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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
O R D E R
PER PAVAN KUMAR GADALE, JM:
The assessee has filed the appeal against the order of the Commissioner of Income Tax (Appeals)-18, Mumbai passed u/s 154 and 250 of the Act. The assessee has raised following grounds of appeal:
1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming the order u/s.154 of the income tax act dated 20.02.2020, by saying
M/s Lotus Enterprises., Mumbai. - 2 - that there is no apparent mistake from records as far as TDS credits were concerned.
2. On the facts and circumstances of the case and in law, the learned CIT(A) erred in observing that, it is not ascertainable from records, that the provisions of section 199 r.w.Rule 37BA have been complied, ignoring the fact, that these were TDS on advances. received from customers and it was verifiable from the 'list of advances received' submitted during the scrutiny assessment proceedings.
3. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred by not following the principle laid down in article 265 of the constitution, whereby only the correct taxes have to be collected even if the assessee had made a mistake. 4.On the facts and circumstances of the case and in law, the learned CIT(A) erred in not appreciating the fact, that there was a breach of section 205 of the act, when the Assessing Officer raised the demand of Rs. 18,10,691/-.
The appellant craves leave to add, amend, alter, change or modify the above grounds of appeal.
The brief facts of the case that the assessee company is engaged in the business of construction works and has filed the return of income electronically for the A.Y 2017-18 on 31.03.2018 disclosing a total income of Rs. 5,65,21,830/- and the return of income processed u/s 143(1) of the Act. Subsequently, the case was selected for scrutiny and notice u/s 143(2) and 142(1) of the Act was issued through ITBA system.
M/s Lotus Enterprises., Mumbai. - 3 - In compliance to the notice, the assessee has filed the information on various dates in support of the return of income. The Assessing Officer (AO) has perused the information and the submissions filed by the assessee and determined the total income of Rs.5,65,21,830/- and passed the order u/s 143(3) of the Act dated 16.12.2019.
Subsequently the assessee has filed the rectification application u/s 154 of the Act on 17.12.2019 and 19.12.2019 explaining that the TDS credit of Rs. 29,49,000/- was granted as against RS.39,14,000/- reflected in 26AS statement. Similarly self assessment tax paid of Rs. 2,04,33,697/- was not considered as deduction from the tax liability. The AO on verification of the facts and information found that the submissions of the assessee are partly correct and observed that the assessee has filed the return of income claiming the TDS credit of Rs.29,49,000/- and the same was given credit in the order u/s 143(3) of the Act. Further, the AO has considered the fact that the assessee has paid self assessment tax and granted credit of Rs.2,04,33,697/- and passed the rectification
M/s Lotus Enterprises., Mumbai. - 4 - order u/s 154 r.w.s 143(3) of the Act dated 20.02.2020.
Aggrieved by the rectification order, the assessee has filed an appeal with the CIT(A). Whereas the CIT(A) considered the grounds of appeals, submissions of the assessee in respect of short credit of TDS and has confirmed the action of the AO and dismissed the assessee appeal. Aggrieved by the order of the CIT(A) the assessee has filed an appeal with the Honble Tribunal.
5. At the time of hearing, the Ld. AR submitted that the CIT(A) has erred in confirming the order u/s 154 of the Act where the TDS credit was not granted by the AO and was confirmed. The AO has not considered the fact that the assessee is a builder and is engaged in the construction of flats. Whereas TDS was deducted by the flat holders on the advance payments made to the asssessee as per 194IA of the Act and is verifiable from list of advances received reflected in the financial statements and prayed for allowing the appeal. Contra, the Ld. DR supported the order of the CIT(A).
M/s Lotus Enterprises., Mumbai. - 5 -
We heard the rival submissions and perused the material on record. The sole matrix of the disputed issue as envisaged by the Ld.AR that in the rectification petition the AO has not granted the TDS credit which was deducted on advances paid by the flat purchasers/ Customers U/sec194IA of the Act and reflected in the Form no. 26AS. Whereas the AO has granted credit to the extent of part TDS and remaining Rs.9,65,000/- was denied and the assessee has made the claim as per Form 26AS but was denied. The Ld. AR also emphasized that the TDS credit has to be granted irrespective of the claim made in the return of income. Further, the Ld.AR explained that the assssessee has complied the provisions u/s 199 r.w.Rule 37BA and the CIT(A) has ignored theses facts that the TDS u/s 194IA of the Act was made by the customers/ flat purchasers on the advances paid which are verifiable We considering the facts and circumstances and evidences filed in the course of hearing find that the Ld.AR has demonstrated the statement of the TDS credit in the Form 26AS. We found that these facts are not emanating or discussed in the course of scrutiny proceedings. Accordingly, to M/s Lotus Enterprises., Mumbai. - 6 - meet the ends of justice, we restore this disputed issue to the file of the Assessing officer for limited purpose to verify the fact of list of advances from flat purchasers and TDS deduction and grant TDS credit as reflected in the Form no.26AS and allow the grounds of appeal for statistical purpose.
In the result, the appeal filed by the assessee is allowed for statistical purposes.