The Deputy Commissioner of Income Tax, Circle-3(1), Visakhapatnam V. Malineni Sambasiva Rao, , Visakhapatnam

MA 66/VIZ/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7340 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-05-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 26-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA VILLURI

Judgement Text

आयकरअपीलीयअधिकरण, विशाखापटणमपीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्रीद ु व्ि ू रुआरएलरेड्डी, न्याययकसदस्यएिंश्रीएसबालाक ृ ष्णन, लेखासदस्यकेसमक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER M.A. No.66/Viz/2023 (In आयकरअपीलसं./ I.T.A. No.56/Viz/2021) (निर्धारणवर्ा/ Assessment Year : 2014-15) Deputy Commissioner of Income Tax, Circle-3(1), Visakhapatnam. Vs. Malineni Sambasiva Rao, Visakhapatnam. (अपीलधर्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधर्थीकीओरसे/ Assessee by : Sri GVN Hari, AR प्रत्यधर्थीकीओरसे/ Revenue by : Dr. Aparna Villuri, Sr. AR स ु िवधईकीतधरीख/ Date of Hearing : 19/04/2024 घोर्णधकीतधरीख/Date of Pronouncement : 08/05/2024 O R D E R PER S. BALAKRISHNAN, Accountant Member : This Miscellaneous Application is filed by the Revenue seeking rectification of the Tribunal order in ITA No. 56/Viz/2021 (AY: 2014-15), dated 01/06/2023. 2. At the outset, the Ld. Departmental Representative [DR] submitted that the Tribunal has erred in not accepting the 2 contention of the assessee wherein the assessee has accepted before the Ld.AO that an amount of Rs. 2.39 Crs shall be treated as turnover of the assessee. However, it was the contention of the Revenue that the assessee has accepted the action of the Ld. AO but during the revisionary proceedings initiated by the Ld. Principal Commissioner of Income Tax, (Ld. Pr. CIT) the assessee has changed his submissions and stated that the receipts are not part of the turnover but the amount was explained as the same was received from M/s. Max Infra India Pvt Ltd., on 31/3/2014 as advance. The Tribunal while considering the submissions made by the Revenue and the Ld. Authorized Representative [AR] has considered the above facts and has concluded that the Ld. AO has failed to take on record the confirmation provided by M/s. Max Infra India Pvt Ltd., while disposing off the petition U/s. 154 of the Act stating that the matter has already been ceased by the Ld. Pr.CIT. The Hon’ble Tribunal has also found that the Ld. Pr. CIT also did not consider the contention of the assessee. However, the Tribunal based on the materials available on record and considering the submissions made by the Ld. AR held as follows: “6. We h ave h eard both the sides an d perused the material avail able on record and the orders of th e Ld. Revenue Au th ori ties. Admi ttedly, the assessee h as decl ared a lower tu rnover while filing 3 th e origin al re turn of income an d h as revised the tu rnover du rin g the assessmen t proceedin gs. The revision of tu rnover was due to the fact th at th e assessee h as en tered in to a Join t Ven tu re [J V] wi th M/s. Techno Infratech Projects India Pvt L td an d a par t of the to tal receip ts reflected in th e F orm-26AS does no t per tai n to the assessee bu t to the JV. Th e Ld. AO in h is order U/s. 143(3 ) h as men tion ed these f acts wh ile framing th e assessmen t U/s. 143(3 ) of th e Ac t. The Ld. AO on verification of the copy of the bank state men t of the assessee found th at th e assessee h as received an amoun t of Rs. 2,42,27,272/- from M/s. Max Infra ( I) Pvt L td., as men tioned in par a 3.12 of th e assessmen t order. The Ld. AO did not accept th e con ten tion of the assessee th at Rs 2.3 9 crs are advances received from M/s. Max Infr a (I) Pv t Ltd., could not be considered as tu rnover of th e assessee and th ereby the Ld. AO tr eated the same as to tal turnover of the assessee for the impugned assessmen t year. The Ld. AO also f ailed to take on record th e confirmation provided by M/s. Max Inf ra (I) Pv t Ltd., wh ile disposing off th e pe ti tion U/s. 154 of the Act s tating th at th e matter h as al ready been ceased by the Ld. Pr. C IT. The Ld. Pr. C IT al so did not accep t th e con ten tion of the assessee and direc ted the Ld. AO to verify th e n atu re and sou rce of credi ts agg reg ating to Rs. 2,39,85,000/- by providing reason able oppor tuni ty to th e assessee. The Ld. AO con sidering th e f ac t th at there is no business nexus wi th M/s. Max Infra ( I) Pvt L td an d th e assessee h as not furn ished any information in th is reg ard, treated the am oun t as un expl ained credi t U/s. 68 of the Ac t in th e h an ds of th e assessee and accordingly brough t i t to tax. F rom th e confirmation provided by Max Infra ( I) Ltd, wh ich is before us in paper book page 21, we f ind th e ledger accoun t of Unique Eng ineers in the books of Max In fra ( I) L td, we fin d no sales invoice accoun ted an d hence we are of th e considered view th at th e argu men ts of the Ld AR th at no work was execu ted deserves meri t. The Ld. C IT(A) in para 4.5 of his order h as observed as un der: “4.5. I h ave c aref ul l y considered the issues and the fac ts on record. T here is no denial of the f ac t th at the appel lan t h ad brough t to the noti ce of Assessing Off icer, the ini ti al error and the sub sequen t correc tion of accoun ts. This f ac t was no t denied by the Asse ssing Off icer. In ste ad, the Assessing Of f icer wan ts the ap pel l an t to expl ain the nature and source of paymen t. T he appel lan t h ad expl ained the amoun t as adv an ce received f rom M/s. Max Inf ra ( I) Pv t L td and i t refl ected in b al ance she et as on 31/3/2014 as adv ance. T he ledger accoun t of appel l an t in the books of Max Inf ra ( I) Pv t L td and vi ce versa was f il ed before the Assessing Off icer. I h ave peru sed the same and f ound the appel l an t h ad sho wn the receip t of Rs. 2,39,85,000/- and M ax Inf r a ( I) L td sho wn it as p aymen t. T he appel l an t h ad expl ained th at since no work was executed, an amoun t of Rs. 1,72,20,737/- was tr an sf erred to th e accoun t of Vensor Construc tion Comp any upon the reque st of credi tor. T he cl osing b al ance of Rs. 1,07,62,263/- was sho win g in the accoun t of appel l an t. On over al l consider ation of f ac ts, I am of the considered opinion th at the appel l an t h ad f urnished th e detail s of credi tor, genuineness and cred i twor thiness. It is cl ear f rom records th at the Asse ssing Off icer has not con trover ted an y of these f ac ts excep t stating th at the appel lan t h ad no t f urnished any inf ormation and business nexus. No enquiry, ei ther wi th the c redi tor or wi th Vensor Construc tion was conduc ted. T he primary b urden c ast upon the appel l an t was pri m a f acie disch arged by the appel l an t. T herefore, I f ind th at there is no ground to tre at the credi ts appe aring in the b ank accoun t to the ex ten t of Rs. 2.34 Crs as unexpl ained. I am of the 4 vie w th at the appel l an t had expl ained the cre di ts. Accordingl y, the Assessing Officer is directed to delete the addition.” 7. From the above discussion of the Ld. C IT (A), and from th e materials av ail able before us, we find th at there is no infirmity in the order of th e Ld. C IT(A) and we are of the considered view th at th ere is no in terference is req uired in the order of the Ld. C IT(A) and h en ce the grounds raised by th e Revenue are dismissed. 8. In the result, appeal of the Revenue is dismissed.” 3. From the above findings of the Tribunal, we find that the Tribunal has not committed any mistake while considering the confirmation provided by M/s. Max Infra India Pvt Ltd., and treating it as an advance in the balance sheet of the assessee on 31/3/2014. Therefore, we are of the considered view that there is no mistake apparent on record in the order of the Tribunal dated 01/06/2023 and hence the Miscellaneous Application filed by the Revenue is dismissed. 4. In the result, Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the Court on 08 th May, 2024. Sd/- Sd/- (द ु व्ि ू रु आर.एल रेड्डी) (एसबालाक ृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER लेखासदस्य/ACCOUNTANT MEMBER Dated : 08/05/2024 5 OKK - SPS आदेशकीप्रतिलिपिअग्रेपिि/Copy of the order forwarded to:- 1. निर्धाररती/ The Assessee–Malineni Sambasiva Rao, 15-17-2/4, Kranthi Nagar, Nakkavanipalem, Visakhapatnam, Andhra Pradesh- 530013. 2. रधजस्व/The Revenue – Dy. Commissioner of Income Tax, Circle-3(1), Income Tax Office, Infinity Tower, Shankaramatham Road, Santhipuram, Visakhapatnam, Andhra Pradesh-530016. 3. The Principal Commissioner of Income Tax, 4. आयकरआय ु क्त (अपील)/ The Commissioner of Income Tax 5. ववभधगीयप्रनतनिधर्, आयकरअपीलीयअधर्करण, ववशधखधपटणम/ DR,ITAT, Visakhapatnam 6. गधर्ाफ़धईल / Guard file आदेशधि ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam