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Amarshiv Construction Pvt.Ltd. 14, Atul Park Society Kareligaug Baroda-390 018 ACIT Circl-1(1) Baroda
January, 07th 2014
         
         IN THE INCOME TAX APPELLATE TRIBUNAL
       AHMEDABAD BENCH " C " BENCH, AHMEDABAD

  
BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And
         SHRI KUL BHARAT, JUDICIAL MEMBER

Sl.        ITA No(s)        Assessment           Appeal(s) by
No(s)                        Year(s)      Appellant  vs. Respondent
                                          Appellant          Respondent
  1.     3409/Ahd/2010       2000-01         Amarshiv          ACIT
                                            Construction     Circl-1(1)
                                              Pvt.Ltd.        Baroda
                                            14, Atul Park
                                               Society
                                             Kareligaug
                                           Baroda-390 018
                                           PAN: AACCA
                                                3235E
  2.     3410/Ahd/2010       2003-04           Assessee       Revenue
  3.     3411/Ahd/2010       2007-08           Assessee       Revenue

                 Assessee by :             Shri M.K.Patel, A.R.
                 Revenue by :             Shri J.P.Jhangid, Sr.D.R.

               / Date of Hearing       : 27/12/2013
               /Date of Pronouncement : 03/01/2014


                              / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

        Out of these three appeals by the assessee, one appeal is against
the confirmation of penalty and rest of the two appeals are against the
confirmation of disallowance/addition pertaining to different Assessment
Years (AYs) 2000-01, 2003-04 & 2007-08 and are directed against the
orders of the Ld.Commissioner of Income Tax(Appeals)-I, Baroda
                                          ITA No.3409, 3410 & 3411/Ahd/2010
                              Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                     Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                      -2-

(`CIT(A)' for short) dated 01/10/2010, 01/10/2010 & 03/09/2010
respectively.

2.     First, we take up the ITA No.3409/Ahd/2010 for AY 2000-01, wherein
the following grounds have been raised by the assessee:

       1.   The Learend CIT(Appeals) erred in confirming the penalty
            u/s.271(1)(c) of Rs.1,10,000/- on disallowance of foreign travel
            expenses amounting to Rs.2,73,793/- incurred by the company for
            its Director Shri Ashok M. Patel.
       2.   The appellant company craves, leave to add, alter or amend any
            of the grounds mentioned above.





2.1.   At the outset, ld.counsel for the assessee Shri Mehul Patel in all fairness
submitted that penalty was levied on disallowance of foreign travel expenses
and this disallowance has been confirmed till the stage of Hon'ble ITAT. He
has placed on record the order of Hon'ble ITAT "D" Bench Ahmedabad
rendered in assessee's own case in ITA No.1685/Ahd/2007 pertaining to the
AY 2000-01, dated 01/02/2008. We find that the Hon'ble Tribunal in ITA
No1685/Ahd/2007 has held as under:-

       "5. The next issue is as regards to confirmation of disallowance out of
       foreign travel expenses amounting to Rs.2,73,993/-. After hearing rival
       contentions, it is noticed that the assessee has not produced any
       document to prove foreign travel expenses and no explanation whatever
       is submitted before the lower authorities and in the absence of any
       details or any proof the lower authorities have added foreign travel
       expenses claimed by the assessee. Even before us the assessee could
       not adduce any evidence in his support.

       6. In view of the facts and circumstances, we fairly feel that the
       disallowance made by the Assessing Officer and confirmed by the
       CIT(A) be upheld. Accordingly, this issue of the appeal of assessee is
       dismissed."
                                          ITA No.3409, 3410 & 3411/Ahd/2010
                              Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                     Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                      -3-

2.2.    Since the assessee could not furnish any material evidence in support of
its claim for expenditure of foreign travel despite having been given sufficient
opportunity, therefore, we do not find any infirmity in the order of ld.CIT(A),
the same is hereby upheld. Thus, grounds raised in the appeal are hereby
rejected.

3.   In the result, Assessee's appeal in ITA No.3409/Ahd/2010 for
AY 2000-01 is dismissed.


4.      Now, we take up the ITA No.3410/Ahd/2010 for AY 2003-04, wherein
following grounds have been raised by the assessee:


        1. The Learned CIT(Appeals) erred in holding that the retention
           money of Rs.30,80,101/- had accrued to the appellant company
           during the previous year relevant to Assessment Year 2003-04.
        2. The Learned CIT(Appeals) further erred in confirming the
           addition of Rs.30,80,101/- made on account of rejection of the
           claim of the appellant company for deduction of retention
           money.
        3. The Learned CIT(Appeals) erred in confirming the
           disallowance of Rs.1,09,715/- being voluntary retirement
           expenses claimed by the appellant company.
        4. The Learned CIT(Appeals) erred in confirming the
           disallowance of Rs.90,000/- being compensation expenses paid
           to Employees.
        5. The appellant company craves, leave to add, alter or amend
           any of the grounds mentioned above.

4.1.    Briefly stated facts are that the case of the assessee was picked up
for scrutiny assessment and the assessment u/s.143(3) of the Income Tax
Act,1961 (hereinafter referred to as "the Act") was framed vide order
dated       28/03/2006,   thereby    the    Assessing    Officer(AO)      made
disallowance/addition in respect of retention money amounting to
                                        ITA No.3409, 3410 & 3411/Ahd/2010
                            Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                   Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                    -4-

Rs.30,80,101/-, prior period expenses amounting to Rs.22,270/-, VRS
expenses amounting to Rs.1,09,715/- and compensation amounting to
Rs.90,000/-.     Against this, the assessee filed an appeal before the
ld.CIT(A), who after considering the submissions partly allowed the
appeal, thereby the ld.CIT(A) deleted the disallowance of Rs.22,270/-
and rest of the disallowances were confirmed by the ld.CIT(A). Now, the
assessee is in appeal before this Tribunal.


5.     Ground Nos.1 & 2 are inter-connected.        The ld.counsel for the
assessee submitted that the disallowance was made in respect of retention
money. In all fairness, he submitted that this issue has been decided
against the assessee in earlier years by the Hon'ble ITAT.


5.1.   The ld.Sr.DR supported the orders of the authorities below.


6.     We have heard both the sides, perused the material available on
record and gone through the orders of the authorities below. We find that
the ld.CIT(A) has confirmed the disallowance on the basis that this issue
has already been decided by the Tribunal against the assessee.      We find
that the Hon'ble Tribunal in ITA No.1685/Ahd/2007 for AY 2000-
01(supra), has decided this issue against the assessee. In view of this,
grounds raised by the assessee are hereby rejected.


7.     Ground No.3 is against the confirmation of disallowance of
Rs.1,09,715/- being voluntary retirement expenses claimed by the
assessee-company.
                                       ITA No.3409, 3410 & 3411/Ahd/2010
                           Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                  Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                   -5-

7.1.   The ld.counsel for the assessee submitted that the amount was
spent on the voluntary retirement.       However, no evidence could be
produced before the authorities below. We find that the AO has made
disallowance on the basis that the assessee-company could not furnish
any material evidence in support of its claim. This disallowance was also
confirmed by the ld.CIT(A). Even before this Tribunal also, the assessee
has not placed any supporting evidence for its claim. Under these
circumstances, we do not find any infirmity in the order of the ld.CIT(A),
the same is hereby upheld. Therefore, this ground of assessee's appeal is
rejected.





8.     Ground No.4 is against confirming disallowance of Rs.90,000/-
being compensation expenses paid to employees.


8.1.   The ld.counsel for the assessee submitted that the amount was paid
to its employees by way of compensation. However, no evidence could
be produced before the authorities below. We find that the AO has made
disallowance on the basis that the assessee-company could not furnish
any material evidence in support of its claim. This disallowance was also
confirmed by the ld.CIT(A). Even before this Tribunal also, the assessee
has not placed any supporting evidence for its claim.         Under these
circumstances, we do not find any infirmity in the order of the ld.CIT(A),
the same is hereby upheld. Therefore, this ground of assessee's appeal is
also rejected.
                                      ITA No.3409, 3410 & 3411/Ahd/2010
                          Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                 Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                  -6-

9.    In the result, assessee's appeal in ITA Nod.3410/Ahd/2010 for AY
2003-04 is dismissed.


10.   Last, we take up the ITA No.3411/Ahd/2010 for AY 2007-08,
wherein following grounds have been raised by the assessee:


      1. The Learned CIT(Appeals) erred in holding that the retention
         money of Rs.70,14,322/- had accrued to the appellant company
         during the previous year relevant to Assessment Year 2007-08.
      2. The Learned CIT(Appeals) further erred in confirming the
         addition of Rs.70,14,322/- made on account of rejection of the
         claim of the appellant company for deduction of retention
         money.
      3. The Learned CIT(Appeals) erred in not giving directions to
         exclude these amounts offered for tax by the appellant
         company in preceding year.
      4. The Learned CIT(Appeals) erred in confirming the
         disallowance of Rs.10,000/- being voluntary retirement
         expenses claimed by the appellant company.
      5. The appellant company craves, leave to add, alter or amend
         any of the grounds mentioned above.

10.1. Since the facts and circumstances (except for ground No.3) are
similar to the facts and circumstances in assessee's own appeal for AY
2003-04, i.e. ITA No.3410/Ahd/2010(supra), we confirm the orders of
the authorities below for the same reasoning stated in assessee's own
appeal and dismiss all other grounds (except ground No.3) of assessee's
appeal.

10.2. As regards ground No.3, the ld.counsel for the assessee submitted
that the assessee ought to have given the credit for the amount which has
                                            ITA No.3409, 3410 & 3411/Ahd/2010
                                Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                       Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                        -7-

been offered for tax by the assessee-company. The ld.Sr.DR has no
objection if this issue is restored back to the file of AO for verification.


11.     We have heard both the sides, perused the material available on
record and gone through the orders of the authorities below.                  After
considering all aspects of the matter, we are of the view that this issue is
to be restored back to the file of AO for verification of the claim of the
assessee. The AO is hereby directed to verify the claim of the assessee
and decide this issue in accordance with law. Thus, this ground of
assessee's appeal is allowed but for statistical purposes.


12.     In the combined result, assessee's appeals in ITA Nos.3409 &
3410/Ahd/2010 for AYs 2000-01 & 2003-04 respectively are
dismissed, whereas ITA No.3411/Ahd/2010 for AY 2007-08 is partly
allowed for statistical purposes only.
      Order pronounced in Court on the date mentioned hereinabove at caption page


                Sd/-                                              Sd/-
           (  )                                               (  )
                                                             Û 
    ( ANIL CHATURVEDI )                                  ( KUL BHARAT )
   ACCOUNTANT MEMBER                                    JUDICIAL MEMBER

Ahmedabad;             Dated     3/ 1 /2014

.., .../T.C. NAIR, Sr. PS
                                                     ITA No.3409, 3410 & 3411/Ahd/2010
                                         Amarshiv Construction Pvt.Ltd. Baroda vs. ACIT
                                                Asst.Years ­ 2000-01, 2003-04 & 2007-08
                                                   -8-

    /
      Copy of the Order forwarded to :
1.          / The Appellant
2.         × / The Respondent.
3.            / Concerned CIT
4.          () / The CIT(A)-
5.          ,   ,  / DR, ITAT, Ahmedabad

6.         [  / Guard file.
                                                                                     / BY ORDER,

                     ×  //True Copy//

                                                                /  (Dy./Asstt.Registrar)
                                                                /
                                                        ,  / ITAT, Ahmedabad
                                                        ,
      1.    Date of dictation .. 27.12.13 (dictation-pad 10 pages attached at the end of this File)
      2.    Date on which the typed draft is placed before the Dictating Member ......31.12.13
      3.    Date on which the approved draft comes to the Sr.P.S./P.S.................
      4.    Date on which the fair order is placed before the Dictating Member for
            pronouncement......
      5.    Date on which fair order placed before Other Member............
      6.    Date on which the fair order comes back to the Sr.P.S./P.S.......3.1.14
      7.    Date on which the file goes to the Bench Clerk.....................3.1.14
      8.    Date on which the file goes to the Head Clerk..........................................
      9.    The date on which the file goes to the Assistant Registrar for signature
            on the order..........................
     10.    Date of Despatch of the Order..................

 
 
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