RANJEET S. MUDHOLKAR, MUMBAI V. DCIT CIR 20(2), MUMBAI

ITA 1143/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7799 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 06-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2016
• Court: TRIBUNAL
• Keywords: Salary income; Opportunity of being heard
• Section: 2

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K.PRADHAN, ACCOUNTANT MEMBER ITA NO.1143/MUM/2016 ASSESSMENT YEAR: 2009-10 SHRI RANJEET S. MUDHOLKAR, 61, VENUS CHS LTD., NEAR VERSOVA TELEPHONE EXCHANGE MHADA, NEAR SVP NAGAR, ANDHERI (W) MUMBAI 400 053 / VS. DCIT CIR 20(2), MUMBAI ( ! ' # /ASSESSEE) ( $ / REVENUE) PAN. NO .AGXPM2537K % $& ' # ( / DATE OF HEARING: 15/03/2017 ' # ( / DATE OF ORDER: 15/03/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 05/01/2016 OF THE LEARNED FIRST APPELLATE AUT HORITY, MUMBAI ON THE GROUNDS STATED THEREIN. BROADLY, THE !' # !' / ASSESSEE BY SHRI RANJEET S. MUDHOLKAR $ !' / REVENUE BY SHRI PURUSHOTTAM KUMAR ITA NO. 1143/MUM/2016 SHRI RANJEET S. MUDHOLKAR 2 ASSESSEE HAS CHALLENGED SUSTAINING / NOT ALLOWING S ET OFF OF LOSS AMOUNTING TO RS.80,09,448/-, UNDER THE HEAD S ALARY BEING THE SALARY OF PREVIOUS THREE YEARS, REFUNDED BY THE ASSESSEE, TO HIS EMPLOYER IN ACCORDANCE WITH THE PR OVISIONS OF COMPANYS ACT 1956. 2. DURING HEARING THE ASSESSEE APPEARED IN PERSON A ND EXPLAINED THAT HE WAS CHIEF EXECUTIVE OFFICER AND D IRECTOR OF M/S. FINANCIAL PLANNING STANDARDS BOARD, INDIA ( IN SHORT HEREINAFTER EPSB). IN THE MONTH OF SEPTEMBER 2008, STATUTORY AUDITORS OF THE COMPANY POINTED OUT THAT SINCE THE ASSESSEE IS DESIGNATED DIRECTOR OF THE COMPANY, THEREFORE, HIS REMUNERATION SHOULD BE WITHIN THE PRESCRIBED LIMIT AS PROVIDED IN THE COMPANYS ACT 1 956. THE SALARY OF THE ASSESSEE WAS IN EXCESS OF THE LIM IT AS LAID DOWN IN SECTION 309(3) OF THE COMPANYS ACT, THEREF ORE, THE EXCESS AMOUNT RECEIVED BY THE ASSESSEE FOR A.YS 200 6-07, 2007-08 AND 2008-09 AND REMUNERATION RECEIVED FROM 01/04/2008 TO 31/07/2008 AGGREGATING RS. 90,31,450/ - WAS VOLUNTARILY REFUNDED BY THE ASSESSEE TO EPSB IN THE MONTH OF SEPTEMBER 2008. THE INCOME TAX RETURNS FOR THE A.Y.2007-08 AND 2008-09 WERE REVISED BY THE ASSESSE E TO REFLECT THE CORRECT AMOUNT OF SALARY INCOME AFTER D EDUCTING THE AMOUNT REFUNDED IN SEPTEMBER 2008. IN THE RETUR N FOR A.Y. 2009-10 (THE APPEAL BEFORE US) THE ASSESSEE CL AIMED THE ENTIRE AMOUNT SALARY REPAID I.E., RS.90,31,450/ - FOR VARIOUS YEARS AS A DEDUCTION UNDER THE HEAD INCOME FROM SALARY WHICH RESULTED IN A LOSS UNDER THE ITA NO. 1143/MUM/2016 SHRI RANJEET S. MUDHOLKAR 3 SALARY HEAD WHICH WAS SET OFF AGAINST THE INCOME UN DER THE HEAD BUSINESS / PROFESSION, WHICH WAS DISALLOWED BY THE ASSESSING OFFICER. THE ASSESSEE FURTHER ASCERTAINED THAT IDENTICALLY IN SUBSEQUENT YEARS IDENTICAL CLAIM WAS ALLOWED BY THE DEPARTMENT FOR WHICH OUR ATTENTION AS INVITE D TO PAGE 87 OF THE PAPER BOOK AND FURTHER PAGES 94 & 95 OF THE PAPER BOOK. IT WAS EXPLAINED THAT RS.4 LAKHS RELATE S TO A.Y.2005-06. THIS FACTUAL MATRIX WAS NOT CONTROVERT ED BY LEARNED AR THOUGH HE CONTENDED THAT THE CLAIM OF TH E ASSESSEE CANNOT BE ALLOWED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. UNDER THE AFOREME NTIONED FACTS, WE FIND THAT IN ITS TAX COMPUTATION FORM (PA GES 94, 95) THE ASSESSEE HAS CLEARLY MENTIONED THE BALANCE AMOUNT AS REFUNDABLE. THERE IS NO DISPUTE TO THE FACT THAT THE IN REMAND NOTICE U/S.156 OF THE ACT (PAGE 87 & 88) OF THE PAPER BOOK, IT HAS BEEN MENTIONED AS UNDER:- 1. THIS IS TO GIVE YOU NOTICE THAT FOR THE ASSESSM ENT YEAR 2007-08 A SUM OF RS.16,51,160/- THE DETAILS OF WHICH ARE GIVEN ON THE REVERSE HAS BEEN DETERMINED TO BE PAYABLE TO YOU. IN THE LIGHT OF THE FOREGOING DISCUSSION AND THE AS SERTION MADE FROM BOTH SIDES, WE ARE OF THE VIEW THAT THE E NTIRE FACTS NEEDS REEXAMINATION AT THE LEVEL OF THE ASSES SING OFFICER. THE ASSESSEE IS DIRECTED TO PRODUCE THE RE LEVANT RECORD BEFORE THE ASSESSING OFFICER, WHO WILL EXAMI NE THE ITA NO. 1143/MUM/2016 SHRI RANJEET S. MUDHOLKAR 4 CASE OF THE ASSESSEE WITH OPEN MIND. THE ASSESSEE B E GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY. EVEN OTHERWISE, THE MANDATE OF AR TICLE 265 OF CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES ONLY. THE APPEAL OF THE ASSESSEE IS THUS ALLOWED FO R STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 15/03/2017. SD/- SD/- ( N.K.PRADHAN ) (JOGINDER SINGH) #'$ / ACCOUNTANT MEMBER %'$ /JUDICIAL MEMBER % & MUMBAI; * DATED : 15 /03/2017 TT? FA P.S/. &%'()*)+' / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /-. / THE RESPONDENT. 3. 0 0 % 1# ( +, ) / THE CIT, MUMBAI. 4. 0 0 % 1# / CIT(A)- , MUMBAI, 5. 3$4 # , 0 +,( + 5 , % & / DR, ITAT, MUMBAI 6. 6! 7& / GUARD FILE. ITA NO. 1143/MUM/2016 SHRI RANJEET S. MUDHOLKAR 5 ' / BY ORDER, /3,# # //TRUE COPY// /' (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI