M/s. Samkeet Infrastructure Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-2(4), Ahmedabad

ITSSA 764/AHD/2010

• Counselvise Citation: [2014] 121 COUNSELVISE.COM (IT) 9971 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 31-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 26-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS SRDR
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard; Revised return

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BENCH, AHMEDABAD .., ! '# '# '# '# $ %&, ! BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER (SS) #./ I.T(SS).A. NO.764/AHD/2010 ( ( ')( ( ')( ( ')( ( ')( / / / / ASSESSMENT YEAR : 2007-08) M/S.SAMKEET INFRASTRUCTURE PVT.LTD. 501, SHEEL COMPLEX-IV MAYUR COLONY MITHAKALI, AHMEDABAD / VS. THE ACIT CENTRAL CIRCLE-2(1) AHMEDABAD !* #./+, #./ PAN/GIR NO. : AAJCS 4663 D ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI S.N. DIVATIA, AR ./*- 1 0 / RESPONDENT BY : SHRI K.C. MATHEWS, SR.DR $'2 1 & / / / / DATE OF HEARING : 31/12/2014 34) 1 & / DATE OF PRONOUNCEMENT : 08/01/2014 5 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-III, AHMEDAB AD (CIT(A) FOR SHORT) DATED 13/09/2010 PERTAINING TO ASSESSME NT YEAR (AY) 2007- 08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1.1. THE ORDER PASSED U/S.250 ON 13.09.2010 FOR A.Y. 200 7-08 BY CIT(A)-III, ABAD, REJECTING THE RECTIFICATION APPL ICATION U/S.154 DT. 7.9.09 CLAIMING CREDIT FOR TDS OF RS.51,488/- I S WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IT NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENCE PRODUCED BEFORE HIM. THE LD.CIT(A) HAS EA RNED ON IT(SS)A NO.764/ AHD/2010 M/S.SANKEET INFRASTRUCTURE PVT.LTD. VS. ACIT ASST.YEAR 2007-08 - 2 - HOLDING THAT AR COULD NOT TELL AS TO WHERE INCOME F ROM WHICH TDS WAS MADE WAS DISCLOSED IN THE BOOKS OR RETURN O F INCOME. THE APPELLANT HAD FILED AUDITED ANNUAL ACCOUNTS WHE REIN NET INTEREST EXPENSES (RECEIVED AND PAID) WAS DISCLOSED UNDER THE HEAD CAPITAL WORK IN PROGRESS PENDING ALLOCATION. TDS WAS SHOWN UNDER THE HEAD LOANS & ADVANCES GROUPING OF BALANCE SHEET AND IT WAS CLEARLY POINTED IN WRITTEN SUBMISS ION DT. 30.8 2010. 2.1. THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FA CTS IN UPHOLDING THE RECTIFICATION APPLICATION REJECTED BY AO. 2.2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD.CIT(A) OUGHT NOT TO HAVE HELD THAT THE APPELLANT HAD NEITH ER CLAIMED TDS IN THE RETURN OF INCOME OR IN THE BOOKS OF ACCO UNT NOR THERE WAS ANY APPARENT MISTAKE IN THE RECORD OF AO. IT IS, THEREFORE, PRAYED THAT THE ORDER PASSED BY C IT(A) SHOULD BE QUASHED AND APPELLANT SHOULD ALLOW CREDIT FOR TDS O F RS.51,488/-. 2. THE FACTS IN BRIEF UPTO THE STAGE OF LD.CIT(A) A RE AS UNDER: 2. BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT HAD FILED ITS RETURN OF INCOME FOR A.Y. 2007-08 ON 30/10/2007 DEC LARING TOTAL INCOME AT NIL. THE ASSESSMENT ORDER WAS PASSED BY THE AO U/S.143(3) ON 29/12/2008 AT THE TOTAL INCOME OF NIL . SUBSEQUENTLY ON 19/5/2009 THE APPELLANT FILED A RECTIFICATION AP PLICATION U/S.154 CLAIMING THE REFUND OF TDS OF RS.51,488/- WHICH WAS NEITHER CLAIMED IN THE ORIGINAL RETURN OF INCOME NOR WAS CL AIMED AT THE TIME OF ASSESSMENT PROCEEDINGS. THIS APPLICATION W AS REJECTED BY THE AO VIDE HIS ORDER DATED 17/9/2009 ONT EH GROUND THAT THE ASSESSEE HAS NOT SUBMITTED ANY REVISED RETURN OF IN COME TO CLAIM THE TDS OF RS.51,488/-. FURTHER THE APPELLANT HAS NTO PREPARED ANY P&L ACCOUNT ON THE GROUND THAT IT WAS CARRYING OUT CONSTRUCTION AND DEVELOPMENT FOR ITS MEMBERS/SHARE HOLDERS AND WAS NOT CARRYING OUT ANY COMMERCIAL ACTIVITY ON WHI CH PROFIT CAN BE EARNED. AS THE INTEREST IS EARNED BY THE ASSESS EE FROM THE 3 RD PARTY AND NOT FROM HIS MEMBERS OR SHARE HOLDERS AND ISSUE IS DEBATABLE. THEREFORE, NOT COVERED U/S.154. AGAINS T THIS ORDER OF THE AO THE APPELLANT HAS FILED THE PRESENT APPEAL. IT(SS)A NO.764/ AHD/2010 M/S.SANKEET INFRASTRUCTURE PVT.LTD. VS. ACIT ASST.YEAR 2007-08 - 3 - 2.1. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSES SEE, THE LD.CIT(A) HAS DISMISSED THE APPEAL. 3. THE ONLY EFFECTIVE GROUND IS AGAINST THE CONFIRM ATION OF THE ACTION OF THE ASSESSING OFFICER IN RESPECT OF REJECTION OF APPLICATION MADE U/S.154 OF THE ACT. 3.1. THE LD.COUNSEL FOR THE ASSESSEE SHRI S.N.DIVAT IA SUBMITTED THAT OWING TO THE MISTAKE, THE ASSESSEE COULD NOT CLAIM THE CREDIT OF TAX DEDUCTED AT SOURCE, HOWEVER, THE DEDUCTION OF THE T AX WAS WELL WITHIN THE KNOWLEDGE OF THE INCOME TAX DEPARTMENT. HE HAS DRA WN OUR ATTENTION TOWARDS PAGE NO.16 OF THE PAPER-BOOK, WHEREIN FORM NO.26AS IS ENCLOSED. HE PLACED RELIANCE ON THE DECISION OF TH E HONBLE COORDINATE BENCH (ITAT A BENCH AHMEDABAD) RENDERED IN THE CA SE OF SADBHAV ENGINEERING LTD. VS. DY.CIT (CROSS-APPEALS) IN ITA NO.610/AHD/2008 (AND OTHERS) FOR AY 2005-06, DATED 19/12/2013. HE ALSO DREW OUR ATTENTION TOWARDS THE PAPER-BOOK, WHEREIN LEDGER A CCOUNT OF SAVVY CONSTRUCTION CO. AS ON 1/4/2006 TO 31/3/2007 IS ENC LOSED REFLECTING AN ENTRY OF RS.2,29,447/- AS INTEREST @ 12%. IN FORM NO.26AS, AN AMOUNT OF RS.51,488/- IS REFLECTED AS TDS DEPOSITED. 3.2. ON THE CONTRARY, LD.SR.DR SHRI K.C.MATHEWS SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASS ESSEE HAS NOT REFLECTED THE RECEIPTS OF ACCOUNTS IN ITS BOOKS OF ACCOUNT. 3.3. IN REJOINDER, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT NETTING OF INTEREST HAS BEEN DONE AND NETTING OF INTEREST T AX IS DEDUCTED. IT(SS)A NO.764/ AHD/2010 M/S.SANKEET INFRASTRUCTURE PVT.LTD. VS. ACIT ASST.YEAR 2007-08 - 4 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT IN DISPUTE THAT THE TAX WAS NOT DEPOSITED BY THE ASSESSEE- COMPANY. THE AUTHORITIES BELOW HAVE REJECTED THE C LAIM ON THE BASIS THAT THE ASSESSEE HAS NOT CLAIMED THE CREDIT IN ITS RETU RN OF INCOME. AFTER CONSIDERING THE RIVAL CONTENTIONS AND LOOKING TO TH E FACTS OF THE MATTER, IN THE INTEREST OF JUSTICE, WE HEREBY SET ASIDE THE OR DER OF THE LD.CIT(A) AND RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OF FICER TO VERIFY THE CLAIM OF THE ASSESSEE WHETHER THE RECEIPTS HAVE BEEN REF LECTED IN ASSESSEES BOOKS OF ACCOUNTS OR NOT. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THIS ISSUE IN ACCORDANCE WITH LAW, AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ($ %&) ! ! ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/01/2014 8.., '.../ T.C. NAIR, SR. PS IT(SS)A NO.764/ AHD/2010 M/S.SANKEET INFRASTRUCTURE PVT.LTD. VS. ACIT ASST.YEAR 2007-08 - 5 - 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)& 5 1 .&9 :9)&/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. ## & $; / CONCERNED CIT 4. $;() / THE CIT(A)-III, AHMEDABAD 5. 9'%< .& , , / DR, ITAT, AHMEDABAD 6. <( =2 / GUARD FILE. 5$ 5$ 5$ 5$ / BY ORDER, /9& .& //TRUE COPY// > >> >/ // / #+ #+ #+ #+ ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 1.1.14 (DICTATION-PAD 5- PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.1.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.8.1.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.1.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER