Income Tax Appellate Tribunal - Hyderabad
Pvr Projects Limited, Hyd, Hyderabad vs Acit, Circle-16(3), Hyderabad, ... on 27 June, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH "B", HYDERABAD
BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER
AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER
ITA No. 276/Hyd/2015
Assessment Year: 2009-10
PVR Projects Ltd., Hyderabad. vs. Asst. Commissioner of
Income-tax, Circle - 16(3),
PAN - AADCP6281C Hyderabad.
(Appellant) (Respondent)
Assessee by : Shri S. Rama Rao
Revenue by : Smt. N. Swapna
Date of hearing 21/06/2018
Date of pronouncement 27/06/2018
O RDE R
PER S. RIFAUR RAHMAN, A.M.:
This appeal filed by the assessee is directed against the order dated 22/10/2014 of CIT(A) - V, Guntur for AY 2009-10.
2. The assessee filed this appeal with a delay of 61 days. To this effect, assessee filed a petition for condonation as well as an affidavit wherein it was stated that since the AR of the assessee could not attend due to his pre-occupation as well as the MD of the company was out of station, who has to sign the appeal papers, there was a delay in filing the appeal, as delay was for the reasons beyond its control and is not intentional. Considering the submissions of the assessee and the objection of the ld. DR, we hereby condone the delay as the assessee was prevented by reasonable cause in not filing the appeals within the stipulated time and the appeal is admitted for hearing and adjudication.
2 ITA No. 276/Hyd/15PVR Projects Ltd., Hyd..
3. Briefly the facts of the case are, the assessee company engaged in the business of contract works, filed its e-return of income for the AY 2009-10 on 18/11/2009 admitting total income at Rs. 3,19,53,520/- under normal provisions of the Income-tax Act, 1961 ( in short 'the Act') and had claimed TDS credit of Rs. 1,08,61,033/- which included TDS in the name of the individual and also that of proportionate TDS of the works carried out relating to joint venture AOP. The AO completed the assessment by determining the income at Rs. 5,58,70,371/- by disallowing Rs. 1,89,16,851/- on account of late remittance of TDS on the subcontract payments of Rs. 50,00,000/- out of work expenses as they are self-vouched and by disallowing Rs. 62,92,887/- as the same was deducted on behalf of the assessee company.
3.1 Subsequently, the Assessee had filed petition u/s 154 against short TDS credit given along with original TDS certificates for the works carried out standing in the name of individual and a certificate from the AO of the JV requesting grant of TDS credit. It had also submitted that the arrears of tax demands arose only on account of TDS mismatch thereby requesting the AO to grant relief as the issue stood decided in favour of the assessee by virtue of appellate order by CIT(A) and ITAT for the AY 2006-07 which directed the AO to allow credit on TDS certificates in the name of the JV after verifying that the relevant turnover has been offered in the hands of the company.
3.2 However, the AO refused to give TDS credit and rejected the petition stating that CIT(A)'s order was pertaining to AY 2006-07 only and did not contain direction for the remaining AYs.
4. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A), who confirmed the order of AO by passing an ex- parte order by observing that the assessee has no intention of attending the hearings despite several notices and not filed any 3 ITA No. 276/Hyd/15 PVR Projects Ltd., Hyd..
adjournment petition as well as no supporting proofs were filed for its claim.
5. Aggrieved by the order of CIT(A), the assessee is in appeal before us raising the following grounds of appeal:
1. The order of the learned Commissioner of Income-Tax (Appeals) is erroneous both on facts and in law.
2. The learned Commissioner of Income-Tax (Appeals) erred in deciding the appeal ex parte without providing proper opportunity to the appellant.
3. The learned Commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing officer in passing an order u/s 154 denying credit for the tax deducted at source.
4. The learned Commissioner of Income-Tax (Appeals) ought to have seen that TDS to extent of Rs.62,92,887/- is not allowed by the Assessing officer and, therefore, there is an error in the order of assessment which could have been rectified by the Assessing Officer by passing an order u/s 154 of the I.T. Act.
5. The learned Commissioner of Income-Tax (Appeals) ought to have appreciated the fact that the income from which TDS of Rs.62,92,887/- was deducted was already considered for determining the total income of the appellant for the year under consideration and TDS of Rs.62,92,887/- is allowable as a deduction from the taxes payable.
6. Any other ground that may be urged at the time of hearing."
6. Before us, the ld. AR of the assessee submitted that Assessing Officer has accepted the income but not given TDS credit to the extent of Rs. 62,92,887/- where as TDS credit of Rs. 1,08,61,002/- was claimed in the return of income filed on 18.12.2009. Further, he submitted that on the same issue for the AY 2006-07 on denial of credit, the Assessee Company had preferred appeal and the CIT (Appeals) had directed the Assessing officer to grant TDS credit, which was further confirmed by ITAT.
7. Ld. AR submitted that, for the assessment year under consideration, the Assessee Company had filed petition u/s. 154 4 ITA No. 276/Hyd/15 PVR Projects Ltd., Hyd..
against short TDS credit given along with original TDS certificates for the works carried out standing in the name of individual and a certificate from the Assessing Officer of the joint venture requesting grant of TDS credit. It was also submitted that the arrears of tax demands arose only on account of TDS mismatch thereby requesting the assessing officer to grant relief as the issue stood decided in favour of Assessee company by virtue of appellate order by CIT (Appeals) & ITAT for the Asst. Year 2006-07, it was directed to allow credit on TDS certificates in the name of the JV after verifying that the relevant turnover has been offered in the hands of the assessee. Further, he submitted that CIT(A) has not given proper opportunity before dismissing the appeal.
8. Ld. DR, on the other hand, relied on the order of CIT(A).
9. Considered the rival submissions and perused the material on record. In assesesee's own case for AY 2007-08, vid ITA No. 1220/Hyd/2010, order dated 28/02/2011, the coordinate bench of this Tribunal dismissed the ground raised by the revenue in its appeal by observing as under:
"The ground raised by the revenue is as under:
In the fats and the circumstances of the case, when the TDS certificate has been issued by the AO of JV company and there is no provision in law for apportionment of said TDS between the members of the JV company, whether the directions of the CIT(A) directing the AO to allow proportionate TDS to assessee as a member of the said JV company is not erroneous in law. ?"
The coordinate bench held as under:
We have considered the submissions of the rival parties and perused the material available on record. We find that this issue is squarely covered by the decision of the Tribunal in the case of M/s Pradhana Constructions Company Vs. ACIT in ITA No. 1148/Hyd/2006, dated 04/04/2008 to which one of us is a party to that order, wherein the Tribunal held that as per the provisions of section 199 of the Act, credit for TDS is to be given to the person in whose case the receipts are attributable to the TDS are offered for taxation and in this case, the whole 5 ITA No. 276/Hyd/15 PVR Projects Ltd., Hyd..
receipts covered by TDS certificate are offered for taxation in the hands of two constituents of the JV. Hence, it was held that the credits of the TDS should be given in the hands of individual constituents only as per the share ratio agreed upon in the JV agreement. Hence, the Tribunal directed the AO to give effect to the certificate issued by the ITO, for the proportionate TDS in the assessee's return of income based on the certificate issued by the AO of the JV company. The facts of the present case are almost identical to that of M/s Pradhana Constructions Company (supra) and following the reasoning given thereunder in the above order, we see no infirmity in the order of the first appellate authority on this issue. Hence, the ground raised by the revenue stands rejected."
As the issue under consideration is materially identical to that of AY 2007-08, following the decision therein, we set aside the order of the CIT(A) and direct the AO to give credit of TDS of Rs. 62,92,887/- after verification of the claim of the assessee. Needless to say that assessee may be given proper opportunity of being heard. Accordingly, the grounds raised by the assessee on this issue are allowed.
10. In the result, appeal of the assessee is allowed for statistical purposes.
Pronounced in the open Court on 27 t h June, 2018.
Sd/- Sd/-
(P. MADHAVI DEVI) (S. RIFAUR RAHMAN)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Hyderabad, Dated: 27 th June, 2018
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Copy to:-
1) PVR Projects Ltd., C/o Sri S. Rama Rao, Advocate, Flat No. 102, Shriya's Elegance, 3-6-643, Street No. 9, Himayatnagar, Hyderabad - 500 029.
2) ACIT, Circle - 16(3), Aayakar Bhavan, Basheerbagh, Hyderabad.
4) CIT - IV, Hyd.
5) The Departmental Representative, I.T.A.T., Hyderabad.
6) Guard File