SIRDAR CORBONIC GAS CO. LTD., MUMBAI V. D.C.I.T.2(3), MUMBAI

ITA 1650/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79311 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 02-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 25-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PITAMBER DAS
• Keywords: Depreciation; Earning of tax free income; Period of limitation
• Section: 14A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.1650/MUM/2011, A.Y. 2007-08. THE SIRDAR CARBONIC GAS CO. LTD., SIR VITHALDAS CHAMBERS, 16, MUMBAI SAMACHAR MARG, FORT, MUMBAI 400001. PAN:AAACT 0173A (APPELLANT ) VS. THE DCIT 2(3), ROOM NO.555, 5 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020. (RESPONDENT) APPELLANT BY : SHRI K.GOPAL RESPONDENT BY : SHRI PI TAMBER DAS DATE OF HEARING : 02/07/20 14 DATE OF PRONOUNCEMENT : 02/07/2014 ORDER PER I.P.BANSAL, J.M, THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A)-6, MUMBAI DATED 7/12/2010 FOR ASSESS MENT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER: 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN DISMISSING THE APPEAL OF YOUR APPELLANTS IN LIMINE HOLDING THAT TH E SAME WAS FILED BEYOND THE PERIOD OF LIMITATION. YOUR APPELLANTS SUBMIT THAT THE APPEAL BEFORE THE C OMMISSIONER OF INCOME-TAX (APPEALS) WAS FILED ON 29/1/2010 WHICH WAS WITHIN 3 0 DAYS OF DATE OF SERVICE OF NOTICE OF DEMAND OF 31/12/2009. YOUR APPELLANTS SUB MIT THAT THE MATTER BE RESTORED BACK TO THE FILE OF LEARNED COMMISSIONER O F INCOME-TAX (APPEALS) FOR HEARING ON MERITS. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE DECIDED ALL THE GROUNDS RAISED IN THE APPEAL BEFORE HIM AND IN PART ICULAR HE OUGHT TO HAVE HELD :- ITA NO.1650/MUM/2011, A.Y. 2007-08 . 2 A. THAT THE LEARNED ASSESSING OFFICER ERRED IN DISA LLOWING RS.7,000/- BEING ENTRANCE FEES TO CLUB HOLDING THAT THEY ARE CAPITAL IN NATUR E AND THE SAME IS ALLOWED AS CLAIMED. WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT(A) O UGHT TO HAVE ALLOWED THE DEPRECIATION ON THE SAME. B. THAT THE LEARNED ASSESSING OFFICER ERRED IN DISA LLOWING RS.2,04,928/- (BEING 25% OF THE PETROL, CAR PARKING AND TOLL CHARGES OF RS.8 ,19,711/-) HOLDING THAT THEY ARE SUPPORTED BY SELF MADE VOUCHERS AND THE SAME IS ALL OWED AS CLAIMED. C. THAT THE LEARNED ASSESSING OFFICER ERRED IN DISA LLOWING RS.9,48,494/- U/S.14A OF THE INCOME-TAX ACT 1961 AS EXPENDITURE ATTRIBUTABLE TO THE EARNING OF EXEMPT INCOME AND THE DISALLOWANCE MADE U/S. 14A OF RS. 9,48,494/ - IS DELETED. WITHOUT PREJUDICE TO THE ABOVE, YOUR APPELLANTS SUB MIT THAT THE CIT(A) OUGHT TO HAVE HELD THAT THE LEARNED ASSESSING OFFICER ERRED IN NO T NETTING OFF INTEREST INCOME AGAINST INTEREST EXPENSE. WITHOUT PREJUDICE TO THE ABOVE YOUR APPELLANTS SUBM IT THAT RULE 8D IS NOT APPLICABLE FOR THE CURRENT ASSESSMENT YEAR AND THE ASSESSING O FFICER BE DIRECTED TO THE REWORK THE DISALLOWANCE ON A REASONABLE BASIS. 2. REFERRING TO GROUND NO.1, IT WAS SUBMITTED BY LD . AR THAT BY MISTAKE, IN FORM NO.35 THE DATE OF SERVICE OF ASSESSMENT ORDER WAS WRITTEN AS 16/11/2009. HE SUBMITTED THAT 16/11/2009 IS THE DATE OF ORDER OF AO WHICH WAS SERVED UPON THE ASSESSEE ON 31/12/2009. LD. AR HAS PRODUCED BE FORE US COPY OF THE DEMAND NOTICE ISSUED UNDER SECTION 156 OF INCOME TA X ACT, 1961(THE ACT), WHEREIN ACCORDING TO IN-HOUSE STAMP THE ASSESSMENT ORDER WAS RECEIVED ON 31/12/2009. HE SUBMITTED THAT THE APPEAL BEFORE LD . CIT(A) WAS FILED ON 29/1/2010 AND THUS, THE APPEAL FILED BEFORE LD. CI T(A) WAS WITHIN 30 DAYS OF THE RECEIPT OF ASSESSMENT ORDER. THUS, IT WAS PLEADED BY LD. AR THAT THE APPEAL HAS TO BE RESTORED BACK TO THE FILE OF LD. CIT(A) AS HE HAS DISMISSED THE APPEAL SIMPLY FOR THE REASON THAT THE SAME WAS BELATED ONE. HE S UBMITTED THAT LD. CIT(A) DID NOT ADJUDICATE THE ISSUE RAISED BEFORE HIM ON MERIT S. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). ITA NO.1650/MUM/2011, A.Y. 2007-08 . 3 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. THE DATE OF SERVICE MENTIONED IN FORM NO.35 IS DATE OF ASSESSMENT ORDER. ACCORDING TO IN-HOUSE RECORD OF THE ASSESSE E THE ASSESSMENT ORDER WAS RECEIVED ON 31/12/2009 AND THE APPEAL HAS BEEN FILE D ON 29/1/2010. THEREFORE, THE APPEAL FILED BY THE ASSESSEE BEFORE LD. CIT(A) APPEARS TO BE WITHIN TIME. HOWEVER, FOR VERIFICATION OF THESE FACTS THE MATTE R IS RESTORED BACK TO THE FILE OF LD. CIT(A) TO VERIFY SUCH CONTENTION OF THE ASSESSE E. IF THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT THEN LD. CIT(A) IS DIRECTED TO ADMIT THE APPEAL FILED BY THE ASSESSEE AND ADJUDICATE ALL THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL AS PER PROVISIONS OF LAW AFTER GIVING THE AS SESSEE A REASONABLE OPPORTUNITY OF HEARING. WITH THESE DIRECTIONS WE SET ASIDE THE IMPUGNED ORDER PASSED BY LD. CIT(A) AND RESTORE THIS APPEAL TO HIS FILE WITH THE DIRECTIONS AS HAVE BEEN GIVEN ABOVE. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 02/07/ 2014 ! ' #$ % &'( 02/07/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 02/07/2014 ITA NO.1650/MUM/2011, A.Y. 2007-08 . 4 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS