ACIT 11(2), MUMBAI V. KANGA & CO., MUMBAI

ITA 139/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48448 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 07-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K BALODIA
• Assessee Lawyers: B D DAMODAR
• Keywords: Diversion of income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: MUMBAI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.139/MUM/2010 (ASSESSMENT YEAR: 2006-07) DCIT 11(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI -400 020 ..... REVENUE VS M/S. KANGA AND CO., READY MONEY MANSION, 1ST FLOOR, 43, VEER NARIMAN ROAD, MUMBAI -400 001 .........ASSESSEE PAN: AAAFK 9525 E ASSESSEE BY: SHRI B.D. DAMODAR REVENUE BY: SHRI N.K. BALODIA O R D E R PER R.S. PADVEKAR, JM THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT (A)-II MUMBAI DATED 24.10.2009 FOR THE A.Y. 2006- 07. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF ` 25,29,671/- ON ACCOUNT OF PAYMENT MADE TO EX- PARTNERS / SPOUCES OF DECEASED PARTNERS. 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF THE JURISDICTIONAL HIGH COURT IN ITA NO.860 OF 2009 FOR THE A.Y. 2001-02 IN ITA 139/M/2010 M/S. KANGA AND CO. 2 THE ASSESSEES OWN CASE. HE FURTHER SUBMITS THAT T HIS ISSUE IS REPETITIVE ISSUE AND IN ASSESSEES OWN CASE THE TRIBUNAL HAS D ECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. WE HAVE ALSO HEARD THE LD. D.R. WHO FAIRLY CONCEDED THAT THIS ISSUE IS IN RESPECT OF PAYMENT T O EX-PARTNERS OF THE DECEASED HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE . THE FACTS PERTAINING TO THE ISSUE BEFORE US ARE THAT THE ASSE SSEE MADE PAYMENT TO ITS DECEASED OR RETIRED PARTNER DURING THE YEAR AND IT WAS CLAIMED THAT THE SAID WAS AS PER THE DEED OF THE PARTNERSHIP. I T WAS ALSO CONTENDED THAT ON THE PRINCIPLES OF DIVERSION OF INCOME BY OV ERRIDING TITLE, THE SAID SUM CANNOT BE INCLUDED IN THE HANDS OF THE ASSESSEE . THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE HONBLE HIGH COURT OF BOMBAY IN THE ASSESSEES OWN CASE IN ITA NO.860 OF 2009 JUDGMENT DATED 19.6.2009 AND HONBLE HIGH COURT IN THE CASE OF CIT VS. MULLA & MULLA AND CRAIGIE, BLUNT AND CAROE, 198 ITR 190 DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY DISMISSING THE APPEAL FILED BY THE REVENUE. THE TRIBUNAL HAS CONSISTENTLY DECIDED THIS ISSUE IN FAV OUR OF THE ASSESSEE AND COPIES OF THE RESPECTIVE ORDERS ARE PLACED ON R ECORD. WE, THEREFORE, FIND NO REASON TO INTERFERE WITH THE ORDER OF THE L D. CIT (A) ON THIS ISSUE AND THE SAME IS CONFIRMED. 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 8 TH APRIL 2011. SD/- SD/- ( S.V. MEHROTRA) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 8TH APRIL 2011 COPY TO:- 1) THE APPLICANT. 2) THE RESPONDENT. 3) THE CIT (A) 3, MUMBAI. 4) THE CIT -XI, MUMBAI. 5) THE D.R. A BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 139/M/2010 M/S. KANGA AND CO. 3 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 06.04.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 07.04.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER