D.J. ENTERPRISES, MUMBAI V. ITO 25(1)(4), MUMBAI

CO 125/MUM/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8761 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 24-06-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 21-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI .. , ! ' # $$, % ', & BEFORE SHRI R.S.SYAL, AM AND SHRI SANJAY GARG, JM ITA NO.6244/MUM/2011 : ASST.YEAR 2008-2009 THE INCOME TAX OFFICER WARD 25(1)(4) MUMBAI. M/S.D.J.ENTERPRISES 510-A PATEL SHOPPING CENTRE CHANDAVARKAR LANE, BORIVALI (WEST) MUMBAI 400 092. PAN : AACFD0812B. ( '( / // / APPELLANT) * * * * / VS. ( +,'(/ RESPONDENT) CO NO.125/MUM/2012 : ASST.YEAR 2008-2009 M/S.D.J.ENTERPRISES 510-A PATEL SHOPPING CENTRE CHANDAVARKAR LANE, BORIVALI (WEST) MUMBAI 400 092. THE INCOME TAX OFFICER WARD 25(1)(4) MUMBAI. ( +,& / // / CROSS OBJECTOR) * * * * / VS. ( +,'(/ RESPONDENT) # # # # - -- - . . . . / REVENUE BY : SHRI O.P.MEENA %* /0 %* /0 %* /0 %* /0 - . - . - . - . / ASSESSEE BY : SHRI RAJESH KOTHARI * - 0! / / / / DATE OF HEARING : 24.06.2013 123 - 0! / DATE OF PRONOUNCEMENT : 26.06.2013 ' 4 ' 4 ' 4 ' 4 / / / / O R D E R PER R.S.SYAL ( AM) : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER PASSED BY THE COMMISSIONER O F INCOME-TAX (APPEALS) ON 24.06.2011 IN RELATION TO THE ASSESSME NT YEAR 2008- 2009. 2. ALL THE GROUNDS RAISED BY THE REVENUE ARE AGAINS T THE DELETION OF CERTAIN ADDITIONS WHICH WERE MADE BY THE A.O. AS A RESULT OF THE OPERATION OF SECTION 40(A)(IA). THE ASSESSEES CROS S OBJECTION IS ABOUT ITA NO.6244/M/2011 & CO 125/M/2012. M/S.D.J.ENTERPRISES. 2 THE CONFIRMATION OF DISALLOWANCE OF ` 15.66 LAKH INCURRED TOWARDS PRINTING, DYEING ETC. U/S 40(A)(IA). 3. SHORN OFF UNNECESSARY DETAILS IT IS NOTICED THAT THE ASSESSEE MADE CERTAIN PAYMENTS, WHICH IN THE OPINION OF THE ASSESSING OFFICER WERE REQUIRED TO BE MADE AFTER DEDUCTION OF TAX AT SOURCE. INVOKING THE PROVISIONS OF SECTION 40(A)(IA), THE A.O. MADE SUCH DISALLOWANCES. THE LEARNED CIT(A) DELETED CERTAIN A DDITIONS BY NOTING THAT NO AMOUNT WAS PAYABLE TOWARDS SUCH EXP ENSES AS AT THE END OF THE YEAR. THIS VIEW WAS CANVASSED BY TAKING INTO CONSIDERATION CERTAIN DECISIONS OF THE TRIBUNAL WHICH CAME TO BE APPROVED BY THE MAJORITY VIEW OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND TRANSPORTS HOLDING THAT DISALLOWANCE U/S 40(A)(IA) CAN BE MADE ONLY FOR THE EXPENSES WHICH A RE PAYABLE AS ON 31 ST MARCH AND NOT FOR THE AMOUNTS THAT HAVE ALREADY BE EN PAID DURING THE YEAR. THE REMAINING PART OF THE ADDITION WAS CONFIRMED ON THE SOLE GROUND THAT THE AMOUNT OF EXPENDITURE WAS PAYABLE AT THE YEAR END. 4. IT IS RELEVANT TO NOTE THAT THE HONBLE CALCUTTA HIGH COURT BY A RECENT JUDGMENT IN CIT V. CRESCENT EXPORT SYNDICATE HAS REVERSED THE MAJORITY VIEW OF THIS SPECIAL BENCH DECISION IN MERILYN SHIPPING AND TRANSPORTS . IN VIEW OF THE FACT THAT THE LEARNED CIT(A) HAS BASICALLY RELIED ON THE RATIO DECIDENDI OF THE SPECIAL BENCH DECISION, WHICH IS NO MORE GOOD LAW, WE ARE OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGN ED ORDER IS SET ITA NO.6244/M/2011 & CO 125/M/2012. M/S.D.J.ENTERPRISES. 3 ASIDE AND THE MATTER IS RESTORED TO HIS FILE FOR A FRESH DECISION AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. NEEDLESS TO SAY THE LEARNED CIT(A) WOULD DECIDE THE APPLICABILITY OR OTHERWISE OF SECTION 40(A)(IA) ON THE PAYMENTS UNDER CONSIDERATION OF BOTH THE APPEALS I.E. BY THE ASSES SEE AS WELL AS REVENUE AS PER LAW DE HORS THE RATIO OF MERILYN SHIPPING AND TRANSPORTS (SUPRA) . 5. / 05 # - 6 %* /0 - +,& 7- 89 : ; 0 < - #0 => IN THE RESULT, REVENUES APPEAL AND ASSESSEES CROS S OBJECTION ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF JUNE, 2013. ' 4 - 123 ?'*5 2 - $ SD/- SD/- (SANJAY GARG) (R.S.SYAL) % ' % ' % ' % ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; ?'* DATED : 26 TH JUNE, 2013. DEVDAS* ' 4 ' 4 ' 4 ' 4 - +%0;@ A @30 - +%0;@ A @30 - +%0;@ A @30 - +%0;@ A @30/ COPY OF THE ORDER FORWARDED TO : 1. '( / THE APPELLANT 2. +,'( / THE RESPONDENT. 3. B () / THE CIT, MUMBAI. 4. B / CIT(A)- 35 , MUMBAI 5. @E$ +%0%* , , / DR, ITAT, MUMBAI 6. $ F / GUARD FILE. ' 4* ' 4* ' 4* ' 4* / BY ORDER, ,@0 +%0 //TRUE COPY// 8 8 8 8/ // /= # = # = # = # ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI