Abhyudaya Housing & Construction Pvt. Ltd., Delhi V. DCIT, New Delhi

ITA 997/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9256 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PRAKASH MISHRA
• Keywords: Deemed to accrue or arise in india; TDS
• Section: 143(3); 147; 131; 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 997/DEL/2017 [ASSESSMENT YEAR: 2009-10] ABHYUDAYA HOUSING CONSTRUCTION PVT. LTD VS. THE D.C.I.T UNIT NO. 605, 6 TH FLOOR, CIRCLE 1(1) JAKSNS CROWN HEIGHTS, SECTOR 10 NEW DELHI ROHINI, DELHI PAN: AADCA 9526 B [APPELLANT] [RESPONDENT] DATE OF HEARING : 07.01.2020 DATE OF PRONOUNCEMENT : 08.01.2020 ASSESSEE BY : NONE REVENUE BY : SHRI VED PRAKASH MISHRA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 1, NEW DELHI DATED 05.12.2016 PERTAINING TO ASSESSMENT YEAR 2009-10. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER IN REOPENING ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REF ERRED TO AS 'THE ACT' FOR SHORT] THEREBY CONFIRMING THE ADDI TION OF RS. 18,36,364/-. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE OF SERVICE OF NOTICE. WE DECIDED TO PROCEED EX PARTE. 4. FACTS ON RECORD SHOW THAT PROCEEDINGS U/S 147 OF THE ACT WERE INITIATED FOR THE FOLLOWING REASONS: INCOME TAX OFFICER WARD 25(2), KOLKATA, DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR AY 2009-10 IN THE CASE OF SHRI BINOD KUMAR JHA HAS RECORDED THE STATEMENT OF SHRI BINOD KUMAR JHA U/S 131 ON 13/12/2011. DURING THE C OURSE OF STATEMENT, SHRI JHA HAS STATED T HAT HE HAD NEVER EXECUTED ANY WORK FOR MS ABHYUDAYA HOUSING CONSTRUCTION PVT LTD DURING THE FY 2008-09 RELEVANT TO ASSESSMENT YEAR 2 009-10. M/S ABHUYDAYA HOUSING CONSTRUCTION HAS PAID A SUM O F RS 18,36,364/- TO SHRI JHA AS PAYMENT FOR SUB-CONTRACT OR WHEREAS IN STATEMENT, SHRI JHA HAS SLATED THAT HE NEVER EXECUTED ANY WORK FOR ABHYUDAYA HOUSING CONSTRUCTIO N. THE 3 REPLY GIVEN BY SHRI JHA CONFIRMED THAT HE HAS MERELY PROVIDED A HAWALA ENTRY. ' 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CONFRONTED WITH THE RELEVANT EXTRACTS OF STATEMENT OF SHRI BINOD KUMAR JHA RECORDED ON OATH ON 13.12.2011 BY THE ITO, WARD 25(2), KOLKATA AND TH E SAME READ AS UNDER: Q5 KINDLY CONFIRM WHETHER YOU HAVE EVER HEARD OF A COMPANY CALLED ABHYUDAYA HOUSING & CONSTRUCTION PVT , LTD., A. NO I HAVE NEVER HEARD SUCH A NAME Q 6. HAVE YOU EVER EXECUTED ANY CIVIL CONTRACTS IN YOUR ENTIRE LIFETIME? A. NO Q 7. AM SHOWING YOU YOUR P&L A/C FOR THE A Y 2009-10 WHEREIN YOU HAVE SHOWN A DEEMED INCOME OF 8% AS APPLICABLE TO CONTRACTORS ON THE CONTRACT PAYMENTS RECEIVED FROM ABHYUDAYA HOUSING FOR WHICH CONSTRUCTION YOU HAVE ALSO CLAIMED THE TDS CREDIT. IN VIEW OF YOUR ABOVE REPLIES, KINDLY STATE WHETHER YO U 4 HAVE MERELY PROVIDED A HAWALA ENTRY TO THE SAID ABHYUDAYA HOUSING PVT LTD. A. MY JOB WAS TO MERELY RECEIVE THE CHEQUES FROM ABHYUDAYA HOUSING & CONSTRUCTION PVT LTD, DEPOSIT T HE SAME IN MY VIJAYA BANK ACCOUNT AND AFTER WITHDRAWIN G THE CASH TO HAND OVER THE SAME TO SHRI RAKESH SINGH FOR WHICH I WAS GIVEN A REMUNERATION OF RS. 10 TO 1 5 THOUSAND AS I DO NOT REMEMBER THE EXACT AMOUNT PAID TO ME I CONFIRM THAT I NEVER EXECUTED ANY WORK FOR ABHYDAYA HOUSING & CONSTRUCITON IN ASSESSMENT YEAR 2009-10 IN ANY OTHER ASSESSMENT YEAR TILL DATE. Q. 15 FROM ALL YOUR ABOVE REPLIES IT IS CRYSTAL C LEAR THAT YOU WERE MERELY A COG IN THE WHEN OF A BIG SYNDICATE OF ACCOMMODATION ENTRY PROVIDERS. IN VIEW OF THE SAME, HONESTLY AND TRUTHFULLY STATE WHAT WAS YO UR REAL MONETARY GAIN FROM THE ROLE YOU PLAYED IN THE ENTIRE SCHEME OF THINGS. A. I AGREE AND CONFIRM THAT I HAVE CLARIFIED MY ROL E IN THE ENTIRE SCHEME OF THINGS IN MY STATEMENT HEREIN ABOVE TRUTHFULLY AND HONESTLY. MY FINANCIAL COMPUL SIONS MADE ME DO WHAT I HAVE DONE AND I HONESTLY STATE TH AT I HAVE NOT EARNED MORE THAN RS. 5 LACS TILL WHATEV ER TIME I WAS SIGNING THE BLANK CHEQUES GIVEN TO ME BY 5 SHRI RAKESH SINGH. I AGREE THAT I HAVE PAID THE TAX ES DUE ON THIS INCOME OF RS. S LACS FOR ASSESSMENT YEA R 2009-10 AND PRODUCE THE CHALLAN IN A FEW DAYS TIME. 6. THE ASSESSEE FILED DETAILED REPLY REGARDING JUST IFICATION OF TRANSACTION OF RS. 18,36,364/-. IN ITS REPLY, THE ASSESSEE REFERRED TO THE AFFIDAVIT OF SHRI BINOD KUMAR JHA WHEREIN HE HA S ACCEPTED THE TRANSACTION AND HAS ALSO MENTIONED THAT HE WAS UNDE R DURESS AND HUGE TENSION AND MENTAL PRESSURE AT THE TIME OF ANSWERIN G THE QUESTIONS RAISED BY THE OFFICERS OF THE INCOME TAX DEPARTMENT REGARDING TRANSACTION WITH THE ASSESSEE. 7. THE ASSESSING OFFICER SOUGHT EXPLANATION FROM TH E ASSESSEE THAT ONCE SHRI BINOD KUMAR JHA HAS ADMITTED IN HIS STATE MENT, THEN WHY HE IS DENYING THE CONTENTS OF HIS STATEMENT BY WAY OF AN AFFIDAVIT. 8. ON RECEIVING NO PLAUSIBLE REPLY AND HEAVILY RELY ING ON THE STATEMENT OF SHRI BINOD KUMAR JHA, THE ASSESSING OF FICER MADE AN ADDITION OF RS. 18,36,364/-. 9. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. 6 10. HAVING HEARD THE LD. DR AT LENGTH, WE HAVE CARE FULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPU TE THAT THE ASSESSMENT WAS REOPENED ON THE STRENGTH OF STATEMEN T OF SHRI BINOD KUMAR JHA RECORDED BY THE ITO, WARD 25(2), KOLKATA. IT IS ALSO NOT IN DISPUTE THAT SUBSEQUENTLY, SHRI BINOD KUMAR JHA FIL ED AN AFFIDAVIT DENYING THE CONTENTS OF HIS STATEMENT. 11. IN OUR UNDERSTANDING OF FACTS, THE ENTIRE QUARR EL REVOLVES AROUND THE CONTRADICTORY STATEMENT OF SHRI BINOD KUMAR JHA AND ON HIS AFFIDAVIT. IN THE INTEREST OF JUSTICE AND FAIR PLA Y, WE DEEM IT FIT TO RESTORE THE ENTIRE ISSUE TO THE FILE OF THE ASSESSI NG OFFICER. THE ASSESSING OFFICER IS DIRECTED TO ONCE AGAIN EXAMINE SHRI BINOD KUMAR JHA AND ALLOW THE ASSESSEE TO CROSS EXAMINE SHRI BI NOD KUMAR JHA AND DECIDE THE ISSUE AFRESH AS PER PROVISIONS OF LAW. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IN ITA NO. 997/DEL/2017 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.01 .2020. SD/- SD/ - (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08 TH JANUARY, 2020. 7 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER