J.B. Roy, Lucknow V. ACIT, New Delhi

CO 161/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5105 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 30-08-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 21-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AND CROSS OBJECTIONS
• Keywords: Salary income

Judgement Text

ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI I.P BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NOS. 1569, 1570 & 1571/DEL/2010 A.YRS. : 2003-04, 2005-06 & 2006-07 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-6, ROOM NO. 334, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI (PAN: ACQPR-9786-L) VS. SH. J.B. ROY, 1, KAPOORTHALA COMPLEX, ALIGANJ, LUCKNOW AND C.O. NOS. 159, 160, & 161/DEL/2010 (IN I.T.A. NOS. 1569, 1570 & 1571/DEL/2010) SH. J.B. ROY, VS. ASSTT. COMMISSIONER OF INCOME TAX, 1, KAPOORTHALA COMPLEX, CENTRAL CIRCLE-6, ALIGANJ, ROOM NO. 334, ARA CENTRE, LUCKNOW JHANDEWALAN EXTN., NEW DELHI (PAN: ACQPR-9786-L) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PER PER PER PER BENCH BENCH BENCH BENCH THESE APPEALS BY THE REVENUE AND CROSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 2 2. SINCE THE ISSUES INVOLVED ARE COMMON AND CONNEC TED AND THE APPEALS & CROSS OBJECTIONS WERE HEARD TOGETHER, HENC E, THESE ARE BEING CONSOLIDATED AND DISPOSED OF TOGETHER FOR THE SAKE OF CONVENIENCE. 3. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT SALARY INCOME RECEIVED BY THE ASSESSEE AS SALARY INCOME AND NOT UNDER THE HEAD INC OME FROM OTHER SOURCES. 4. AT THE OUTSET, LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE I TAT DECISION IN ASSESSEES OWN CASE IN ITA NO. 1646 TO 1648/DEL/200 8 FOR ASSESSMENT YEARS 2000-01 TO 2002-03. IN THE SAID ORDER THE TRI BUNAL HAD REFERRED THE ITAT JUDGEMENT DATED 17.10.2008 AS UNDER:- IT WAS POINTED OUT THAT THE SIMILAR ISSUE WAS CONS IDERED BY THE TRIBUNAL IN THE CASE OF SUBRATA RAO SAHARA IN ITA N O. 100/LUC./2000 (A COPY OF WHICH IS FILED AT PAGE 6-2 3 OF THE PAPER BOOK) WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF TH E ASSESSEE VIDE PARAGRAPHS 17 & 18. ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 3 THE GROUND RAISED BY THE REVENUE IN ITA NO. 100/LUC /2000 WAS AS UNDER:- 1. THAT THE C.I.T.(A) HAS ERRED IN ALLOWING STAND ARD DEDUCTION TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THERE WAS NO EMPLOYEE/EMPLOYER RELATIONSHI P BETWEEN THE ASSESSEE AND THE PAYEE COMPANY AS HELD BY THE HONBLE SUPREME COURT IN CASE OF RAMPRASAD VS. C.I.T., 86 ITR. THE OBSERVATIONS OF THE TRIBUNAL WITH REGARD TO THE ABOVE GROUND FROM THE SAID ORDER WAS AS UNDER:- AS REGARDS GROUND NO. 1 THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS RECEIVING REMUNERATION FROM M/S SAHARA INDIA FINANCIAL CORPORATION LTD. ON WHICH STANDARD DEDUCTION U/S 16(1) OF THE ACT WAS CLAIMED. THE ASSESSING OFFICER HELD THAT THERE WAS NO RELATIONSHIP OF MASTER AND SERVANT BETWEEN THE COMPANY AND THE ASSESSEE AND, THEREFORE, HE DID NOT ALLOW STANDARD DEDUCTION U/S 16(1) OF THE ACT. ON ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 4 APPEAL, THE SAME WAS ALLOWED BY THE C.I.T.(A) WHICH HAS BEEN CHALLENGED BEFORE US. AFTER HEARING THE RIVAL SUBMISSIONS, WE FIND THAT THIS ISSUE IS COVERED BY THE ORDER OF THE TRIB UNAL IN THE ASSESSEES OWN CASE IN THE ASSESSMENT YEAR 1994 - 95. VIDE ITS ORDER IN ITA NO. 745/ALLD./2000, THE TRIBUNAL HAS UPHELD THE ALLOWANCE OF STANDARD DEDUCTION U/S 16(1) OF THE ACT. AS NO NEW FACTS HA VE BEEN BROUGHT BEFORE US, CONCURRING WITH THE ORDER O F THE TRIBUNAL, WE UPHOLD THAT THE C.I.T.(A) HAS RIGH TLY ALLOWED RELIEF TO THE ASSESSEE. WHILE UPHOLDING HIS FINDING, WE DISMISS THE GROUND OF APPEAL RAISED BY T HE REVENUE. IN VIEW OF THIS SITUATION AND AFTER HEARING BOTH T HE PARTIES RESPECTFULLY FOLLOWING THE ABOVE DECISION O F COORDINATE BENCH WE HOLD THAT THE INCOME IS ASSESSA BLE AS SALARY AND DEDUCTION U/S 16(1) AND 10(13A) WERE RIG HTLY HELD ALLOWABLE. ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 5 4.1 SINCE THE FACTS ARE IDENTICAL, ADHERING TO THE DOCTRINE OF STAIRE DECISES, WE UPHOLD THE ORDER OF THE C.I.T.(A) AND D ECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. THE ANOTHER COMMON ISSUE ARE IS THAT LD. COMMIS SIONER OF INCOME TAX (APPEALS) HAS ERRED IN DIRECTING THE ASS ESSING OFFICER TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 10(1 3A) OF THE IT ACT. 5.1 ON THIS ISSUE LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT THIS ISSUE IS AGAIN COVERED BY THE AFORESAID TRIBUNALS ORDER IN ITA NO. 1646 TO 1648/DEL/2008 DATED 4.6.2009 WHEREIN IN PARA 7 F OLLOWING HAS BEEN HELD:- APROPOS REMAINING GROUND I.E. DEDUCTION U/S 10(XII IA) THERE IS NO CHANGE IN THE FACT FOLLOWING THE ITAT O RDER OF A.Y. 99-00 WE HOLD THAT C.I.T.(A) HAS RIGHTLY ALLO WED DEDUCTION U/S (XIIIA). THIS GROUND OF THE REVENUE IS DISMISSED. 5.2 SINCE THE C.I.T.(A) HAS FOLLOWED THE ABOVE ORDE R IN HIS APPELLATE ORDER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE C.I.T.(A) AND HENCE, CONFIRM THE SAME. ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 6 6. THE LAST ISSUE PERTAINS TO DELETION OF ADDITION MADE ON ACCOUNT OF PERQUISITES. 6.1 THE ADDITION IN THIS REGARD WERE MADE BY THE AS SESSING OFFICER ON ACCOUNT OF THE FOLLOWING :- A) CONCESSIONAL RENT B) DOMESTIC SERVANT C) GAS AND WATER CHARGES D) VALUE OF CHAUFFEUR DRIVEN CAR 6.2 AS REGARDS THE ISSUE OF CONCESSIONAL RENT, LD. COUNSEL OF THE ASSESSEE REFERRED TO THE AFORESAID TRIBUNALS ORDER IN ASSESSEES OWN CASE WHEREIN VIDE PARA 6 FOLLOWING HAS BEEN HELD: - APROPOS ADDITION ON ACCOUNT OF CONCESSIONAL RENT I NCLUDING THE BENEFIT OF FURNITURE AND FIXTURE, ITAT IN A.Y. 99-0 0 HAS HELD THAT THESE PREMISES ARE NOT OWNED BY THE FIRM, THERE IS N O CHANGE IN THE FACTS WHICH IS AGREED BY BOTH PARTIES. FOLLOWIN G THE ORDER OF ITAT ORDER WE UPHOLD THE ORDER OF THE C.I.T.(A) IN DELETING THE ADDITIONS ON ACCOUNT OF CONCESSIONAL RENT INCLUDIN G BENEFITS ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 7 ARISING OUT OF FURNITURE AND FIXTURE. THIS GROUND OF REVENUE IS DISMISSED. 6.3 IN THE PRESENT YEAR ALSO BOTH THE COUNSELS FA IRLY AGREED THAT THE FACTS ARE SIMILAR. FOLLOWING THE ABOVE PRECEDENT, T HIS GROUND OF REVENUE IS ALSO DISMISSED. 6.4 AS REGARDS THE ISSUES OF DOMESTIC SERVANT; GAS AND WATER CHARGES AND VALUE OF CHAUFFEUR DRIVEN CAR. ON THE SE ISSUES ALSO THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE SAME ISSUES WERE COVERED IN ASSESSEES FAVOUR VIDE PARA 5 OF THE AB OVE SAID TRIBUNAL ORDER. IN THE ABOVE TRIBUNALS ORDER IT WAS HELD T HAT :- APROPOS ISSUE ABOUT PERQUISITES U/S 29(V) IT IS AB UNDANTLY CLEAR THAT IN RESPECT OF SECURITY GUARDS, SERVANTS AND GA RDENER THE EXPENSES HAVE BEEN PAID BY THE ASSESSEE FROM HIS CU RRENT ACCOUNT MAINTAINED WITH THE FIRM. RESTS OF THE PER QUISITES HAVE BEEN ADDED IN THE HANDS OF THE FIRM, WHICH IS NOT D ISPUTED, LD. D.R. HAS NOT CONTROVERTED THE FACT. KEEPING THESE FA CTS IN MIND AND ITAT ORDER, SINCE THE PERQUISITES HAVE EITHER B EEN ADDED IN THE HANDS OF THE FIRM AND SOME HAVE BEEN DEBITED T O ASSESSEES ACCOUNTS, WE UPHOLD THE ORDER OF C.I.T.(A) ON THIS ISSUE. THIS GROUND OF THE REVENUE IS DISMISSED. 6.5 WE FIND THAT THAT FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE ARE IDENTICAL AND BOTH THE COUNSEL FAIRLY AGREED TH AT THESE ISSUES ARE ITA NO. 1569, 1570 & 1571/DEL/2010 AND C.O. NO. 159, 160 & 161/DEL/2010 A.Y.RS. 2003-04, 2005-06 & 2006-07 8 COVERED IN FAVOUR OF THE ASSESSEE. SINCE THE C. I.T.(A) HAS FOLLOWED THE AFORESAID TRIBUNALS ORDER, WE UPHOLD THE SAME AND DECIDE THE ISSUES IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, ALL THE REVENUE APPEALS ARE DISMI SSED. 8. THE CROSS OBJECTIONS OF THE ASSESSEE OF ALL THE ASSESSMENT YEARS ARE ONLY SUPPORTIVE OF THE ORDER OF THE C.I.T.(A). SINCE WE HAVE ALREADY UPHELD THE ORDER OF THE C.I.T.(A) IN THE AB OVE REVENUE APPEALS, ALL THE CROSS OBJECTIONS FILED BY THE ASSESSEE STA ND INFRUCTUOUS AND ACCORDINGLY THE SAME ARE DISMISSED AS INFRUCTUOUS. 9. IN THE RESULT, ALL THE APPEALS FILED BY THE RE VENUE ARE DISMISSED AND ALL THE CROSS OBJECTIONS FILED BY THE ASSESSEE A RE DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 31/08/2010. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 31/08/2010 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES