The Commissioner Of Income Tax-18, Mumbai v. M/S.international Metro Civil Contractors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 189 OF 2007 The Commissioner of Income Tax-18,Mumbai.. .........Appellant. VersusM/s.International Metro Civil Contractors. ..........Respondent. Mr. S. J. Saluja for the Appellant. Mr. Pardiwala with Ms. Baski Sharma i/by M/s. Paras Kuhad& Associates for the Respondent. CORAM :BILAL NAZKIandA. A. KUMBHAKONI, JJ. DATED : 11TH AUGUST, 2008. P.C.: The following questions have been framed for consideration: (1)Whether on the facts and circumstances of the case and in law, the Honourable Tribunal was justified in holding that there was nomistake apparent from records and that the orders u/s. 154withdrawing the wrong credit of the T.D.S. Of Rs.6,66,95,806/- forA.Y. 2002-2003 were invalid? (2)Whether on the facts and circumstances of the case and in law, the Honourable Tribunal was justified in upholding the learned CIT(A)'s order which ignored the vital fact that the Asessee had not shownany income from contract work in the P & L Account filed along with the return of income and the admission of this fact in thecomputation statement in the returns of income for the AssessingYear 2002-2003 and hence, the wrong claim of credit for T.D.S. U/s.199 of the I.T. Act, 1961? 2.We have heard the learned Counsel for the appellant and gone throughthe orders passed by the Income Tax Appellate Authority and also theTribunal. 3.The return of income was processed on 8[th] March, 2004 and the refundincluding interest under Section 244A was determined to be payable to theassessee. Thereafter, it was notice that interest u/s 244A had been calculatedexcessive by the computer amounting to Rs.1,06,712/-. The same was soughtto be rectified under Section 154 of the Income Tax Act. This alleged mistakewas never sought to be corrected subsequently, by any order, either by theAssessing Authority or by the Appellate Authority. 4.Another mistake which was sought to be corrected that the assesseehad shown income amounting to Rs.3,65,09,105/- as other incomerepresenting exchange gain interest, etc. and refund was mainly arising on TDS on contract receipts received from Delhi Metro Rail Corporation. TheDepartment found on perusal of Balance Sheet, such contract receipts hadnot been offered as income during the year although they were reflected inthe Balance Sheet to the extent of Rs.18.96 crores as per provisions ofSection 199 the Department wanted the credit of TDS relating to this amountshould not be given effect to. 5.We are convinced that such a mistake, even if had been made in theyear of assessment, could not be corrected in terms of Section 154 of theIncome Tax Act as it was not a mistake apparent from the record. May be thefirst ground for which Section 154 was invoked could have been corrected.But that was given up and what the Department wanted under Section 154was, as a matter of fact, a re-assessment. We agree with the Tribunal thatwhat the Department want ed to do under Section 154 was not correction ofany mistake apparent from the record but under the garb of correction itwanted the re-assessment. 6.In view of the above, the appeal is dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)