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Income Tax Appellate Tribunal, MUMBAI “E” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JUDICIAL & SHRI RAJESH KUMAR.
These cross appeals have been filed by Revenue and assessee against the order of Commissioner of Income-Tax (Appeals)-35, Mumbai, dated 04.03.2011 for A.Y. 2007-08.
In Revenue has filed the appeal on the following grounds:
“1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition of Rs.1,29,05,597/- made by the A.O. on account of non-deduction of TDS on various expenses without appreciating the fact that the receipts of the assessee are in the nature of contract receipts and the payments made by the assessee are in the nature of contract receipts and the payments made by the assessee are in the nature of sub- contract charges.
2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition of Rs.1,29,05,597/- made by the A.O. on account of non-deduction of TDS on various expenses without appreciating the fact that the assessee failed to provide the documentary evidence for the expenses claimed in the profit & loss account.”
In this appeal, although Revenue has raised multiple grounds of appeal
, but at the time of hearing, the grievance of the Revenue has been confined to ground no.1 and other grounds have not been pressed. Ground no.1 reflects a solitary grievance of the Revenue.
3. Briefly put, the relevant facts are that the assessee is an & 3246/Mum/11 A.Y. 07-08 [DCIT Vs. Sanjay R. Vishwakarma] Page 3 individual engaged in the business of civil construction on contract basis under the name and style of M/s S.V. Enterprises. The Assessing officer completed the assessment U/s 143 (3) of the Income Tax Act and added Rs. 1,29,05,597/- U/s 40(a) (ia) of the Act for failure on the part of the appellant to deduct tax at source in respect of certain payments holding that receipts of the assessee are in the nature of contract receipts and the payments made by the assessee are in the nature of sub-contract charges. Aggrieved from the order of the Assessing Officer the assessee has filed an appeal before CIT (A) Mumbai, who has deleted the addition. Not being satisfied with the order of the CIT(A), the Revenue is in appeal before us.
3.1 We have heard both the parties, carefully considered the rival submissions and pursed the material available on record. The Ld. Departmental Representative for the revenue has primarily reiterated the stand of the Assessing Officer which we have already noted in earlier para and is not being repeated for the sake of brevity. On the other hand, the Authorised Representative for the assessee took us through Para No.8.2 of order of CIT (A) who held that provisions of section 194C (1) are applicable only from 01.06.2007 and not applicable in this year as the appellant is being an individual. Since, the provisions of section 194C (1) is not applicable to the assessee (Assessee being an Individual) for A.Y. 2007-08 there would not be any question to deduct TDS. The Ld. AR also relied upon CIT Vs. Prashant H Shah (Tax Appeal No. 1591 of 2011 (Guj.HC) wherein it has been held that prior to amendment w.e.f.9 06- & 3246/Mum/11 A.Y. 07-08 [DCIT Vs. Sanjay R. Vishwakarma] Page 4 207 category of individual, HUF or AOP was not included under section 194C(1) of the Act, hence we do not hesitate to uphold the order of the Ld. CIT (A).
3.2 In the result, appeal of Revenue is dismissed.
In assessee has requested the Bench not to press any grounds of appeal. The assessee has expressed his desire to withdraw the said appeal, therefore, the appeal of assessee is hereby dismissed as withdrawn.
In the result, appeal of Revenue is dismissed and appeal of assessee is dismissed as withdrawn.
Pronounced in the open Court on this the 29th day of June, 2016.
Sd/- Sd/- (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: Dated 29/06/2016 True Copy आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार, आयकर अपील�य अ�धकरण, मुंबई ।