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TMI Blog2017 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... e and should have gone into the details and then pass some order. In such circumstances, he should not have restore the matter back to the file of the A.O. The decision relied upon by the Learned Counsel for the Assessee clearly support the submissions of the assessee. As regards the interest earned and TDS deducted by SBI, the Pr. CIT was of the view that this claim has been made against PAN of the Assessee-Firm. However, Learned Counsel for the Assessee referred to PB-14 which is Profit and Loss Account for assessment year under appeal, in which assessee did not make any such claim. Further, such issue was not raised in the show cause notice under section 263 of the I.T. Act. Therefore, such issue cannot be taken in adverse against the assessee in the impugned order under section 263 of the I.T. Act. Considering the totality of the facts and circumstances in the light of above discussion, we are of the view that the assessment order passed by the A.O. is in accordance with Law in which no infirmity have been pointed-out so as to invoke jurisdiction under section 263 - Decided in favour of assessee. - ITA.No.2806 And 2807/Del./2016 - - - Dated:- 30-11-2017 - SHRI BHAVNESH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income on 11th March, 2013 declaring income of ₹ 2,15,986 in the status of Firm claiming refund of ₹ 26,47,006. The A.O. passed the re-assessment order dated 21st February, 2014 on total income of ₹ 3,66,860 by creating a total demand of ₹ 46,618 after allowing TDS of ₹ 66,741 as appearing on the system of PAN AADFD4239K and net payable demand was determined at ₹ 62,331 for which demand notice was issued. The Ld. Pr. CIT also noted that the said demand is still outstanding. On perusal of record, it was revealed that assessee has filed an application requesting for refund of ₹ 25,80,265 on account of total TDS of ₹ 26,47,006. The assessee enclosed Form 16A issued by various DDOs but the amount of TDS is not verifiable on the system of the Revenue Department. On perusal of the Form-16A reveals that PAN on these Form 16A is mentioned as AJYPK7569F which is PAN of individual, whereas assessment in this case was completed on the Firm having separate PAN AADFD4239K for which the case was reopened under section 148 of the I.T. Act, 1961. Thus, the payment of contract and TDS deducted on payment is not verifiable from the system. Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m engaged in the business of Civil Contract and one of the partner of the Firm Shri Dayanand had taken the contracts in his name and transferred the same to the Assessee-Firm. The contracts were transferred to the Firm by the partner in terms of clauses of the Partnership Deed. Since contracts were in the name of partner, the TDS was deducted in the name of partner but since the contracts were transferred to Firm, the TDS was also transferred to the Firm. However, since the TDS was not made in the name of the Firm, therefore, it did not reflected in Form No.26AS of the Firm. He has submitted that the A.O. reopened the assessment because of these reasons and assessed the income in the hands of the Firm. PB-3 is computation of income of the Assessee-Firm and PB-14 is Profit and Loss Account showing the same facts in respect of assessment year under appeal. PB-97 is Partnership Deed dated 1st April, 2002. The contract was taken by one of the partner Shri Dayanand but entire work was executed by the Assessee-Firm. PB-5 is PAN of the individual Mr. Dayanand. In preceding assessment year also, similar income is earned in the hands of the Assessee-Firm and TDS benefit have been allowed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to decide about genuineness of gift afresh, was not sustainable. 4.2. In the case of Director of Income Tax vs. Jyoti Foundation (2013) 357 ITR 388 (Del.) in which it has been held as under : Where revisionary authority opined that further inquiry was required, such inquiry should have been conducted by revisionary authority himself to record finding that assessment order passed by Assessing Officer was erroneous and prejudicial to revenue. 4.3. In the case of Income Tax Officer vs. D.G. Housing Projects Ltd., (2012) 343 ITR 329 (Del.), in which it has been held as under : Where Commissioner had doubts about valuation and sale consideration received in computation of capital loss but he had not examined said aspect himself, order of remit could not be passed by Commissioner asking Assessing Officer to decide whether order was erroneous. 4.4. In the case of Commissioner of Income Tax vs. DLF Ltd., (2013) 350 ITR 555 (Del.), in which it has been held as under : Where disallowance of expenditure for exempted income was debatable and order of Assessing Officer could not be held as unsustainable, revisionary powers could not be exercised. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted because it was directed that refund, if any, as per TDS shall have to be claimed by the individual partner. However, the order of the Ld. CIT(A) dated 23rd November, 2016 for A.Y. 2012-2013 have been set aside by the ITAT, Delhi Bench in the case of assessee in ITA.No.2027/2016 dated 16th October, 2017. The entire order of the Tribunal is reproduced as under : IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA No. 2027/DEL/2016 [A.Y. 2012-13] Dayanand Contractor C/o. N.C.Garg, CA Mal Godam Road Rohtak PAN : AADFD4239K V/s ITO Ward-1 Rohtak [Appellant] [Respondent] Date of Hearing : 10.10.2017 Date of Pronouncement : 16.10.2017 Assessee by : Shri Gautam Jain, Sh. Lalit Mohan, CA Revenue by : Shri T. Vasanthan Sr. DR ORDER This appeal of the assessee arises from the order of the ld. CIT(A)- Faridabad vide order dated 23.02.2016 for assessment year 2012-13. 2. The assessee has raised following additional grounds of appeal: 1. That the learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the TDS shown in AS26 and in the return filed by the appellant. During the course of appellate proceedings the appellant was asked to reconcile these differences, in the return the appellant has shown at total income of ₹ 7,90,480/- with the TDS of ₹ 13,01,041/-, and no refund was claimed in the return. However in the computation of income subsequently filed by the appellant the appellant has claimed a refund of ₹ 10,42,130/- on account of TDS. During the course of assessment proceedings, the appellant stated that the difference between Form No. 26AS and the business receipts (contractor payments) of ₹ 7,99,45,009/- was on account of the fact that one of the partners in the firm (Dayanand) had taken the contracts in his name and transferred the same to the firm. The contracts were transferred to the firm by the partner in terms of clause 1 of the partnership deed. Since the contracts were in the name of the partner, the TDS was deducted in the name of the partners but since the contracts were transferred to the firm, the TDS was also transferred to the firm. However, since the TDS was not made in the name of the firm, therefore, it did not reflect i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derabad-Trib.) (page 73-84 of paper book), it has been held as under: 22. In view of the above discussion and considering the facts and circumstances of the case, we are of the view that the relationship created by the Partnership Deed dated 31st August, 2007 and partners cannot be considered as subcontractors of the firm and they are jointly and severally liable towards the owners for the execution of the contract commitments in accordance with the contract conditions. Being so, the provisions of section 194C cannot be attracted so as to treat them as sub-contractors of the firm thereby invoking the provisions of section 40(a)(ia). In other words, we can safely conclude that there is no subcontract between JV and the constituents and since the JV has been formed only to procure contract works from the Government and the contract is being executed by the constituents partners in their sharing ratio 60:40 as per the terms of the JV, it cannot be said that the JV is a contractor and its constituents are sub-contractors. Accordingly, we et aside the orders of the revenue authorities and delete the disallowance of ₹ 1,11,09,23,018/- made by the Assessing Officer by invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of order of granting interest on said refund at pages 44 of paper book. The aforesaid position is accepted in preceding assessment years in assessee s own case. The Assessing Officer at last page of the order of assessment has held as under: i) As per back ground of the case, the assessee is being assessed to tax for the last 15 years in his individual status and since 2002 onwards in the status of firm also. 10. Reliance in support of the principle of consistency was placed on the following judgments: i) 358 ITR 295 (SC) CIT vs. Excel Industries Ltd. ii) 308ITR 161 (SC) CIT vs. J. K. Charitable Trust iii) 266ITR 99 (SC) CIT v. Berger Paints iv) 394 ITR 449 (SC) Godrej Boyce Manufacturing company Ltd. vs. DCIT. 11. Reliance was also placed on the following: That mere allotment of contract does not bring about any liability to tax the income from contract in the hands of entity in whose name contract is allotted and not executing the contract. i) ITA No. 7698/M/2010 A.Y. 2007-08SMC Ambika JV v. ITO (pages 58-65 of Paper Book) ii) 53 SOT 220 (Hyd) MEIL Sew Maytas BHEL (JV) v. ITO (pages 66-72 of Paper Book) iii) ITA No.44/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aveen Kumar Jain v ITO dated 22.1.2015 ix) ITA No. 3534/D/2014(Del Tri) Munni Devi vs ITO68 STO 197 (Del) Bir Bahadur Singh Sijawali x) 57 ITR 532 (SC) Parimisetti Setharamamma vs. CIT xi) 159 ITD 329 (Asr) Sh. Amrik Singh vs ITO xii) 108 ITD 115(Agra) Saraf Gramodyog Sansthan vs ITO xiii) ITANo. 3873/D/2016 xiv) Assessment Year 2009-10 dated 23.01.2017 Zahid Hassan 15 In view of the above, the additional ground that the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in not directing the learned Assessing officer to include the income from contract work declared by the appellant in the return of income furnished, by the appellant for the instant assessment year is directed to be allowed and TDS is also directed to be allowed. Thus the grounds of the assessee are allowed. 16. In the result, the appeal of the assessee is allowed. 6.1. The above order of the Tribunal clearly show that the issue is identical in the case of the assessee in the present proceedings under section 263 of the Act which have already been decided by the Tribunal in favour of the assessee. The Tribunal in this year has also mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Hon ble Supreme Court in the case of Radha Swamy Satsung vs. CIT (1992) 93 ITR 321. The Hon ble Supreme Court in the case of Malabar Industrial Co., Ltd., vs. CIT (2000) 243 ITR 83 held that where two views are possible and A.O. has taken one view with which the Commissioner does not agree, the said order cannot be treated as an erroneous order, prejudicial to the interests of the Revenue, unless view taken by the A.O. is unsustainable in law. In the case of the assessee, in preceding assessment years as well as in subsequent years, similar claim of assessee has been allowed and even the Tribunal allowed the claim of assessee for A.Y. 2012-2013. The A.O. in a comparable case of Shri Ranbir Singh (supra), has accepted the similar claim of the assessee. Therefore, if the A.O. in the present assessment order accepted the claim of assessee for refund of the tax based on TDS Certificate issued in the name of the individual, the order of the A.O. is clearly sustainable in law. The Ld. D.R. however, contended that A.O. did not apply his mind to the facts of the case as well as passed a perfunctory order. The A.O. being an Investigator and Adjudicator, should have de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me order. In such circumstances, he should not have restore the matter back to the file of the A.O. The decision relied upon by the Learned Counsel for the Assessee clearly support the submissions of the assessee. 7. As regards the interest earned of ₹ 1,87,488 and TDS deducted by SBI, the Pr. CIT was of the view that this claim has been made against PAN of the Assessee-Firm. However, Learned Counsel for the Assessee referred to PB-14 which is Profit and Loss Account for assessment year under appeal, in which assessee did not make any such claim. Further, such issue was not raised in the show cause notice under section 263 of the I.T. Act. Therefore, such issue cannot be taken in adverse against the assessee in the impugned order under section 263 of the I.T. Act. 8. Considering the totality of the facts and circumstances in the light of above discussion, we are of the view that the assessment order passed by the A.O. is in accordance with Law in which no infirmity have been pointed-out so as to invoke jurisdiction under section 263 of the I.T. Act. The assessment order is therefore, not erroneous in so far as prejudicial to the interests of the Revenue. We, accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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