I.T.O. 6(3)(3), MUMBAI V. MAINSTREAM MERCHANDISE PVT. LTD., MUMBAI

ITA 1032/MUM/2012

• Counselvise Citation: 103219914 RSA 2012
• Duration Of Justice: 3 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 02-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2012
• Court: TRIBUNAL
• Department Lawyers: YOGESH KAMAT SR AR M
• Keywords: Gross profit estimation
• Section: 143(3)

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.02/M/2012 ( AY: 2008 - 2009 ) M/S. MAINSTREAM MERCHANDISE PVT LTD., SHAKTI SADAN CHS LTD., FLAT NO.02, GR. FLOOR, KAMNIYA COMPOUND, OPP. G.H. HIGH SCHOOL, BRIVALI (E), MUMBAI 66. / VS. ITO 6(3) - 3, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20. ./ PAN : AAACM3461E ( / APPELLANT) .. ( / RESPONDENT ) ./I.T.A. NO.1032/M/2012 ( AY: 2008 - 2009 ) ITO 6(3) - 3, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20. / VS. M/S. MAINSTREAM MERCHANDISE PVT LTD., SHAKTI SADAN CHS LTD., FLAT NO.02, GR. FLOOR, KAMNIYA COMPOUND, OPP. G.H. HIGH SCHOOL, BRIVALI (E), MUMBAI 66. ./ PAN : AAACM3461E ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI K. SHIVRAM / REVENUE BY : SHRI YOGESH KAMAT, SR. AR M / DATE OF HEARING : 02.6 .2015 / DATE OF PRONOUNCEMENT :30 .6 .2015 / O R D E R PER G.S. PANNU, AM : THE CAPTIONED CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST TH E ORDER PASSED BY THE CIT (A) - 12 , MUMBAI DATED 15.11.2011 FOR THE ASSESSMENT YEAR 2008 - 2009 IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT), DATED 28.12.2010 . 2 2. IN THE CAPTIONED APPEALS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND THE REVENUE READ AS UNDER: ITA NO.2/M/2012 (ASSESSEES APPEAL) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF DISCOUNT CHARGES EXPENSES OF RS. 2,29,77,729/ - HOLDING THE SAME TO BE PRIOR PERIOD EXPENSES. ITA NO.1032/M/2012 (REVENUES APPEAL) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION OF RS. 4,70,50,223/ - REPRESENTING 20% OF GROSS PROFIT WITHOUT APPRE CIATING THAT THE ASSESSEE, IN SPITE OF ADEQUATE OPPORTUNITY BEING PROVIDED, FAILED TO EXPLAIN THE REASONS FOR A LOWER GROSS PROFIT AS COMPARED TO OTHER SIMILAR BUSINESS AND ALSO ESTABLISH THE GENUINENESS OF BOOKS OF ACCOUNTS AND GP RATIO. 3. AT THE TIME OF HEARING, LD REPRESENTATIVE FOR THE ASSESSEE MADE A PRELIMINARY SUBMISSION THAT THE ISSUE RAISED IN THE CAPTIONED APPEALS DO NOT SURVIVE FOR CONSIDERATION AS THE SAME ARE COVERED BY THE ORDER OF THE INCOME TAX SETTLEMENT COMMISSION, DATED 8.11.2013, AND A COPY OF THE RELEVANT ORDER OF THE INCOME TAX SETTLEMENT COMMISSION, ADDITIONAL BENCH, MUMBAI PASSED U/S 245D(4) OF THE ACT, DATED 8.11.2013 IS PLACED ON RECORD. LD REPRESENTATIVE FOR THE ASSESSEE ALSO SUBMITTED THAT THE AFORESAID ORDER OF THE SETTLEMENT COMMISSION WAS PASSED SUBSEQUENT TO THE IMPUGNED ORDER OF THE CIT (A). 4. ON THE OTHER HAND, LD DR APPEARING FOR THE REVENUE HAS NOT CONTESTED THE FACTUAL MATRIX BROUGHT OUT BY THE LD REPRESENTATIVE. 5. IN THE ABOVE BACKGROUND, WE SET ASIDE THE ORDER OF T HE CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER, WHO SHALL GIVE EFFECT TO THE ORDER OF THE INCOME TAX SETTLEMENT COMM ISSION, DATED 8.11.2013 (SUPRA) AND RE - COMPUTE THE INCOME FOR THE YEAR UNDER CONSIDERATION ACCORDINGLY. 6. ACCO RDINGLY, THE CAPTIONED APPEALS ARE DISPOSED - OFF. ORDER P RONOUNCED IN THE OPEN COURT ON 30 TH JUNE , 2015. SD/ - SD/ - ( SANJAY GARG ) ( G.S. PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 30 . 6 .2015 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI