NIKMO FINANCE P. LTD, MUMBAI V. ITO WD 9(2)(3), MUMBAI

ITA 1291/MUM/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6691 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 19-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Keywords: Opportunity of being heard; Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI . , !'# $ $ $ $ , %& '()* , %+ ,- % # BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ I.T.A. NO.1291/MUM/2011 ( . . . . / ASSESSMENT YEAR :2007-08 M/S. NIKMO FINANCE PVT. LTD., ATTRIUM-215, 10 TH FLOOR, NEAR MARRIOT COURT YARD, ANDHERI-KURLA ROAD, ANDHERI (E), MUMBAI-400 059 / VS. THE ITO , WARD 9(2)(3), AAYAKAR BHAVAN, NEW MARINE LINES, MUMBAI-400 020 -/ %+ ./ 0 ./ PAN/GIR NO. : AABCN 9974G ( /1 / APPELLANT ) .. ( 23/1 / RESPONDENT ) /1 4 % / APPELLANT BY: SHRI VIJAY MEHTA 23/1 5 4 % / RESPONDENT BY: SHRI R.K. SAHU 5 6+ / DATE OF HEARING :19.06.2014 7. 5 6+ / DATE OF PRONOUNCEMENT :19.06.2014 ,%8 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-20, MUMBAI DT.10.12.2010 PERTAINING TO A.Y. 2007-08. ITA NO. 1291/M/2011 2 2. THE SHORT GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE ADDITIONAL CLAIM MADE IN RESPECT O F ENTERTAINMENT DUTY OF RS. 33,15,807/- TREATED BY THE ASSESSEE AS CAPIT AL SUBSIDY. 3. THE ASSESSEE IS IN THE BUSINESS OF RUNNING MULTI PLEX THEATRES. RETURN WAS FILED ON 19.10.2007 DECLARING NIL INCOME . THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND STATUTORY NOTI CE U/S. 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. 4. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE ASSESSEE MADE AN ADDITIONAL CLAIM STATING THAT THE ENTERTAINMENT DUTY OF RS. 33,15,807/- COLLECTED REPRESENTS THE CAPITAL SU BSIDY AND NOT TO BE TAXED AS REVENUE SUBSIDY. THE AO NOTICED THAT THIS CLAIM WAS NOT MADE IN THE RETURN OF INCOME. DRAWING SUPPORT FROM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS CIT 284 ITR 323, THE AO DECLINE TO ENTERTAIN THE ADDITIONAL CLAIM MADE DURING THE ASSESSMENT PROCEEDINGS. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). IT WAS POINTED OUT TO THE LD. CIT(A) THAT BY DENYING SUCH A CLAIM, THE CONSTITUTIONAL RIGHTS GRANTED UNDER ARTICLE 265 OF THE CONSTITUTION HAS BEEN VIOLATED WHEREIN IT HAS BEEN PROVIDED THAT NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY AUTHORITY OF LAW. AFTER CONSI DERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) WAS OF THE OPINION THAT IN THE LIGHT OF THE DECISION IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) , THE AO CANNOT ENTERTAIN ANY ADDITIONAL CLAIM WHICH IS NOT CLAIMED IN THE RETURN OR BY A REVISED RETURN AND DISMISSED THE APPEAL OF THE ASSE SSEE. 6. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. ITA NO. 1291/M/2011 3 7. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE RELATING TO THE ADDITIONAL CLAIM DURING THE ASSESSMENT PROCEEDINGS IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS PRUTHVI BROKERS & SHARES PVT. LTD. 349 ITR 3 36. 8. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STATED THAT IF THE ADDITIONAL CLAIM IS ENTERTAINED, THEN THE ASSESSED INCOME WOULD GO BELOW THE RETURNED INCOME WHICH WOULD BE AGAINST THE CANO N OF LAW. 9. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES AND THE DECISION RELIED UPON BY THE ASSESSEE. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF PRUTHVI BR OKERS & SHARES PVT. LTD. (SUPRA). THE HONBLE HIGH COURT HAS HELD AS U NDER: IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT H OLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE AO, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUT HORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BE NEGATED BY THE SU PREME COURT IN THIS JUDGEMENT. IN FACT, THE SUPREME COUR T MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL U/S. 254. THIS DECISION OF THE JURISDICTIONAL HIGH COURT HAS AMPLY MADE IT CLEAR THAT THE ASSESSEE CAN MAKE AN ADDITIONAL CLAI M WITH THE APPELLATE AUTHORITY AND THE APPELLATE AUTHORITY IS WITHIN HIS POWER TO ADMIT THE ADDITIONAL CLAIM. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO CONSIDER THE ADDITIONAL CLAIM OF THE ASSESSEE ITA NO. 1291/M/2011 4 AS PER THE PROVISIONS OF LAW AFTER GIVING REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JUNE, 2014 . ,%8 5 . +% 9 :, ; 19.6.2014 5 < SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) !'# /VICE PRESIDENT %+ ,- / ACCOUNTANT MEMBER MUMBAI; :, DATED 19.6.2014 . . ./ RJ , SR. PS ,%8 ,%8 ,%8 ,%8 5 55 5 26' 26' 26' 26' =%'.6 =%'.6 =%'.6 =%'.6 / COPY OF THE ORDER FORWARDED TO : 1. /1 / THE APPELLANT 2. 23/1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. '?< 26 , , / DR, ITAT, MUMBAI 6. < @ / GUARD FILE. ,%8 ,%8 ,%8 ,%8 / BY ORDER, 3'6 26 //TRUE COPY// ! !! ! / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI