PETROFAC INTERNATIONAL LTD, MUMBAI V. ADIT (IT)4(2), MUMBAI

ITA 8606/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2966 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 11-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2011
• Court: TRIBUNAL
• Department Lawyers: DEEPKANT PRASAD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S HRI R.C. SHARMA , ACCOUNTANT MEMBER & SHRI PAWAN SINGH , J UDICIAL MEMBER ./ I.T.A. NO. 8606 /MUM/20 11 ( / ASSESS MENT YEAR : 20 0 8 - 2 00 9 PETROFAC INTERNATIONAL LIMITED, C/O PETROFAC ENGINEERING INDIA PRIVATE LIMITED, 6 TH FLOOR, OLMPIA, HIRANANDANI BUSINESS PARK, POWAI, MUMBAI 400 076. / VS. THE ASSISTANT DIRECTOR OF INCOME TAX 4(2), INTERNATIONAL TAXATION, SC INDIA HOUSE, N. MORARJI ROAD, BALLARD ESTATE, MUMBAI 400 001. ./ PAN : AAA CP6611P ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI VIJAY MEHTA R E SPONDENT BY : SHRI DEEPKANT PRASAD (D. R) / DATE OF HEARING : 11 - 8 - 2015 / DATE OF PRONOUNCEMENT : 21 - 10 - 2015 [ / O R D E R PER R.C. SHARMA , A .M . : THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF LD. DRP II, MUMBAI DATED 16 - 9 - 2011 FOR THE A.Y. 200 7 - 08 IN THE MATTER OF ORDER PASSED U/S 143(3) R.W.S. 144C(13) OF THE INCOME TAX ACT, 1961. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. THE ASSESSEE IS A FOREIGN COMPANY FILE D ITS RETURN OF INCOME FOR ASSESSMENT YEAR ON 14 - 11 - 2008 SHOWING TOTAL INCOME OF RS. 2,34,87,795/ - . THE NET PROFIT AS PER THE PROFIT AND LOSS ACCOUNT WAS SHOWN AT R S. 2,41,93,266/ - . FROM THE PERUSAL OF ITA 8606 / M/ 1 1 2 THE TDS CERTIFICATES FILED WITH THE RETURN OF INCOME , THE GROSS INCOME WHICH WAS SUBJECTED TO TDS WAS RS. 32,77,04,276/ - AND THE TDS THEREON WAS RS. 1,41,39,295/ - . AGAINST THE SAID FIGURE WHICH WAS SUBJECTED TO TDS, THE ASSESSEE OFFERED THE INCOME OF RS. 23,99,58,139/ - . THE DIFFERENCE OF RS. 8,77,46,137/ - WAS ADDED BY THE A.O. IN ASSESSEES INCOME. BY THE IMPUGNED ORDER, THE DRP CONFIRMED THE ACTION OF AO, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND FOUND FROM RECORD THAT THE ASSESSEE HAS FILED RECONCIL IATION STATEMENT OF THE INCOME DISCLOSED IN THE TDS CERTIFICATE VIS - - VIS THE INCOME OFFERED IN THE P&L ACCOUNT. FROM THE RECORD WE FOUND THAT AN AMOUNT OF RS. 3,33,88,364/ - WAS CREDITED TO THE PROFIT AND LOSS ACCOUNT OF EAR LIER YEARS AND DEBITED TO THE DEBTORS ACCOUNT WHICH MEANS THIS SUM OF MONEY HAS ALREADY BEEN CREDITED BY THE ASSESSEE IN THE INCOME OF EARLIER YEARS WHICH IS VERIFIABLE FROM THE STATEMENT OF ACCOUNT OF EARLIER YEARS FILED BY THE ASSESSEE AND PLACED ON RECO RD. WE ALSO FOUND THAT AN AMOUNT OF RS. 4,27,06,000/ - WAS CREDITED TO P&L ACCOUNT OF EARLIER YEARS AND DEBITED TO WORK - IN - PROGRESS ACCOUNT . SINCE THIS AMOUNT HAS ALREADY BEEN IN THE BOOKS OF ACCOUNT OF EARLIER YEARS, THEREFORE, CANNOT BE ADDED TO THE INC OME OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION NOTWITHSTANDING THE FACT THAT ONGC HAS DEDUCTED THE TAX THEREON DURING THE YEAR UNDER CONSIDERATION . WE ALSO FOUND FROM RECORD THAT THE AMOUNT NOT RECEIVED BY THE ASSESSEE BUT CONSIDERED BY IOCL FOR T DS PURPOSES BEING RECOVERIES MADE BY THE IOCL, CANNOT BE TREATED AS INCOME OF THE ASSESSEE WHICH AMOUNTS TO RS. 1,08,45,854/ - . THERE IS ALSO A DIFFERENCE OF RS. 8,05,919/ - BEING DIFFERENCE DUE TO FOREIGN EXCHANGE FLUCTUATION. 4. AS PER THE DOCUMENTS PLAC ED ON RECORD, THE LD. A.R. INVITED OUR ATTENTION TO THE RECONCILIATION STATEMENT FILED BEFORE THE LOWER AUTHORITIES WITH REGARD TO THE ABOVE ADDITIONS. HOWEVER, IT APPEARS THAT THE LOWER AUTHORITIES ITA 8606 / M/ 1 1 3 HAVE NOT PROPERLY APPRECIATED THE CONTENTION OF THE ASSE SSEE REGARDING CREDITING THE AMOUNT IN EARLIER YEARS AS ITS PROFIT AND OFFERING THE SAME FOR TAXATION . IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE ISSUE BACK TO THE FILE OF THE A.O. FOR CONSIDERING THE SAME AFRESH AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . O RDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER , 2015. SD/ - SD/ - ( PAWAN SINGH ) ( R.C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 21/10/2015 [ . . ./ RK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE DRP II, MUMBAI 4. / C IT CONCERNED, MUMBAI 5. , , / DR, ITAT, MUMBA I C BENCH 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI