Income Tax Appellate Tribunal - Mumbai
Shehabiah Tradingt & Investment Co. P. ... vs Assessee on 5 February, 2011
आयकर अपील य अ धकरण "ई" यायपीठ मुंबई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI ी आर. सी. शमा, लेखा सद य एवं ी ववेक वमा, या यक सद य के सम । BEFORE SHRI R. C. SHARMA, AM AND SHRI VIVEK VARMA, JM आयकर अपील सं./I.T.A. Nos. 5274/Mum/2009 & 1480/Mum/2010 ( नधारण वष / Assessment Years: 2005-06 & 2006-07) Shehabiah Trading & Investment Co. Income Tax Officer 5(3)(4), Pvt. Ltd. Mumbai बनाम/ 106, Churchgate Chambers, 5 New Marine Lines, Vs. Mumbai-400 020 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAFCS 8647 D (अपीलाथ /Appellant) : ( यथ / Respondent) अपीलाथ क ओर से / Appellant by : Shri B. V. Jhaveri यथ क ओर से/Respondent by : Shri Ashok Suri सनु वाई क तार ख / : 06.01.2014 Date of Hearing घोषणा क तार ख / : 10.01.2014 Date of Pronouncement आदे श / O R D E R Per R. C. Sharma, A. M.:
These are the appeals filed by the assessee against the order of the ld. CIT(A)-V, Mumbai for the assessment years (A.Y.) 2005-06 and 2006-07, in the matter of order passed by the Assessing Officer (A.O.) u/s.143(3) of the Income Tax Act, 1961.
2. In the A.Ys. 2005-06 and 2006-07 both, the assessee is agreed for addition made u/s.68. The assessee is also agreed for addition of Rs.1,13,300/- on account of TDS non-
deduction in the A.Y. 2006-07.
2 ITA Nos. 5274/M/09 & 1480/M/10(A.Ys. 05-06 & 06-07) Shehabiah Trading & Investment Co. Pvt. Ltd. vs. ITO
3. Rival contentions having heard and perused the material placed on record. Facts in brief are that the assessee is engaged in the business of construction. During the A.Y. 2005-06 the assessee claims to have received Rs.27,14,477/- as advances from fourteen persons against booking of flats in different projects of construction of flats undertaken by the assessee. In the assessment proceedings, the assessee failed to file confirmation of Mrs. Vijaya Hule and further the assessee failed to produce Mrs. Aruna Datir and Mrs. Rohini Malvadkar before the A.O. These two persons have also not filed any reply in response to letters issued by the A.O. under section 133(6) of the Income Tax Act. On these facts the A.O. held that the assessee has not been able to explain the credits by way of advances received in the name of three persons and treated the same as income of the assessee by invoking the provisions of section 68 of the Income Tax Act:
Datir Rs.26,845/-
Mrs. Vijaya Hule Rs.36,000/-
Rohini Malvadkar Rs.2,00,000/-
Total Rs.2,62,845/-
In the case of Mr. Zuzer Kanchwala two additions were made by the A.O. viz., of Rs.1,55,000/- and Rs.2,40,000/-. The Commissioner (Appeals) has deleted the addition of Rs.1,55,000/- but he has confirmed the addition of Rs.2,40,000/-. In the A.Y. 2006-07 similar additions were made by the A.O. In the appellate proceedings, the assessee submitted that A.O. has not given enough time to produce the persons from whom it received advances against the booking of flats. The assessee submitted that it filed details of confirmation before the A.O. in the month of July, 2007 and only on 07.12.2007 the A.O. asked the assessee to produce the parties on 14.12.2007 and, therefore, no proper opportunity was given. Further, the assessee submitted that the A.O. has not brought to its knowledge that confirmation of Mrs. Vijaya Hule is not on record. The assessee submitted that all these persons are at Pune and, therefore, it was not possible to produce them during such a short period.
3 ITA Nos. 5274/M/09 & 1480/M/10(A.Ys. 05-06 & 06-07) Shehabiah Trading & Investment Co. Pvt. Ltd. vs. ITO
4. Being not impressed by the contention of the ld. AR, the ld. CIT(A) confirmed the addition and the assessee is in further appeal before us.
5. The ld. AR has applied for filing the additional evidence before the Tribunal in the form of accounts of Mrs. Aruna Vijay Datir and Mrs. Sujata Hule in the books of the assessee company for the A.Ys. 2005-06 to 2009-10 and the copies of the ledger accounts of Mr. Juzer Kanchwala and Mrs. Ranjana Madan Malji in the books for the years ended 31.03.2005 and 31.03.2006.
6. Similarly for the A.Y. 2006-07, the ld. AR has filed following documents as additional evidences:
1) Affidavit of Smt. N. Z. Poonawala sworn on 13.04.2011.
2) Returns of income of Smt. Nafisa Zohar Poonawala for A.Ys.
1998-99 to 2003-04 and A.Ys. 2007-08 to 2009-10.
3) Ledger account of Mr. Naeem Khan for the period from 01.04.2009 to 31.03.2010.
4) Affidavit of Mr. Naeem Khan dated 5th February, 2011.
5) Rent receipt in respect of residential flat at Nana Peth, Pune in the name of Mr. Naeem R. Khan.
6) Acknowledgements of the returns of income of the assessee company for A.Ys. 2000-01 to 2002-03.
It was argued by the ld. AR that all these documents goes to the root of the issue and necessary for the disposal of the aforesaid appeals.
7. On the other hand, the ld. DR relied on the orders of the lower authorities.
8. We have considered the rival contentions carefully and gone through the orders of the authorities below and found from the record that the assessee company is engaged in the business of civil construction. The A.O. has added to the income of the assessee the advances of Rs.2,62,845/- received against booking of flats from the following persons:
4 ITA Nos. 5274/M/09 & 1480/M/10(A.Ys. 05-06 & 06-07) Shehabiah Trading & Investment Co. Pvt. Ltd. vs. ITO Datir Rs.26,845/-
Mrs. Vijaya Hule Rs.36,000/-
Rohini Malvadkar Rs.2,00,000/-
Total Rs.2,62,845/-
The assessee' representative vide their letter dated 16.07.2007 had submitted the details regarding advances received against booking of flats with confirmation letter/agreements. Xerox of the letter dated 16.07.2007 with confirmation of Datir and Rohini Malvadkar filed during the course of assessment proceedings was also enclosed at pages 22 to 27. The assessee has also filed copy of the bank statements wherein the receipts from all the aforesaid persons were reflected. The confirmation letter was also filed on 16.07.2007. However, the A.O. did not accept the format in which the confirmation letters were filed. Being not satisfied with the assessee's contention, the A.O. added the entire amount u/s.68. From the record, we find that the assessee had received the amount for booking of the flats and not as a loan. By filing the confirmation letter confirming that these parties have paid the amount for booking of flats/agreement the assessee has tried to discharge the initial burden of proving the genuineness of the transaction. By placing the additional evidence as discussed above, the ld. AR has tried to demonstrate that these receipts have been accounted for as income in the subsequent years. As per our considered view, all these evidence goes to the root of the issue which is required to be considered before making any addition. In the interest of justice and fair- play, we restore all these additional evidences to the file of the A.O. for examining the same and decide the issue afresh. Needless to say that the assessee should be given due opportunity before deciding the issue. The assessee is at a liberty to file any other evidence as required by the A.O. or which is relevant for deciding the issue under consideration. We direct accordingly.
The assessee has debited expenses of Rs.22,07,600/- pertaining to M/s. Shailesh Construction Company. However, the A.O. found that as per TDS certificate, the assessee has deducted TDS on expenses of Rs.22,94,300/-. The A.O. invoked the 5 ITA Nos. 5274/M/09 & 1480/M/10 (A.Ys. 05-06 & 06-07) Shehabiah Trading & Investment Co. Pvt. Ltd. vs. ITO provisions of section 40(a)(ia) of the Income Tax Act and disallowed the amount of Rs.1,13,300/-. As per the provisions of section 40(a)(ia) the claim for expenses, on which TDS is required to be deducted, are not to be allowed as deduction if either TDS is not deducted or after deduction the same is not deposited within the due date. Since the assessee has not deducted TDS out of expense of Rs.1,13,000/-, the A.O. was justified in disallowing the same. We confirm the action of the A.O. in this regard and dismiss ground no. 2 of assessee's appeal in A.Y. 2006-07.
9. In the result, the assessee's appeals for both the years are allowed in part, in terms indicated hereinabove.
Order pronounced in the open court on January 10, 2014 Sd/- Sd/-
(VIVEK VARMA) (R. C. SHARMA)
या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
मुंबई Mumbai; दनांक Dated : 10.01.2014
व. न.स./Roshani, Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. आयकर आयु त(अपील) / The CIT(A)
4. आयकर आयु त / CIT - concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब
ु ई / DR, ITAT, Mumbai
6. गाड फाईल / Guard File
आदे शानस
ु ार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt. Registrar)
आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai