ACIT RG 17(3), MUMBAI V. WESTERN INDIA MARINE CORPORATION, MUMBAI

ITA 1653/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88486 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 05-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAVAN KUMAR BEER LA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BE NCH, MUMBAI , ! '# $ $ $ $ , '# % BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./I .T.A. NO. 1653/MUM/2013 ( & & & & / ASSESSMENT YEAR : 2008-09 THE ACIT, RANGE-17(3), PIRAMAL CHAMBERS, PAREL, MUMBAI-400 12 / VS. M/S. WESTERN INDIA MARINE CORPN., 11, GANAPATHI BAUG, SEWREE, MUMBAI-400 015 #' ! ./ ( ./ PAN/GIR NO. : AAAFW 0148H ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , / APPELLANT BY: SHRI PAVAN KUMAR BEERLA *+') - , / RESPONDENT BY: SHRI NISHANT THAKKAR - ./! / DATE OF HEARING :05.03.2015 01& - ./! / DATE OF PRONOUNCEMENT :05.03.2015 '2 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-16,MUMBAI DT. 5.12.2012 PERTAINING TO A SSESSMENT YEAR 2008-09. ITA NO. 1653/M/2013 2 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS. 14,70,629/- ON ACC OUNT OF PAYMENT TO DOCK LABOUR IN CASH EVEN THOUGH THE AO HAD CORRECTL Y HELD THAT THIS PAYMENT WAS NOTHING BUT SPEED MONEY. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS CLA IMED DEDUCTION OF LABOUR CHARGES PAID TO THE TUNE OF RS. 58,82,519/-. ON PERUSAL OF THE DETAILS, THE AO NOTICED THAT AN AMOUNT OF RS. 14,70 ,629/- IS ALLEGED TO HAVE BEEN PAID TO MAZGAON DOCK AND MUMBAI PORT TRUS T WORKERS IN CASH AND ARE INCURRED AT THE DOCKS FOR PAYMENTS MADE TO DIFFERENT LABOURERS EMPLOYED FOR DIFFERENT JOBS. THE AO PROPOSED TO DI SALLOW THE SAME. IT WAS POINTED OUT BY THE ASSESSEE THAT THE TRIBUNAL I N ITA NOS. 695 & 685/M/2009 FOR A.YRS 2000-01 AND 2005-06 HAS RESTRI CTED THE ADDITION TO 25% OF SUCH EXPENSES INCURRED IN CASH. THIS PLEA OF THE ASSESSEE WAS DISMISSED BY THE AO STATING THAT THE REVENUE HAS PR EFERRED AN APPEAL BEFORE THE JURISDICTIONAL HIGH COURT. THE AO COMPL ETED THE ASSESSMENT BY DISALLOWING RS. 14,70,629/-. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A). THE LD. CIT(A) HAS CONSIDERED THIS ISSUE AT PARA-2.1 OF HIS ORDER WHEREIN HE HAS FOLLOWED THE DECISION OF THE TRIBUNAL AND DIRECTED THE AO TO RESTRICT THE DISALLOWANCE TO 25% OF SUCH EXPENDITURE. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE DECISION OF THE TRIBUNAL HAVE BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT VIDE ORDER DT. 1.4.2014 I N INCOME TAX APPEAL NO. 3566 OF 2010, 668 OF 2011 AND 486 OF 2011 WHERE IN THE HONBLE ITA NO. 1653/M/2013 3 HIGH COURT HAS HELD THAT THE TRIBUNAL ON THE FACTS AND THE CIRCUMSTANCES RESTRICTED THE DISALLOWANCE TO 25%. THUS, THE ATTE MPT OF THE REVENUE TO REASSESS AND RE-APPRECIATE THIS FACTUAL MATERIAL CA NNOT BE UPHELD BY US. THERE IS ENOUGH MATERIAL TO SHOW THAT THE AMOUNT IS PAID IN CASH AND EQUALLY, THE PRACTICE PREVAILING IN THE PORT TO PAY SUCH MONEY IN CASH. NOW, THAT IT HAS BEEN SETTLED IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE BY THIS DECISION OF THE HONBLE JURISDICTIO NAL HIGH COURT. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE W ITH THE FINDINGS OF THE LD. CIT(A). 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 5 TH MARCH, 2015 SD/- SD/- (VIVEK VARMA ) (N.K. BILLAIYA) '# /JUDICIAL MEMBER ! '# / ACCOUNTANT MEMBER MUMBAI; 3' DATED :5 TH MARCH, 2015 . . ./ RJ , SR. PS ITA NO. 1653/M/2013 4 '2 '2 '2 '2 - -- - *. *. *. *. 4&. 4&. 4&. 4&. / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 67 *. , , / DR, ITAT, MUMBAI 6. 78 9 / GUARD FILE. '2 '2 '2 '2 / BY ORDER, +. *. //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI