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Income Tax Appellate Tribunal, DELHI ‘SMC’ BENCH,
Before: SHRI B.P. JAIN
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 Vs. ITO C/o. N.C.Garg, CA Ward-1 Mal Godam Road Rohtak Rohtak PAN : AADFD4239K [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.
The assessee has raised following additional grounds of appeal:
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.
That the learned commissioner of Income Tax (Appeals) has failed to appreciate that mere fact that allotment of contract does not bring about any liability to taxability the income from contract in the hands of entity executing the contract and on the contrary once a contract has been executed by partnership firm under the deed of partnership then such income has to be assessed in the hands of firm.
That the finding that “it is a case of sub-contract and whenever there is a sub-contract, the contractor giving the contracts has to once again deduct tax which has not been done by the partner of the firm Sh. Dayanand, when the contract in question have been transferred to the firm and as such the only course of action as per the law is to file the return of income of Sh. Dayanand and claimed the refund” is factually incorrect, legally misconceived and untenable.”
Apart the above additional grounds, the assessee has raised following grounds of appeal:
“1. That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in upholding the denial of credit of TDS of Rs. 13,01,041/- on the income declared and assessed in the hands of the appellant firm on the basis that
TDS has not been deducted in the name of appellant but in the individual capacity of the partner of the appellant.
1.1 That the reasoning the given by the learned Commissioner of Income Tax (Appeals) that ‘if any refund is to be claimed by the appellant against this TDS, then only course of action as per law is to file the return of income Sh. Dayanand and claim the refund’, is wholly erroneous, misconceived and untenable.
1.2 That various adverse findings recorded in the orders of authorities below are factually incorrect, legally misconceived, contrary to record and thus untenable.”
In brief, the facts of the case are that the appellant is a firm engaged in the business of civil construction. It filed its return declaring income of Rs. 7,90,480/- on 26.09.2012 with a TDS of Rs. 13,01,041/-. The case was selected for scrutiny on the basis of the mismatch 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 Rs.7,90,480/- with the TDS of Rs.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 Rs.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 Rs.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 in the form AS 26 of the firm. The AO in his order after seeking the directions of the Addl. Commissioner of Income Tax under section 144A has disallowed the credit of the TDS deducted in the name of the partner to the firm. The present appeal is against this action of the AO. Besides this the AO in his order has made an addition of Rs.2,41,563/- as the interest received by the appellant op account of income tax refund, and not disclosed in the return of income which is also the subject matter of this appeal.
The ld. CIT(A) confirmed the action of the Assessing Officer.
I have considered the rival arguments made by both the sides, perused the orders of the A.O and the ld. CIT(A) and the paper book filed on behalf of the assessee. Ground 1 & 1.2 challenge the denial of credit of TDS of Rs. 13,01,041/- on the income declared and assessed in the hands of the appellant firm on the basis that TDS has not been deducted in the name of the appellant but in the individual capacity of the partner of the appellant. Also, additional grounds have been raised to include the income declared from contract works in the return of income furnished by the appellant for the instant assessment year. At the outset contract has been assigned to the assessee firm by the partner, which fact is also accepted by the leaned CIT (A) in his order at page 8, wherein he held as under: “ii) Whenever a contract is given to another party, by the party which has obtained the contract (sub-contract), provisions of TDS kick in once again. That is to say that whenever there is a sub-contract, the contractor giving the contracts has to once again deduct tax. Apparently this has not been done by the partner of the firm Sh. Dayanand, when the contract in question have been transferred to the firm.” 7. After acceptance of the fact that Sh. Dayanand has transferred the contract to firm learned CIT (A) ought ,to have directed the assessment of the income in the hands of the firm and also allowed
the credit of TDS. Further, the findings of the learned CIT(A) that whenever there is a sub-contract, the contractor giving the contracts has to once again deduct tax which is incorrect and against the principles of law as the appellant firm cannot be considered as the sub-contractor of Sh. Dayanand. In the case of Hindustan Ratna JV vs. ITO reported in [2014] 42 taxmann.com 107 (Hyderabad-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 Rs.1,11,09,23,018/- made by the Assessing Officer by invoking the provisions of Section 40(a)(ia) of the Act.
It was submitted by the ld. counsel for the assessee that once the contract is obtained in the name of individual but executed by partnership firm under the deed of partnership then such income has to be assessed in the hands of the firm. In the case of ITO vs. Manikarnika Devi Singh reported in 98 Taxman 32 (Jab)(Mag),(page 115 of paper book) it has been held as under:
“Once the revenue had itself accepted that the contract work was executed by the firm and the income was earned by the firm, the only question remained whether the firm be assessed as registered firm or unregistered firm. It was not in dispute that the assessee made all the necessary compliance required for getting the registration as per section 185. In K.D. Kamath & CO. v. CIT [1971] 82 ITR 680 the Supreme Court held that the fact that the exclusive power and control, by agreement of the parties, is vested in one partner, and the further circumstances that only one partner can operate the bank accounts or borrow on behalf of the firm, is not destructive of the theory of partnership provided two essential conditions are satisfied, namely (i) that there should be an agreement to share profits and losses of the business of the firm, and (ii) that the business must be carried on by all the partners or any of them acting for all. The above decision was squarely applicable in the case of the assessee as in the instant case also there was an agreement to share the profit and loss of the business of the firm. The business was carried on by all the partners, though the contract work was in the name of one of the
partners. Therefore, the Dy. Commissioner (Appeals) was fully justified in allowing registration to the assessee-firm”
Above findings are supported by the Circular No. 7/2016 issued by CBDT placed at page 96 -97 of the Paper Book. Denial of credit of TDS of Rs. 13,01,041/- is otherwise against the principle of consistency. In another identical case of M/s Ranbir Singh having PAN No. AAJFR9966M the learned Assessing Officer allowed and issued the refund in the status of the firm for the TDS/TCS deducted in the name of one of partner namely Sh. Ranbir Singh . A copy of the order of assessment dated 10.12.2010 in the case of M/s Ranbir Singh having PAN No. AAJFR9966M is placed at pages 45-47 of paper book alongwith copy 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.”
Reliance in support of the principle of consistency was placed on the following judgments:
358ITR 295 (SC) CIT vs. Excel Industries Ltd. i) 308ITR 161 (SC) CIT vs. J. K. Charitable Trust ii) 266ITR 99 (SC) CIT v. Berger Paints iii) 394ITR 449 (SC) Godrej & Boyce Manufacturing company Ltd. vs. iv) 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.
ITA No. 7698/M/2010 A.Y. 2007-08SMC Ambika JV v. ITO i) (pages 58-65 of Paper Book) 53 SOT 220 (Hyd) MEIL Sew Maytas BHEL (JV) v. ITO ii) (pages 66-72 of Paper Book) ITA No. 44/2013 (Bom) CIT v. SMSL-UANRCL (JV) iii) (pages 85-89 of Paper Book) 374 ITR 35 (Del) CIT v. Oriental Structural Engineers (P)Ltd. iv) (pages 90-95 of Paper Book)
39 DTR 217 (Del) CIT vs. OrientalStructural Engineers(P) Ltd. v) (pages 55-57 of Paper Book) 166 TTJ 612 (Hyd.) M/s Hindustan Ratna JV vs.ITO vi) (pages 73-84 of Paper Book) Circular No.7/2016 issued by CBDT (pages48 SOT 178 vii) (Visakhapatnam) ITO vs. UAN Raju Construction
31 DTR 49 (HP) CIT vs. Ambuja Daria Kashlog Mangu Transport Coop Society 48 DTR 130(HP) CIT vs. Sirmour Truck Operators Union viii) 240 CTR 325 (P&H) CIT vs. Grewal Brothers ix) 248 ITR 339 (AAR) Van Oord ACZ BV x) 124 ITR 192 (Bom) CIT vs. British Drug Houses (India)P. Ltd xi) ITA No(s) 1280/PN/2006 (A.Y. 2003-04), 60/PN/2009 (A.Y. xii) 2005-06), 177 and 178/PN/2008 (A.Y. 2002-03 and 2004-05 ITO vs. Rajdeep & PMCC Infrastructure, ITA No. 65/PN/2011 (AY 2007-08) M/s Gammon Progressive- xiii) JV 55 DTR 417 (Cal) Panna Lai Kejrilal vs. CIT 314 ITR 343 (AAR) Hyosung Corporation xiv) 210 Taxman 49 (Mad)(Mag) Chennai Port Trust v. ITO xv)
Once income is required to be assessed, TDS credit has to be allowed irrespective of the fact that the TDS is deducted in the name of the another person.
357 ITR 396 (AP) CIT vs. Bhooratnam (pages 98-103 of Paper Book) i) ITA no. 2417/Kol/2013 Mr. Parmanand Tiwari vs. ITO (pages 104-108 ii) of Paper Book) ITA No. 99/Hyd/2010 ITO vs. M/s Limak Devi Singh (pages 109-144 of Paper Book) iii)
Any income could not be treated to be taxable just because tax at source has been deducted on it. i) 73 taxmann.com 166 (Mum) ABB Switzerland Ltd. Vs. ADIT(IT)(page 116-127 of Paper Book)
In any case, no addition can be made on the basis of Form 26 AS AIR information as has been held in the following judgments:
ITA No. 4679/D/2012 Assessment Year 2009-10 dated i) 31.3.2015 ITO v. Sh. Basant Kumar ITA No. 253/Agra/2013 dated 27.6.2014 ITO v DevendraNath ii) Dwivedi ITA No. 5125/Mum/2013 dated 10.4.2015 M/s Kroner Investments Ltd vs DCIT ITA No. 735/D/2015 dated 2.8.2016 Vikas Yadav v. ITO iii) 58 SOT 135 (Cut) (Uro) Gobindpada Bhanja Chowdhury v. ITO iv) 36 taxmann.com 371 (Guj) Vaghibhai v. Bishnoi v. ITO v) 352 ITR 273 (Del) Court on its Own Motion v. CIT vi) 365 ITR 143 (All) Rakes Kumar Gupta v. UOI vii) ITANo. 1331/D/2015 Praveen Kumar Jain v ITO dated viii) 22.1.2015 ITA No. 3534/D/2014(Del Tri) Munni Devi vs ITO68 STO ix) 197 (Del) Bir Bahadur Singh Sijawali 57 ITR 532 (SC) Parimisetti Setharamamma vs. CIT x) 159 ITD 329 (Asr) Sh. Amrik Singh vs ITO xi) 108 ITD 115(Agra) Saraf Gramodyog Sansthan vs ITO xii) ITANo. 3873/D/2016 xiii) Assessment Year 2009-10 dated 23.01.2017 Zahid xiv) 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.
In the result, the appeal of the assessee is allowed. The order is pronounced in the open court on 16 .10.2017.
Sd/- [B.P. JAIN] ACCOUNTANT MEMBER Dated: 16th October, 2017 VL/ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi