CSCHK - Soma Joint Venture, Hyderabad v. ACIT, Circle 6(1), Hyderabad

CO 1/HYD/2011 | 2007-2008
Pronouncement Date: 09-09-2011 | Result: Dismissed

Appeal Details

RSA Number 122523 RSA 2011
Assessee PAN AAAAC3418M
Bench Hyderabad
Appeal Number CO 1/HYD/2011
Duration Of Justice 8 month(s) 3 day(s)
Appellant CSCHK - Soma Joint Venture, Hyderabad
Respondent ACIT, Circle 6(1), Hyderabad
Appeal Type Cross Objection
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-09-2011
Assessment Year 2007-2008
Appeal Filed On 05-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH HYDERABAD BEFORE SHRI G.C. GUPTA VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER ITA NO.1357/HYD/2010 ASSESSMENT YEAR 2007-08 THE ACIT CIRCLE 6(1) HYDERABAD VS M/S CSCHK - SOMA JOIN T VENTURE HYDERABAD. (PAN AAAAC 3418 M) APPELLANT RESPONDENT CO.1/HYD/2011 ARISING OUT OF ITA NO.1357/HYD/2010 ASSESSMENT YEAR 2007-08 M/S CSCHK - SOMA JOINT VENTURE HYDERABAD. (PAN AAAAC 3418 M) VS THE ACIT CIRCLE 6(1) HYDERABAD APPELLANT RESPON DENT APPELLANT BY : SHRI B.V. PRASAD REDDY RESPONDENT BY : SHRI V. RAGHAVENDRA RAO DATE OF HEARING : 6.9.2011 DATE OF PRONOUNCEMENT : 9.9.2011 ORDER PER CHANDRA POOJARI A.M. THE APPEAL PREFERRED BY THE REVENUE AND THE CROSS OBJECTION RAISED BY THE ASSESSEE ARE DIRECTED AGAI NST THE ORDERS PASSED BY THE CIT(A) IV HYDERABAD DATED 13. 8.2010 AND PERTAINS TO THE ASSESSMENT YEAR 2007-08. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS IN IT S APPEAL : 2. THE CIT(A) ERRED IN DIRECTING TO ALLOW CREDIT FO R THE AMOUNT OF TDS EVEN THOUGH THE CORRESPONDING RECEIPT S ARE ITA NO.1357 OF 2010 M/S CSCHK-SOMA JOINT VENTURES HYD. 2 NOT OFFERED TO TAX. THE PROVISIONS OF SECTION 199 OF THE IT ACT ALLOW CREDIT FOR TDS ONLY TO THE EXTENT OF RECE IPTS OFFERED TO TAX ON WHICH TDS WAS DEDUCTED. 3. THE CIT(A) IS NOT CORRECT IN HOLDING THAT THE PR OVISIONS OF LAW CONTAINED IN SECTION 199 DO NOT STAND IN THE WA Y OF THE CLAIM MADE BY THE ASSESSEE FOR CREDITS IN RESPECT O F TDS MADE DURING THE RELEVANT PREVIOUS YEAR. 4. THE CIT(A) ERRED IN REFERRING TO THE DECISIONS O F THE M/S PROGRESSIVE CONSTRUCTIONS LTD. IN ITA NO.482 & 557/HYD/2001 DATED 23.11.2006. 5. IN THE CASE OF ITO VS. CSCHK-SOMA (JV) & ACIT VS. SOMA PATEL ACI (JV) FOR THE ASSESSMENT YEAR 2006-0 7 IN ITA NOS.99 206 & 207/HYD/2010 DATED 24.9.2010 THE JURISDICTIONAL ITAT HAS SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED THE ORDER OF THE ASSESSING OFFICER. 3. THE ASSESSEE RAISED THE FOLLOWING GROUNDS IN IT S CO NO.1/HYD/2011: 1. THE ORDER OF THE CIT(A) DESERVES TO BE SUSTAINED AS IT FOLLOWED THE ORDER OF THE HONBLE ITAT HYDERABAD B BENCH IN THE CASE OF M/S PROGRESSIVE CONSTRUCTIONS LIMITED IN ITA NO.482 AND 557/HYD/2001 DATED 23.11.2006 APPLYING THE MUMBAI BENCH DECISION OF TH E ITAT IN THE CASE OF TOYO ENGINEERING INDIA LIMITED (5 SOT 616) WHICH HAS BEEN DISTINGUISHED AND NOT OVER RULE S IN THE THIRD MEMBER CASE OF PRADEEP KUMAR DHIR VS. ACI T REPORTED IN 303 ITR (AT) 45 (CHD). 2. MOBILISATION ADVANCES PAID BEING NOT SUMS IN WHICH INCOME IS COMPRISED AS ENVISAGED IN THE PROVISIONS OF SEC TION 194C (1)(III) THE PAYER OF ADVANCES ERRED IN DEDUCT ING ANY AMOUNT TOWARDS INCOME TAX. SUCH AMOUNT DEDUCTED ILLEGALLY BUT PAID TO THE DEPARTMENT THROUGH INCOME TAX CHALLAN AND ACCORDINGLY APPROPRIATED BY THE DEPARTM ENT SHOULD BE CONSIDERED AS TAX PAID OTHERWISE AND NO T AS STATUTORY TDS. TAX PAID OTHERWISE IS TO BE GIVEN C REDIT U/S 234B(2) OF THE IT ACT AND NOT TREATED AS TDS U/S 19 9 OF THE IT ACT AND DENIED CREDIT. ITA NO.1357 OF 2010 M/S CSCHK-SOMA JOINT VENTURES HYD. 3 3. ACCORDING TO THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN THE CASE OF GE INDIA TECHNOLOGY CENTRE (P) LTD. VS CIT (327 ITR 456) DEDUCTION OF TAX IS NOT REQUIRED TO B E MADE IF THE SUM PAID IS NOT CHARGEABLE TO INCOME TAX. SUM HERE BEING ADVANCE NO INCOME IS COMPRISED THEREIN AND THEREFORE PROVISIONS OF SECTION 194C ARE NOT APPLIC ABLE. THE RATIO LAID DOWN BY THE SUPREME COURT APPLIES. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN OUR OPINION THIS ISSUE HAS BEEN SQUARELY COVERED BY THE ORDER OF THIS TRIB UNAL DATED 24.9.2010 IN ASSESSEES OWN CASE IN ITA NO.99/HYD/2010 FOR THE ASSESSMENT YEAR 2005-06 WHER EIN THE TRIBUNAL HAS DECIDED THE ISSUE AGAINST THE ASSE SSEE. HOWEVER THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS TRIED TO DISTINGUISH THE ORDER OF THE TRIBUNAL BY SUBMITTING THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION THE WORK IN PROGRESS IS ALSO OFFERE D TO TAX AND HENCE IT IS TO BE CONSIDERED TO ALLOW CREDIT FO R THE TDS. IN OUR OPINION CREDIT FOR TDS IS TO BE GIVEN ON CORRESPONDING RECEIPTS OFFERED FOR TAX INCLUDING WO RK IN PROGRESS IF THE WORK IN PROGRESS WAS SUBJECT TO TDS ON RECEIPT OF ADVANCE TOWARDS IT. THE ASSESSING OFFICE R WHILE PASSING THE CONSEQUENTIAL ORDER SHOULD CONSIDER THE SAME. 5. WITH THE ABOVE DIRECTION WE ALLOW THE GROUNDS TAKEN BY THE REVENUE. 6. SINCE WE HAVE ALLOWED THE APPEAL OF THE REVENU E THE CO FILED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS AN D DISMISSED AS INFRUCTUOUS. ITA NO.1357 OF 2010 M/S CSCHK-SOMA JOINT VENTURES HYD. 4 7. IN THE RESULT THE REVENUE APPEAL IS ALLOWED A ND CO FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 9.9.2011 SD/ - (G.C. GUPTA) SD/ - (CHANDRA POOJARI) VICE PRESIDENT ACCOUNTANT M EMBER DATED THE 9 TH SEPT 2011 COPY FORWARDED TO: 1. THE ACIT CIRCLE 6(1) 7 TH FLOOR D BLOCK IT TOWERS AC GUARDS HYDERABAD 2. M/S CSCHK-SOMA JOINT VENTURE D.NO.8-2- 623/5/1/1 14 AVENUE 4 BANJARA HILLS HYDERABAD 3. THE CIT(A) IV HYDERABAD 4. THE CIT HYDERABAD 5. THE DR ITAT HYDERABAD NP/ ITA NO.1357 OF 2010 M/S CSCHK-SOMA JOINT VENTURES HYD. 5