DSG CORPORATION PVT. LTD. (FORMERLY KNOWN AS M/S.D.S.GUPTA CONSTRUCTION PVT. LTD.),MUMBAI vs. DCIT, CC -7(2), MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

2. On the facts and circumstances of the appellant’s case and in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the action of Ld. AO in making rejecting the claim of TDS Credit amounting to Rs.26,70,214/- as per the impugned order or otherwise.

3. The appellant crave leaves to add, amend, alter, modify and or withdraw any of the above grounds of appeal on or before the date of hearing.”

4. The brief facts of the case are that the assessee filed its return of income on 29.09.2012 declaring total income to the tune of Rs.84,14,883/-. The case was selected for scrutiny under CASS. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee company was engaged in the business of Construction. In the year under consideration, the assessee company had showed its income from business & profession. At the time of assessment proceeding, the assessee was asked to furnish the AIR reconciliation statement, the assessee submitted the same. On appraisal of the said details, it was seen that the assessee has claimed the TDS on advances in respect of the following cases: - Sr. No. Name TDS Amount claimed 1 Aditya Birla Science & tech. Co. Ltd. 4,477/- 2 Bhawar Interior 2,177/- 3 DB Mall-Bhopal 37,952/- 4 Genext Hardware and Parks Pvt. Ltd. 6,42,448/- 5 Goan Hotel and Clubs Pvt. Ltd. 1,00,886/- 6 K raheja Universal 1,172/- 7 Lake Plaza-The park hotel 1,77,072/- 8 Lodha Developers Pvt. Ltd. 1,829/- 9 Lok Priya Buildwell Pvt. Ltd. 70,000/- 10 Nirlon Ltd Phase II 562/- 11 Oberoi Construction Ltd. 19,778/- 12 Orbit Corporation 4,11,936/- 13 Prestige estate projects 5,26,847/- 14 Raghuveer Urban infrastructure 53,540/- 15 Supreme Infrastructure India Ltd. 1,05,080/- 16 Tata memorial Centre 41,552/- 17 Phonix Mill Ltd. 4,826/- 18 The Bombay Dyeing & Mfg co Ltd. 15,553/- 19 Century textile & Industries Ltd. 3,48,470/- 20 Mandke Foundation 18,000/- 21 Volkswagen India Pvt. Ltd. 76,057/- Total 26,70,214/- 3 ITA Nso.3480 & 3481/M/2018 A.Ys.2012-13 & 2013-14 5. The gross income credited in respect of the TDS claimed was not found in consonance with the reconciliation statement. The assessee was asked to furnish the details of gross amount credited but the supporting evidence was not filed, therefore, the claim of TDS in sum of Rs.26,70,214/- was declined and added to the income of the assessee. The total income of the assessee was assessed to the tune of Rs.84,14,880/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assessee, therefore, the assessee filed the present appeal before us. ISSUE Nos. 1 & 2 6. Under these issues the assessee has challenged the order on the ground of that the CIT(A) has been passed the order against exparte and the CIT(A) has wrongly rejected the claim of TDS in sum of Rs.26,70,214/-. The copy of order dated 26.09.2017 produced in which we found that the order was passed by the CIT(A) against exparte. However, sufficient opportunity was given to the assessee on dated 25.09.2017 but the assessee failed to substantiate his claim. The assessee only requested one more opportunity to substantiate his claim in the interest of justice. One more opportunity is awarded to the assessee to substantiate his claim before the AO in the interest of justice. Accordingly, we set aside the finding of the CIT(A) and direct the AO to verify the claim of the TDS raised by assessee afresh by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, we decide this issue in favour of the assessee against the revenue.

2. On the facts and circumstances of the appellant’s case and in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the action of Ld. AO in disallowing a sum of Rs.11,13,812/- on account of foreign travelling expenses as per the impugned order or otherwise.

3. On the facts and circumstances of the appellant’s case and in law the Ld. Commissioner of Income Tax (Appeals) erred in confirming the action of Ld. AO in disallowing a sum of Rs.20,839/- on account of alleged excess deprecation claimed on additions to fixed assets as per the impugned order or otherwise.

4. The appellant crave leaves to add, amend, alter, modify and or withdraw any of the above grounds of appeal on or before the date of hearing.

9. The brief facts of the case are that the assessee filed its return of income on 29.09.2013 declaring total income to the tune of Rs.1,22,73,530/- for the A.Y.2013-14. The case was selected for scrutiny under CASS. Notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. Thereafter, the assessment of the assessee was completed by assessing the total income in sum of Rs.1,81,74,310/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who partly allowed the claim of the assessee but the assessee was not satisfied on the ground mentioned above, therefore, filed the present appeal before us. ISSUE NO.1

10. Under this issue the assessee has challenged the disallowance of claim of Rs.1,69,922/- on account of expenses claimed on sale of flat. The Ld. Representative of the assessee has argued that the assessee claimed the stationery and Xerox Expenses for registration of flat etc. in sum of 5 ITA Nso.3480 & 3481/M/2018 A.Ys.2012-13 & 2013-14 Rs.1,69,922/- which was quite justifiable but the AO has wrongly declined the claim of the assessee and was wrongly confirmed by CIT(A), therefore, the finding of the CIT(A) is not justifiable, hence, is liable to be set aside. However, on the other hand, the Ld. Representative of the revenue has strongly relied upon the order passed by the CIT(A) in question. The assessee has declared the Short Term Capital Gain on sale of flat amounting of Rs.45,52,925/-. The assessee claimed the sundry expenses likes stationery, Xerox, Stamp Paper and various miscellaneous expenses incurred in relation to the document process and registration process. However, the assessee nowhere submitted any evidence in this regard. The CIT(A) has also confirmed the finding of the AO on account of on this fact that the assessee failed to produce the evidence in support of the claim. Anyhow, the transaction is not in dispute. The assessee received the short term capital gain on sale of flat of Rs.45,52,925/-. The AO also admitted the claim of the assessee in connection with the brokerage expenses in sum of Rs.1,95,463/- and transfer charges of Rs.2,48,878/-. It is only the miscellaneous expenses for which the assessee failed to file the details and evidence in this regard. No doubt, the assessee may have incurred some miscellaneous charges. Interest of justice, we found its justifiable to reject the claim of the assessee to the extent of 20% of the amount claimed i.e. 1,69,922/-. Accordingly, we decide this issue in favour of the assessee against the revenue. ISSUE NO.2 11. Issue no. 2 is in connection with the disallowance of claim in sum of Rs.11,13,812/- on account of foreign travelling expenses. The assessee debited an amount of Rs.18,85,272/- on account of Travelling expenses. The AO found that the director expended an amount of Rs.11,13,812/- on account of foreign travelling. The AO asked to prove the genuineness of