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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH, JM
Assessee by: Shri M. Subramanian Department by: Shri N.P.Singh सुनवाई क� तार�ख / Date of Hearing: 18.03.2016 घोषणा क� तार�ख /Date of Pronouncement: 22.06.2016 आदेश / O R D E R PER AMARJIT SINGH, JM:
This is an appeal filed by the assessee against the order dated 26.03.2013 passed by the Commissioner of Income Tax (TDS), Mumbai [hereinafter referred to as the learned “CIT(TDS)”] relevant to the A.Y.2008-09.
ITA No.4443/Mum/13 A.Y.2008-09
Heard on the point of condonation of delay. The appeal has been filed 7 days delay on account of the reason that the appellant is Government of Maharashtra and the meeting was not properly held on the date fixed and the person who was looking into the matter Mr. Ingle was on leave. The application is supported by affidavit. As sufficient reasons have been explained, moreover, the delay was not so long, therefore, we are of the view that the matter of controversy should be heard on merits; therefore, we allowed the application for the condonation of delay.
The assessee is the State Government body engaged in providing affordable housing to various economic sections in the state of Maharashtra. Survey u/s.133A of the Income Tax Act, 1961 ( in short “the Act”) was conducted in this case on 04.02.2011. Subsequently, order u/s.201(1)/201(1A) of the Act was passed on 31.03.2011, raising a demand of Rs.1,34,12,732/- on account of non deduction and short deduction of tax. A proposal u/s.263 of the Act was received in this office on 11.11.2011 from ACIT(TDS)2(1), mentioning that payments of Rs.77,66,882/- and Rs.11,04,000/- made to MMRDA on account of lease premium were not considered in the order u/s.201(1)/201(1A) dated 31.03.2011 and requested to set aside the order. Thereafter, a show cause notice dated 15.03.2012 was issued and served upon the assessee, asking it to show cause as to why the order u/s.201(1) passed by the Assessing Officer should not be set
ITA No.4443/Mum/13 A.Y.2008-09 aside as the case is prima facie erroneous and prejudicial to the interests of the revenue being the above said matters were not considered on merits. The learned CIT(TDS), Mumbai directed the Assessing Officer to verify this issue and pass the speaking order, thereafter, Assessing Officer passed the order dated 27.03.2014 which was upheld by the CIT(A) by virtue of order dated 08.05.2015. However, the assessee challenged the order dated 26.03.2013 in question passed u/s.263 of the Act.
We have heard the arguments advanced by the learned representative of the parties and have gone through the record carefully. The sole point which has been raised by the assessee is that the assessee has furnished the information to the Assessing Officer, therefore, the assessee is not at fault hence order u/s.263 of the Act dated 26.03.2013 is wrong against law and facts and is liable to set aside. However, on the other hand the learned representative of Department has strongly relied upon the order passed by the authority concerned. Here it is to be seen that the assessee disclosed all the material facts therefore, there are no sufficient reasons to invoke the provision u/.263 of the Act. The Revenue authority indicated two points to invoke the provision u/s.263 of the Act which are hereby mentioned below:-
A. lease premium of Rs.77,66,882/- and Rs.11,04,000/- paid to MMRDA on 05.12.2007.
ITA No.4443/Mum/13 A.Y.2008-09
B. explanation regarding non deduction of TDS on Service tax paid to Architect for the F.Y.2007-08 by Mumbai Building Repair & Reconstruction Board.
Assessment Order dated 31.03.2011 perused. The assessee disclosed these material facts before the Assessing Officer but the Assessing Officer did not verify the claim and passed the non-speaking order on this issue. On observing this fact that ACIT (TDS) – 2(1) intimated the matter to deal with the above mentioned payment which was not considered while passing the order u/s.201(1) and 201(1A) dated 31.03.2011. Thereafter, the concerned authority invoke the provision u/s.263 of the Act by virtue of order dated 26.03.2013. After passing the order dated 26.03.2013 in question the Assessing Officer decided this issue by virtue of order dated 27.03.2014 and thereafter, the CIT(A) has also passed the order dated 08.05.2015 by deleting the said demand on the issues in question. No doubt the demand was not raised in pursuance of order dated 26.03.2013 in question, but the order u/s.263 of the Act can be passed when an issue was not enquired and verified by Assessing Officer which should have ought to be examined in accordance with law. The case of the assessee is clearly fall u/s.263(1) explanation 2A of the Act. In brief it can be said that the provision u/s.263 of the Act can be invoked where any matter has not been enquired / examined / verified by the Assessing in accordance with law. In view of the above said discussion we are of ITA No.4443/Mum/13 A.Y.2008-09 the view that the order u/s.263 of the Act dated 26.03.2013 has been passed correctly and judiciously by the revenue authority which does not require to be interfere with at this appellate stage.
Accordingly the appeal filed by the assessee is hereby 5. dismissed.
Order pronounced in the open court on 22nd June, 2016.