THE AUDIT REPORT FILED U/S 44AB OF THE IT ACT, 1961. IT IS NO TEWORTHY THAT THE LD. AO ACCEPTED THE REVISED COMPUTATION OF INCOME AND FINA LIZED THE ASSESSMENT U/S 143(3) OF THE ACT. HOWEVER, THE LD. AO REFUSED TO G IVE CREDIT OF TDS AMOUNTING TO RS.6,78,369/-. 4. ON APPEAL THE LD. CIT (A) AFFIRMED THE SAME AGAI NST WHICH THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. IF THE TOTALITY OF FACTS AVAILABLE ON RECORD, OBSERVATION MADE IN THE ASSESSMENT ORDER, C ONCLUSION DRAWN IN THE IMPUGNED ORDER AND THE ASSERTION MADE BY THE LD. RE SPECTIVE COUNSEL ARE KEPT IN JUXTAPOSITION AND ANALYSED WE NOTE THAT THE AO H IMSELF ACCEPTED THE REVISED COMPUTATION OF INCOME WHILE FRAMING THE ASS ESSMENT ORDER U/S 143(3) OF THE ACT. THE MANDATE OF THE ACT IS TO COL LECT LEGITIMATE TAXES. WE NOTE THAT THE ASSESSEE ALSO FILED COPY OF FORM NO. 16A, ISSUED BY M/S AJS DEVELOPERS AND OTHERS, IN HIS REVISED COMPUTATION O F INCOME, THE TOTAL GROSS RECEIPTS WERE CLAIMED TO BE SHOWN AT RS.4,11,85,411 /- WHICH INCLUDES RECEIPT OF RS.1,72,47,391/- RECEIVED FROM AJS DEVEL OPERS AND OTHERS. THE CLAIM OF THE ASSESSEE WAS THAT DUE TO INADVERTENCE AS THE RECEIPT OF RS.1,72,47,391/- COULD NOT BE INCLUDE IN THE TAXABL E INCOME FOR THE YEAR 4 UNDER CONSIDERATION, HOWEVER THE AMOUNT WAS OFFERED FOR TAXATION. IN VIEW OF THIS FACT, KEEPING IN VIEW THE PRINCIPLE OF NATU RAL JUSTICE, WE REMAND THIS ISSUE TO THE FILE OF THE LD. AO TO EXAMINE THE CLAI M OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD, WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, BE PROVIDED TO THE ASSESSEE TO SUBSTANTIATE HIS CLA IM. FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ON LY. ORDER PRONOUNCED IN THE OPEN COURT ON 26/11/2013 IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH THE SIDES, AT THE CONCLUSION OF THE HEARING. SD/- SD/- ( B. C. MEENA ) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 26/11/2013 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR