M/s. Bhooratnam Constructions Co. Ltd., Hyderabad V. ACIT, Central Circle-5, Hyderabad

MA 134/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9040 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: C P RAMASWAMY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. 134/HYD/2012 ARISING OUT OF ITA NO. 73/HYD/2011 A.Y. 2003-04 M.A. NO. 135/HYD/2012 ARISING OUT OF ITA NO. 74/HYD/2011 A.Y. 2004-05 M/S. BHOORATNAM CONSTRUCTION CO., HYDERABAD PAN: AAACJ5066A VS. THE ACIT CENTRAL CIRCLE-5 HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI C.P. RAMA SWAMY RESPONDENT BY: SRI V. SRINIVAS DATE OF HEARING: 27. 0 7 .2012 DATE OF PRONOUNCEMENT: 10.08.2012 O R D E R PER CHANDRA POOJARI, AM: BY THESE MAS THE ASSESSEE IS SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 12 TH OCTOBER, 2011 IN ITA NOS. 73- 74/HYD/2011. 2. THE LEARNED AR SUBMITTED THAT THE ISSUE WAS REGARDI NG CREDIT BEING GIVEN TO TDS IN FAVOUR OF THE ASSESSEE , ORIGINALLY DENIED BY THE ASSESSING OFFICER AND LATER ALLOWED B Y THE CIT(A). EARLIER, ON THE SAME ISSUE IN ASSESSEE'S OWN CASE I N ITA NOS. 183, 218 & 219/HYD/2011 BY ORDER DATED 28.07.011, THE AP PEALS FILED BY THE REVENUE WERE DISMISSED FOLLOWING THE ORDER O F THE TRIBUNAL IN THE CASE OF SISTER CONCERNS OF THE ASSESSEE IN I TA NO. 1671/HYD/2010 DATED 03-06-2011. SOMEHOW THAT ORDER WAS NOT FOLLOWED ON THE MISTAKEN IMPRESSION THAT 'THE TDS CREDIT WAS CLAIMED WHEN THE CORRESPONDING INCOME WAS NOT OFFER ED FOR TAXATION.' CONSEQUENTLY, HOLDING THE EARLIER ORDERS OF THIS B ENCH AS MA NOS. 134 & 135 / HYD/2012 M/S. BHOORATNAM CONSRUCTION CO. ========================= 2 PER INCURIAM, IN THE PRESENT INSTANCE APPEALS OF TH E REVENUE WERE ALLOWED. 3. THE AR FURTHER SUBMITTED THAT THIS CONCLUSION THAT ONLY TDS CREDIT WAS CLAIMED WITHOUT OFFERING THE CORRESPONDI NG INCOME FOR TAXATION IS FACTUALLY WRONG. ON THE CONTRARY IT IS RECORDED VIDE PARAGRAPH 10 OF THE ORDER OF THIS BENCH IN ITA NO. 1671/HYD/2010 DATED 03-06-2011 AS UNDER: 'ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE INCOME INCLUDED IN THE TDS CERTIFICATES HAS BEEN CONSIDERED FOR THE PURPOSE OF DETERMINING THE TOTAL INCOME OF THE ASSESSEE.' 4. THE AR SUBMITTED THAT THIS FACTUAL MATRIX HAS NOT C HANGED IN ANY OF THE TWO APPEALS FILED BY THE REVENUE IN T HE CASE OF THE ASSESSEE FOR ASSESSMENT YEARS 2003-04 AND 2004-05. THE ASSESSEE CLAIMED CREDIT FOR TDS RELATING TO MOBILIZATION ADV ANCE ONLY TO THE EXTENT OF SUCH ADVANCE RECOVERED AND INCLUDED IN TH E TURNOVER. FOR INSTANCE, THE FOLLOWING IS THE CORRECT POSITION : A.Y. TOTAL MOBILISATION ADVANCE (RS.) TDS ON TOTAL MOBILISATION ADVANCE (RS.) MOBILISATION ADVANCE RECOVERED AGAINST BILLS (RS.) TDS ON MOBILISATION ADVANCE RECOVERED (RS.) (1) (2) (3) (4) (5) 2003 - 04 2,84,86,000 5,98,206 33,05,028 69,406 2004 - 05 8,75,75,130 18,39,077 2,18,33,516 4,58,504 5. IT IS FURTHER SUBMITTED BY THE AR THAT THE TURNOVER IN COLUMN (4) ABOVE HAS BEEN INCLUDED IN THE GROSS TUR NOVER AND CONSEQUENTLY CREDIT FOR TDS IS CLAIMED ONLY TO THE EXTENT OF THE AMOUNT MENTIONED IN COLUMN (5) AND NOT ON THE AMOUN T APPEARING IN COLUMN (3). WHEREAS THE ISSUE INVOLVE D IN THE CASE OF M/S. LIMAK SOMA JV, HYDERABAD IN ITA. NOS. 99, 206 & 207/HYD/2010 AS EXTRACTED VIDE PARAGRAPH 5 OF THAT ORDER DATED 24-09-2010 WAS: MA NOS. 134 & 135 / HYD/2012 M/S. BHOORATNAM CONSRUCTION CO. ========================= 3 'THE QUESTION ARISES FOR CONSIDERATION IS WHETHER T HE TDS SHALL BE GIVEN CREDIT WHEN THE CORRESPONDING INCOME WAS NOT OFFERED FOR TAXATION.' 6. THE AR FURTHER SUBMITTED THAT THIS WAS NOT THE ISSU E IN THE APPEALS AGAINST THE ASSESSEE. THIS BEING A MISTAKE APPARENT FROM THE RECORD, THE AR PRAYED THAT THE SAME MAY BE CORR ECTED BY INVOKING THE PROVISIONS OF SUB-SECTION (2) OF SECTI ON 254 OF THE INCOME-TAX ACT, 1961. THE AR SUBMITTED THAT THE ASS ESSEE HAS BEEN CONSISTENTLY FOLLOWING THE METHOD OF NOT CLAIM ING CREDIT FOR ANY TDS WITHOUT OFFERING THE CORRESPONDING INCOME F OR TAXATION. EVEN IN RESPECT OF MOBILIZATION ADVANCE THE SAME ME THOD HAS BEEN FOLLOWED. CONSEQUENTLY, THE CASE OF THE PETITI ONER IS NOT FALLING WITHIN THE RATIO OF M/S. LIMAK SOMA JV. HE NCE, THE PRAYER IN TERMS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1 961. 7. THE LEARNED DR RELIED ON THE ORDER OF THE TRIBUNAL. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. CONSIDERING THE PLEA OF THE ASSESSEE'S COU NSEL, WE ARE OF THE OPINION THAT THE SAME CANNOT BE ACCEPTED IN TOT ALITY. THE TRIBUNAL FOLLOWED THE ORDER OF THE 3 RD MEMBER IN THE CASE OF PRADEEP KUMAR DHIR V. ACIT (2008) (303 ITR 45) (AT) (CHANDIGARH BENCH). HOWEVER, WE ARE INCLINED TO GIVE A DIRECTI ON TO THE ASSESSING OFFICER TO GIVE CREDIT TO THE TDS IF THE CORRESPONDING INCOME RELATING TO THE TDS IS OFFERED TO TAX. 9. IN THE RESULT, THE MAS FILED BY THE ASSESSEE ARE DI SPOSED OF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 10 TH AUGUST, 2012 MA NOS. 134 & 135 / HYD/2012 M/S. BHOORATNAM CONSRUCTION CO. ========================= 4 COPY FORWARDED TO: 1. M/S. BHOORATNAM CONSTRUCTION COMPANY, C/O. SRI C.P. RAMA SWAMY, ADVOCATE, FLAT NOS. 102 & 103, GITANJAL I APARTMENTS, PLOT NO. 108, SRINAGAR COLONY, HYDERABA D. 2. THE ACIT, CENTRAL CIRCLE 5, HYDERABAD. 3. THE CIT(A)-VII, HYDERABAD. 4. THE CIT (CENTRAL), HYDERABAD 5. THE DR A BENCH, ITAT, HYDERABAD. TPRAO