DEVE PAINTS LTD, MUMBAI V. ITO 1(2)(1), MUMBAI

ITA 1455/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9759 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 02-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Opportunity of being heard

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 1455 /MUM/ 2017 (ASSESSMENT YEAR 20 1 2 - 13 ) DEVE PAINTS LIMITED GC - 1, C - WING GUNDECHA ONCLAVE KAIRANI ROAD SAKINAKA ANDHERI EAST MUMBAI - 400 072. PAN : AACCD12 40N VS. ITO 2(1)(2) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY SHRI S.K. BEPARI DATE OF HEARING 1 4 .9. 201 7 DATE OF PRONOUNCEMENT 14 . 9 . 201 7 O R D E R THE ASSESSEE HAS FILED THIS A PPEAL CHALLENGING THE ORDER DATED 19 - 12 - 2016 PASSED BY LD CIT(A) - 3, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2012 - 13. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN NOT ALLOWING EXPENSES, ASSESSING COMMISSION INCOME UNDER THE HEAD INCOME FR OM OTHER SOURCES, NOT GRANTING SET OFF OF BUSINESS LOSS AGAINST HOUSE PROPERTY INCOME. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE NOTICE OF HEARING WAS SENT BY REGISTERED POST ON MORE THAN ONE OCCASION. HENCE I PROCEED TO DISPOSE OF T HE APPEAL EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3. I HEARD LD D.R AND PERUSED THE RECORD. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF PAINTS. IT BECAME A SICK COMPANY AND HENCE IT WAS REFERRED TO BIFR. DURING THE YEAR UNDER CONSIDERATION, IT EARNED RENTAL INCOME, INTEREST INCOME AND COMMISSION INCOME ON TRADING IN PAINTS. THE ASSESSEE OFFERED RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY, INTEREST DEVE PAINTS LIMITED 2 INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES AND COMMISSION INCOM E UNDER THE HEAD INCOME FROM BUSINESS. AGAINST THE COMMISSION INCOME, IT HAD CLAIMED EXPENSES, WHICH HAS RESULTED IN LOSS AND THE SAID LOSS WAS SET OFF AGAINST THE HOUSE PROPERTY INCOME AND OTHER SOURCES INCOME. 4. THE AO TREATED THE COMMISSION INCOM E AS INCOME FROM OTHER SOURCES. HE ALSO DID NOT ALLOW ENTIRE AMOUNT OF EXPENSES CLAIMED BY THE ASSESSEE AND ALSO DID NOT ALLOW SET OFF OF LOSS AGAINST INCOME DECLARED UNDER OTHER HEADS. THE LD CIT(A) ALSO CONFIRMED THE SAME AND HENCE THE ASSESSEE HAS FIL ED THIS APPEAL. 5. I NOTICE THAT THE TAX AUTHORITIES HAVE NOT GIVEN PROPER REASON FOR ASSESSING COMMISSION INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. I NOTICE THAT THE ASSESSEE HAS EARNED COMMISSION INCOME IN ITS BUSINESS ACTIVITIES AND HENCE THE SAME SHOULD BE ASSESSED UNDER THE HEAD BUSINESS ONLY. SINCE THE ASSESSEE IS A CORPORATE COMPANY, IT IS REQUIRED TO INCUR EXPENSES INCURRED IN MAINTAINING CORPORATE STATUS. SUCH EXPENSES AS WELL AS EXPENSES INCURRED TO EARN COMMISSION INCOME, IN MY VI EW, SHOULD HAVE BEEN ALLOWED. I NOTICE THAT THE TAX AUTHORITIES HAVE NOT GIVEN PROPER REASONS FOR DISALLOWING THE CLAIM OF EXPENSES. 6. THE PROVISIONS OF SEC. 71 OF THE ACT GOVERNS THE INTER HEAD SET OFF OF LOSSES. I NOTICE THAT THE SET OFF OF LOSS C LAIMED BY THE ASSESSEE HAS BEEN DISALLOWED WITHOUT APPLYING THE PROVISIONS OF SEC. 71 OF THE ACT. 7. UNDER THESE SET OF FACTS, I AM OF THE VIEW THAT ALL THE ISSUES REQUIRE FRESH EXAMINATION AT THE END OF LD CIT(A). ACCORDINGLY I SET ASIDE THE ORDER P ASSED BY LD CIT(A) AND RESTORE ALL THE ISSUES TO HIS FILE WITH THE DIRECTION TO ADJUDICATE ALL OF THEM AFRESH AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DEVE PAINTS LIMITED 3 8. IN THE RESULT, THE A PPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STA TISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 1 4 . 9 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 1 4 / 9 / 20 1 7 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. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI