TaxTMI 
TaxTMI 
2019 (5) TMI 414
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....ribunal") read as under:- "1. On the fact and in the circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs. 1,86,61,354/- made by the A.O. being 8 % of total Work In Progress(WIP) shown in books of the assessee ignoring the fact that projects undertaken by the assessee were at the stage of completion and no sale or opening/closing of WIP were shown by the assessee in P & L, A/c. for the year under consideration. 2. On the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in holding that assessee has offered income of Rs. 51,22,961/- in the A.Y. 2003-04 earned from the projects undertaken adopting Completion Contract Method (CCM) and the assessee has liberty to choose either PCM or CCM as per desire ignoring the fact that assessee had tried to evade the taxes by not showing income at all form sale of flats till the year under consideration. 3. The Ld. CIT(A) erred in law as well as on fact by applying the Hon'ble Supreme Court judgment in the case of Hyundai Heavy Industries Co. Ltd. [2007] 161 Taxman 191 (SC) and other decision in favour of assessee wherein the facts are entirely diff....
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....was deleted. The learned A.R. has placed on record a copy of the assessment order passed u/s.143(3) for assessment year 2001-2002 in which return was filed declaring Nil income and the same was assessed as such, meaning thereby that the work in progress was allowed to continue without considering it to be completion M/s.Sea Sagar Construction Co. of project. For assessment year 2003-2004, the assessee furnished return declaring income of Rs. 51,96,112. It is the case of the assessee that in this year the contract got completed and following project completion method the assessee offered income for taxation in such year. Copy of profit and loss account and balance sheet for assessment year 2003-2004 has been placed on record from where it can be seen that income has been shown to the credit side of the profit and loss account from the contract and there is no work in progress in the balance sheet for the said year. It, therefore, transpires that following the project completion method the assessee offered income in respect of these projects in assessment year 2003-2004 which has been accepted by the Revenue. Once the income is taxed in assessment year 2003-2004 on the completion of ....
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....law." 4. This is second round of litigation. The whole controversy in this appeal revolves around whether any income on the work-in-progress on construction work carried out by the assessee is chargeable to tax in the impugned assessment year . The assessee had shown work in progress in its books of accounts of Rs. 23.33 crores but the assessee did not offer any income on the WIP declared by it in its books of accounts. Simultaneously, the assessee was showing advance received against booking of the flats which were been constructed by the assessee in its books of accounts. Thus in the opinion of the AO the income on the work in progress being flats under construction was not declared by the assessee in the return of income filed with Revenue while the main contention of the assessee is that it is following completed contract method and the entire income of the projects undertaken by the assessee has been duly declared in the AY 2003-04 wherein total income of Rs. 51,22,966/- stood declared in the return of income filed with Revenue and due taxes stood paid to Revenue on this project. The assessee is following mercantile system of accounting. The assessee is a partnership firm h....
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....03-04. The AO was of the view that since the assessee has not declared its income on completed contract method even in AY 2003-04, the same is to be brought to tax in the impugned assessment year on accrual basis in compliance with directions of the tribunal vide appellate orders dated 24.11.2010 in ITA no. 789/Mum/ 2009. The AO was of the view that the assessee has perpetrated fraud on Revenue and gross misrepresentations were made before the tribunal in first round of litigation. The assessee has claimed that it is following completed contract method of accounting and no income accrued to it as per AS-7(un-amended) issued by ICAI. The AO observed that 85% of the project is complete by the end of the previous year relevant to impugned assessment year and hence income is to be brought to tax in this year also. The AO was of the view that since in the earlier years no income was declared , then in this impugned assessment year income to the tune of 8% of work in progress needs to be brought to tax. The assessee on its part pleaded that learned CIT(A) has held in favour of the assessee in AY 1999-00 and prayers were made by the assessee that provisions of Section 147 of the 1961 Act ....
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....1,828,792.00 Sea Breeze Shopping 4,581,881.50 4,581,881.50 Sagar Darshan Shopping 4,084,752.50 4,084,752.50 Sea Breeze CHS Ltd. 43,099,018.60 43,099,018.60 Sagar Darshan CHS Ltd. 38,296,932,95 38,296,932.95 369,165,351,94 43,832.04 369,209,183.98 Sea Sagar Construction Co. SSC SSC SSC SSC (SSC) FY 00-01 FY-01-02 FY -02-03 Total Work- in -Progress -SB 148,184,666.75 148,184,666.75 Work -in -Progress -SD 109.133,139.68 109,133.139.68 Work- in- Progress -SB-SD 883.097,00 7,075,500.00 13,870,195.00 21,828,792.00 Sea Breeze Shopping 4,581,881.50 4.581,881.50 Sagar Darshan Shopping 4,084,752.50 4,084,752.50 Sea Breeze CHS Ltd .43,099,018.60 43,099,018.60 Sagar Darshan CHS Ltd. 38,296,932.95 38,296,932.95 (445,701,00) 445,701.00 90,499,981.55 70,75,500.00 271,633,702.43 369,209,183.98 Revenue Recognised (....
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....no income was offered by the assessee. 5.3.2. During Remand proceedings before the AO, the assessee participated and submitted letter dated 26.11.2012 and claimed that M/s. Mayuresh Builders left the work incomplete during AY 1997-98 with WIP of Rs. 36,92,09,184/- which had been transferred to the books of accounts of the assessee firm in three years commencing from FY 2000-01 to 2002-03 as under:- Financial year Amount [Rs.] 2000-01 9,04,99, 982 2001-02 70,75,500/- 2002-03 27,16,33,702/- Total 36,92,09,184- 5.3.3 However, the AO observed in its remand report that according to Balance Sheet for the year ending 31.03.1997, the WIP was shown as under: Work-in-progress-Sea Breeze Rs. 14,74,80,448.75 Work-in-progress-Sagar Darshan Rs. 10,89,79,275.68 Work-in-progress-Office Rs. 2,12,78,967.36 Rs. 27,77,38,691.79 5.3.4 The AO observed in its remand report that the assessee has claimed that WIP of Rs. 9,04,99,982/- was transferred from Mayuresh Builder in the Financial Year 2000-01. The AO observed from Balance Sheet for Financial Year 2000-01 that however the WIP-A/c Mayuresh Builder was shown at only Rs. 8,83,0....
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.... service charges has been shown. The AO also observed that the WIP for AY 2001-02 is Rs. 41,77,47,724/- and not Rs. 19.59 crores . Thus, it was stated by the AO in its remand report that the assessee has perpetrated fraud on Revenue and gross misrepresentation before the ITAT. The Income has not been shown either as per project completion method nor by percentage completion method. The AO also observed that sale has not been shown at all which the assessee was bound to declare in AY 2003-04 as per its own contentions that it is following project completion method and taxes were evaded. 5.3.10 The AO observed in remand report that meagre income by way of service charges to the tune of Rs. 51,22,961/- was shown by the assessee in AY 2003-04. The AO observed that substantial work was completed by AY 2000-01 which is evident from advances received and WIP, the income ought to have been declared by the assessee in the impugned assessment year and the AO rightly brought to tax said income by estimating the same @8% of WIP. Thus, the AO submitted in its remand report filed before learned CIT(A) that the assessment order dated 29.12.2011 passed by the AO u/s 143(3) read with Section 254....
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....ssed u/s 143(1) of the 1961 Act. 5.4.2. The assessee explained that for AY 1998-99 and 1999-00, the assessee by following completed contract method did not offer any income in the return of income filed with Revenue. The AO made additions to the income by estimating the same @15% of WIP by following percentage completion method. The assessee submitted before learned CIT(A) that the matter went upto tribunal for those years who was pleased to delete the said additions to the income of the assessee vide appellate orders dated 15.04.2009 and 13.02.2009 passed by tribunal for those years . It was explained before learned CIT(A) by the assessee that to the best of assessee's knowledge, the Revenue has not challenged said orders of the tribunal before Hon'ble Bombay High Court as no appeal was filed by Revenue u/s 260A before Hon'ble Bombay High Court. 5.4.3. The assessee then referred to tribunal decision in first round of litigation for impugned assessment year 2000-01 and submitted that tribunal accepted completed contract method of accounting followed by the assessee but there was some confusion as to the figure of WIP shown by the assessee and the matter was restored to the AO....
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....while Rs. 36.92 crores is appearing as WIP in books of accounts of Mayuresh Builder as at 31.03.2000. 5.4.7 So far as tribunal observation of WIP of Rs. 19.59 crores in AY 2001-02, it was explained that it was incremental WIP of AY 2001-02 of which Rs. 18.45 crores was appearing in column 'WIP' during the year while Rs. 1.14 crores was appearing in column 'Expenses' during AY 2001-02. The cumulative WIP over years appearing in assessee's books was Rs. 42.91 crores as on 31.03.2001 and hence it was explained that there is no confusion in the figure of WIP as on 31.03.2001. Thus, it was claimed that if ITAT order for AY 2000-01 in first round of litigation is properly implemented, then income to be assessed for impugned year should be Nil. It is claimed that no other project apart from these two projects namely Sea Breeze and Sagar Darshan were undertaken by the assessee.It was also claimed , without prejudice, that in any case income of the assessee from these two projects was Rs. 51,22,961/- and even if percentage completion method is to be applied, then also the aforesaid income on proportionate basis as is relatable to year under consideration is to be brought to tax for the i....
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....ARA 5 of order that in A.Y.2003-04 P&L account was prepared and filed. Further In remand report (Last para on second last page of Remand Report) AO clearly state that "However, it is noticed that assessee has not shown any profit from the venture but only a meager sum of Rs. 51,22,961/- as service charges." This amount of Rs. 51,22,961/- is the profit which is earn by the assessee which is assessed by the AO. However, the same amount AO state that it is not from contract which is not justifiable Thus, it was explained that the directions given by ITAT in its order for AY 2000-01 in first round of litigation had not been followed by the AO and hence assessment order dated 29.12.2011 passed by the AO u/s 143(3) read with Section 254 of the 1961 Act is bad in law. 5.4.10 It was submitted that service charges of Rs. 51,22,961/- were infact income from these two projects earned by the assessee which was offered for taxation in AY 2003-04. Our attention was drawn to Notes to accounts of the audited financial statements for AY 2003-04, which are reproduced hereunder: "1. During the year under consideration , the firm has settled accounts with both the....
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....llowing judgments to support its contentions, which are as under:- 1. CIT v. Hyundai Heavy Industries Co. Limited (2007) 161 Taxman 191(SC) 2. Krish Infrastructure Private Limited v. ACIT (2013) 35 taxmann.com 38(JPR.trib.) 3. Mumbai-tribunal decision in the case of ITO,Mumbai v. Bhadrasen Construction Private Limited , in ITA No. 4634/Mum/2008 vide order dated 30.06.2010 4. CIT v. Bilahari Investment P. Ltd [2008] (299ITR 1)(SC) . 5. ACIT v. Skylark Build [2011] 15 taxmann.com 213 (Mum.) 6. CIT v. Khoday Distilleries Ltd (Kar HC) (ITRC Nos. 19 to 21 of 1993, dated 12.9.1995) 7. CIT v. V. S. Dempo & Co. Pvt. Ltd.[1996] (131 CTR 203) (Bombay) 8. CIT v. Vikas Oberoi (165 Taxation 7)(Bombay HC) 9. Awadhesh Builders v. 1TO [2010] (37 SOT 122)(Mum) 10. ACIT v. Rajesh Builders (2004-TI0L-88-ITAT-MUM) 11. ACIT v. Flowmore Pvt. Ltd. [1989] 33 TTJ (Del) 17 12. CIT v. Manju Gupta (RA No. 756/Bombay/94 and RA No. 757/Bom/94 order dated 10th Feb, 1995, Revenue required the Tribunal to refer the following question to Bom HC for its opinion. 13. Malka Construction Co. (ITA No. 406....
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....made. On departmental appeal, the Hon'ble ITAT vide order ITA No, 5285/Mum/2007 dated 15.04.2009 rejected the revenue's appeal. (iii). A.Y. 1999-00: No income was offered to tax by the appellant in respect of development of two societies. CIT(A) had given opinion on the issue in favour of the assessee. (iv). A.Y. 2000-01: No income was offered to tax by the appellant in respect of development of two societies. (v). A.Y. 2001-02: No income was offered to tax by the appellant in respect of development of two societies. The assessment was completed u/s 143(3) vide order dated 28.03.2003 at Nil income, accepting that the construction work of two societies had been completed during F.Y. 2002-03 (A.Y. 2003-04) and the assessee had received income and had estimated its taxable income for A.Y. 2003-04 at Rs. 52 lakhs approx. and as such no income was estimated for A.Y. 2001-02. ; (vi). A.Y. 2002-03: No income was offered to tax by the appellant in respect of development of two societies. Return was processed u/s 143(1) at Nil income. (vii). A.Y. 2003-04: The appellant claims to have offered the income to tax in respect of development of ....
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....various figures of WIP referred in various orders have been clarified by the assessee in its written submissions dated 28.12.2011, which are not disputed by the AO except few discrepancies reported in the Remand Report. However, I find that the assessee, in rejoinder to the remand report on 10.02.2014, has clarified most of such discrepancies reported in the remand report. 4.10. Considering the purpose for which the matter had been set aside by Hon'ble ITAT to AO, and the appellant's explanation to the confusion in figures over which the matter was so set aside and also the appellant's proving of fact that there was no other project, under WIP in any of the years except the development of said two societies, I feel no justification in going beyond the directions of Hon'ble ITAT and thereby questioning the revenue recognized in A.Y. 2003-04. Further, when the revenue recognized in A.Y. 2003-04 is not to be questioned, there can also be no justification in assessing the revenue for current year on presumptive basis, as it would amount to double taxation. It is also a fact that the appellant's own cases in prior/subsequent years on similar issue have final....
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....downturn in real estate, the said M/s. Mayuresh Builders entered into partnership with M/s. Satlej Properties Private Ltd., to form a new partnership in June 1997 namely the assessee to complete the construction of these two societies. It was submitted that the aforesaid projects were completed in AY 2003-04 by assessee. It was submitted that the assessee was merely the construction contractor and plots of land were allotted by CIDCO to these two societies at Nerul for developing residential flats for the members of these two societies. It was submitted that the assessee was only entitled to profits which are left over after completion of construction work which is the difference between the contribution received from members of these societies and the cost of construction and it was submitted that in any case margin of profit of the assessee could not have exceeded 10% of the project cost as per terms of agreement with these societies. It was submitted that M/s. Mayuresh Builders were contractors till June 1997 and they transferred work- in-progress appearing in their books of accounts in three tranches spread in three years starting from FY 2000-01 to 2002-03 to the assessee. It ....
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....005 was pleased to delete the addition for AY 1997-98 . The matter reached Hon'ble Bombay High Court at the behest of Revenue in CIT v. Mayuresh Builders in ITA no. 363 of 2008 and Hon'ble Bombay High Court vide orders dated 04.09.2008 noted that it is common ground that income was offered for taxation in AY 2003-04 and in this view Hon'ble High Court held that no substantial question of law arises and the appeal of the Revenue stood dismissed. The aforesaid orders in the case of Mayuresh Builders as were passed by tribunal and Hon'ble Bombay High Court for AY 1997-98 are placed in the file. Our attention was also drawn to assessment order dated 28.03.2003 passed by the AO u/s 143(3) for AY 2001-02 in the case of the assessee. The said assessment order is placed in file. It was explained that the AO has noted in assessment order for AY 2001-02 that the assessee carried out construction activities of two societies namely Sea Breeze Co-op. Housing Society and Sagar Darshan Co-op. Housing Society as their power of attorneys and the assessee was entitled for service charges as per agreement entered with these societies. It is stated that the assessee firm is a power of attorney holder ....
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....construction and development of residential buildings for members of the two societies namely M/s. Sea Breeze Co-operative Housing Society Ltd.(In short 'Sea Breeze'), and M/s. Sagar Darshan Co.operative Housing Society (In Short 'Sagar Darshan') , at Nerul since June 1997 . 9.2 The plot of land was allotted to these two societies by CIDCO in 1993 and the contract for construction and development of residential buildings for its members were initially awarded by these two societies in 1993 to M/s. Mayuresh Builders. The said M/s Mayuresh Builder carried out construction and development of residential buildings for members of these two societies till 1997 and it is claimed that due to paucity of funds and downfall in real estate sector, the said Mayuresh Builder could not carry forward the work of construction and development of residential buildings for members of these two societies as it could not arrange for finances required for carrying forward construction work which it was obligated under contractual obligation with these societies. The said Mayuresh Builder was following completed contract basis as method of accounting for booking revenue since 1993 onwards. Since the af....
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....onsistently followed since 1993 by Mayuresh Builder only in AY 1997-98 and hence additions as were made by the AO were deleted by tribunal for AY 1997-98 vide its appellate order dated 18.01.2005 The Revenue being aggrieved by the aforesaid appellate order dated 18.01.2005 passed by the tribunal filed an appeal u/s 260A of the 1961 Act with Hon'ble Bombay High Court for AY 1997-98 in the case of Mayuresh Builders which appeal stood dismissed by Hon'ble Bombay High Court in ITA No. 363 of 2008 vide judgment dated 04.09.2008 by holding that no substantial question of law arose in the appeal after noting that it is a common ground that on completion of the project the income was offered for tax in AY 2003-04. The said order of the tribunal and order of Hon'ble Bombay High Court in the case of Mayuresh Builder for AY 1997-98 are placed in file. 9.3 Being unable to carry forward the construction and development of residential buildings for members of these two societies owing to financial constraints and downturn in real estate sector, M/s Mayuresh Builder then entered into partnership with one M/s Satlej Properties Private Limited as partners in June 1997 to form new partnership fir....
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....tements for the financial year 2002-03 relevant to AY 2003-04 clearly shows that service charges of Rs. 51,22,92.80 stood credited in the Profit and Loss Account for financial year ended 31.03.2003, while the returned income was to the tune of Rs. 51,96,112/- and taxes to the tune of Rs. 19.10 lacs stood paid by the assessee to the Revenue . The claim of the assessee is that it is only persuing the construction and development of residential buildings for members of these two societies namely Sea Breeze and Sagar Darshan since its formation in June 1997 till its profits were finally declared in the return of income filed for AY 2003-04 and due taxes paid by it to Revenue in AY 2003-04. Thus, it is categorically and consistently averred by the assessee that its only business activities during all these years since its inception in June 1997 till previous year relevant to AY 2003-04 was to construct and develop the residential buildings for the members of these two societies namely Sea Breeze and Sagar Darshan and no other work/construction/business for any other person was undertaken by it in all these years. It is claimed that the assessee earned Rs. 51,22,963/- from the constructi....
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....of income filed with Revenue for AY 2003-04. 9.5 The assessee has also claimed that WIP as was appearing in books of accounts of Mayuresh Builders till it continued constructing residential buildings for members of these two societies were transferred to the books of accounts of the assessee in three years viz. AY 2001-02, 2002-03 and 2003-04. The detailed charts and evidences were filed before learned CIT(A) in second round of litigation which is duly recorded by learned CIT(A) in its appellate order which we have also reproduced in this order and there is no reasons before us to hold otherwise more-so learned DR could not bring any material to the contrary. 9.6 In the case of the assessee for AY 1998-99, the learned CIT(A) has noted in its appellate order dated 12.03.2014 for the impugned assessment year 2000-01 that the AO estimated profit @8% of total receipts being presumptive rate u/s 44AD for AY 1998-99 and on appeal the learned CIT(A) deleted the addition. On further appeal by Revenue, the tribunal restored the matter to file of the learned CIT(A) who again deleted the addition. The tribunal in ITA no. 5285/Mum/2007 vide orders dated 15.04.2009 dismissed the appeal of....
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....re contrary provisions in 1961 Act or it is not possible to compute income correctly under the 1961 Act by following such accounting standards, as is mandated u/s 145 of the 1961 Act. The assessee is consistently following the aforesaid method of accounting to book its revenue and in any case Revenue has got all its due taxes paid in AY 2003-04. If Revenue had any inhibition as it is alleging as to suppression of profits or inflation of construction expenses/WIP or as to nature of service charges declared by the assessee in AY 2003-04 , the Revenue ought to have scrutinised the return of income for AY 2003-04 u/s 143(3) or Section 147 of the 1961 Act for AY 2003-04 or ought to have conducted investigations / enquiries to threadbare verify total WIP of Rs. 78.38 crores, expenditure incurred towards construction or amounts received/receivable from members of these two societies of Rs. 78.90 crores vis-a-vis contract entered by the assessee with these two societies to unearth any fraud on Revenue perpetrated by the assessee or any excessive expenditure booked by the assessee towards construction cost or suppression of Income by the assessee.The Revenue did not scrutinised return of in....
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....s method leads to objective assessment of the results of the contract. 17. On the other hand, percentage of completion method tries to attain periodic recognition of income in order to reflect current performance. The amount of revenue recognised under this method is determined by reference to the stage of completion of the contract. The stage of completion can be looked at under this method by taking into consideration the proportion that costs incurred to date bears to the estimated total costs of contract. 18. The above indicates the difference between completed contract method and percentage of completion method. 19. In the judgment of the Bombay High Court in Taparia Tools Ltd.'s case (supra) it has been held that in every case of substitution of one method by another method, the burden is on the Department to prove that the method in vogue is not correct and it distorts the profits of a particular year. Under the mercantile system of accounting based on the concept of accrual, the method of accounting followed by the assessees is relevant. In the present case, there is no finding recorded by the Assessing Officer that the completed contract meth....
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.... some confusion regarding the figure of work in progress vis-à- vis the project undertaken, which needs to be set right. In such a situation we set aside the impugned order and restore the matter to the file of A.O. for deciding as to whether the two projects referred to in the assessment order for the year under consideration were part of the work completed in assessment year 2003-2004 on which income was offered for taxation. If the work in progress for the current year at Rs. 23.32 crores was carried over to subsequent years and the projects were complete in the assessment year 2003-2004 then no addition should be made in assessment year 2000-2001 as the income has been offered for taxation in this year. In the otherwise situation the Assessing Officer is free to decide as per law." 9.7.2 In the second round of litigation, the AO made additions to income by estimating income @8% of the WIP. The learned CIT(A) on the other hand deleted the additions as were made by the AO.The matter is now before tribunal at behest of Revenue. As could be seen from the appellate order of the tribunal in first round of litigation dated 24.11.2010, the tribunal has noted that the tribunal....
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....,348 43,835 369,209,183 AY 01 -02, 369,209 ,183 (90,499,982) 278,709,201 AY 02-03 278,709,201 (7,075,500) 271,633,701 AY 03-04 271,633,701 (271,633,701) - Sea Sugar Construction Co. MB+SSC Opening WIP during the year Exp. during (he year Total Total Rs. Upto 31/03/97 - - - - 367,801,274 AY '98-99 - 32,012,029 - 32,012,029 401,107,215 AY 99-00 32,012,029 115,228,581 - 147,240,610 516,405,958 AY 00-01 147,240,610 86,026,309 - 233,266,919 602,476,102 AY 01 -02 233,266,919 184,480,805 11,442,835 429,190,559 707,899,760 AY 02-03 429,190,559 33,177,460 3,360,034 465,728,053 737,361,754 AY 03-04 465,728,053 318,152,244 - 783,880,297 783,880,297 9.7.4 Thus, as could be seen above that Rs. 60.25 crores was the combined WIP as is existing in the books of accounts of Mayuresh Builders and the assessee firm as at 31.03.2000. This also stood explained by the assessee and it could not be controverted by learned DR. Then , the tribunal recorded in its order dated 24.11.2010 ....