MISS NAZNEEN MINOCHER DUBASH, MUMBAI V. INCOME TAX OFFICER 12(2)(2) AND THE INCOME TAX OFFICER, 17(2)(4), MUMBAI

ITA 1741/MUM/2018

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5268 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 16-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARIDR
• Keywords: Set aside
• Section: 142(1); 143(2); 246A; 246

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.1741/MUM/2018 ASSESSMENT YEAR: 2005-06 MISS NAZNEEN MINOCHER DUBASH, HARBOUR HEIGHTS, BLOCK-A, FLAT-7C, N.A. SAWANT MARG, COLABA, MUMBAI-400005 / VS. INCOME TAX OFFICER-17(2)(4), AAYAKAR BHAVAN, MAHARSHI KARVE MARG, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO . AACPD0777H $ % & / ASSESSEE BY SHRI KETAN VED $ % & / REVENUE BY SHRI S.K. BEPARI-DR / DATE OF HEARING 11/10/2018 & / DATE OF ORDER: 11/10/2018 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 21/11/2017 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ITA NO.1741/MUM/2018 MISS NAZNEEN MINOCHER DUBASH 2 HOLDING THE APPEAL OF THE ASSESSEE AS NOT MAINTAINA BLE AND CONSEQUENT DISMISSAL OF THE SAME. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI KETAN VED, RELIED UPON THE DECISION OF THE TRI BUNAL IN THE CASE OF MAFATLAL INDUSTRIES LTD. VS DCIT (ITA NO.6635/MUM/2013), ORDER DATED 15/05/2015 BY CLAIMI NG THE IDENTICAL ISSUE WAS DECIDED. THE LD. DR, SHRI S. K. BEPARI, DEFENDED THE IMPUGNED ORDER. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE, I AM REPRODUCING HEREUNDER THE RELEVANT PORT ION OF THE AFORESAID ORDER DATED 15/05/2015 FOR READY REFERENC E AND ANALYSIS:- THIS APPEAL FILED BY THE ASSESSEE ON 13.11.2013 IS AGAINST THE ORDER OF THE CIT (A)-20, MUMBAI DATED 20.8.2013 FOR THE ASSESSMENT Y EAR 2003-2004. IN THIS APPEAL, ASSESSEE RAISED 12 GROUNDS IN TOTO AND THE EFFECTIVE GROUNDS READ AS UNDER: '1. DISMISSING THE APPEAL AS 'NOT MAINTAINABLE' BY APPLYING THE PROVISIONS OF SECTION 246A OF THE INCOME TAX ACT 19 61. 2. DEDUCTION OF LICENSE AND TECHNOLOGY FEES OF RS. 3/29,50,658/- HAS NOT BEEN GRANTED. 3. EXCLUSION OF ENTIRE DEP8 INCOME OF RS. B,8~3~943 /- WHILE COMPUTING PROFITS ELIGIBLE FOR DEDUCTION U/S BOHHC 4. RESTRICTING THE DEDUCTION U/S BOHHC TO 50% OF TH E ELIGIBLE PROFITS (WHILE COMPUTING 'BOOK PROFITS' U/S 115J8 OF THE IN COME TAX ACT 1961. 5. CREDIT FOR TAX DEDUCTED AT SOURCE 6. CREDIT FOR TAX PAID ON REGULAR ASSESSMENT ON 1ST ' MARCH, 2006 ITA NO.1741/MUM/2018 MISS NAZNEEN MINOCHER DUBASH 3 7. CREDIT FOR TAX PAID ON 'REGULAR ASSESSMENT DURIN G THE PERIOD DECEMBER; 2010 TO 31ST JULY, 2011. - 8. COMPUTATION OF INTEREST U/S 2348 OF THE INCOME T AX ACT 1961. 9. COMPUTATION OF INTEREST U/S 234C OF THE INCOME T AX ACT 1961. 10. COMPUTATION OF INTEREST U/S 234D OF THE INCOME TAX ACT, 1961. 11. LEVY OF INTEREST U/S 220(2) OF THE INCOME TAX A CT 1961. 12. NON-GRANTING OF INTEREST U/S 244A. ' 2. AT THE VERY OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUND NO.1 OF THE APPEAL AND MENTIONED THAT IT REL ATES TO THE DECISION OF THE CIT (A) IN DISMISSING THE ASSESSEE'S APPEAL AS NOT MAINTAINABLE. BRIEF FACTS IN THIS REGARD ARE THAT THIS IS THE SECOND ROUND OF PR OCEEDINGS BEFORE THE TRIBUNAL. IN THE FIRST ROUND, THE TRIBUNAL VIDE ITS ORDER DAT ED 21.12.2011, SET ASIDE THE ISSUES TO THE FILE OF THE AO AND ISSUED CERTAIN DIR ECTIONS TO THE AO. ASSESSEE IS AGGRIEVED WITH THE ORDER OF THE AO GIVING EFFECT TO SAID ORDER OF THE ITAT (SUPRA). THEREFORE, THE ASSESSEE FILED AN APPEAL BE FORE THE CIT CA) U/S 246A OF THE ACT. ON THESE FACTS, THE CIT (A) HELD THAT SUCH ORDER OF THE AO IS NOT APPEALABLE BEFORE THE CIT (A). AGAINST THE SAID FIN DING OF THE CIT CA), ASSESSEE RAISED THE GROUND NO.1 ON THE ISSUE OF MAI NTAINABILITY OF THE APPEAL. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE ARGUED THAT THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF THE CIT (A) IS AN APP EALABLE ORDER BEFORE THE CIT CA) U/S 246A OF ACT, AS SUCH ORDERS OF THE AO ARE D EEMED AS ASSESSMENT ORDERS. IN ORDER TO SUBSTANTIATE ABOVE, LD COUNSEL FOR THE ASSESSEE FILED A COPY OF THE ORDER OF THE TRIBUNAL, DATED 6.3.2013 IN THE CASE OF SATELLITE TELEVISION REGION LIMITED VS. DEPUTY DIRECTOR OF INCOME TAX IN ITA NOS. 8639 TO 8641/MUM/201O FOR THE AYS 2000-01, 2001-02, 2002-03 . REFERRING TO PARAS 3.3 AND 5 OF THE SAID ORDER OF THE TRIBUNAL DATED 6.3.2 013 (SUPRA), LD COUNSEL DEMONSTRATED THAT THE FINDING OF THE TRIBUNAL FOR T HE PROPOSITION THAT SUCH ORDERS GIVING EFFECT TO THE ORDER OF THE ITAT CONSTITUTES ASSESSMENT ORDER AND THE SAME IS APPEALABLE ORDER BEFORE THE APPELLATE AUTHO RITIES. IN THIS REGARD, LD COUNSEL READ OUT THE PARA 5 OF SAID TRIBUNAL'S ORDE R AND THE SAME IS EXTRACTED AS UNDER: '5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. AS REGARDS THE VIEW OF THE LD CJT (A) THAT ORDERS PASSED BY THE AO U/S 254 OF THE ACT GIVING EFFECT TO THE ORDE R OF THE ITA T CANNOT BE APPEALED AGAINST U/S 246A, IT IS PERTINEN T TO MENTION THAT THE JURISDICTIONAL HIGH COURT IN THE CASE OF CSTEX OIL REFINING INDIA (LTD) VS. COMMISSIONER OF INCOME TAX HAS HELD THAT FRESH ORDER TO GIVE EFFECT TO AN APPELLATE ORDER IS ALSO AN ASSESS MENT ORDER AND CAN BE A SUBJECT MATTER OF APPEAL BEFORE THE APPELL ATE AUTHORITIES. RELYING ON THE SAID DECISION, WE ARE OF THE VIEW TH AT THE RATIO OF THE LD CJT THAT THE APPEAL BEFORE HIM BEING NOT MAINTAI NABLE AND THUS BECOMES VOID AB INITIO IS LEGALLY UNTENABLE AND ALS O AGAINST THE SETTLED PRINCIPLE OF LAW. ' 3. FROM THE ABOVE, IT IS EVIDENT THAT THE TRIBUNAL FOR COMING TO THE SAID CONCLUSIONS, RELIED ON THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF CALTEX OIL REFINING INDIA ( LTD) VS. CIT [1993J 202 ITR 375. ON PERUSAL OF THE SAID JUDGMENT, IT IS THE FIN DING OF THE JURISDICTIONAL HIGH COURT THAT THE ORDERS GIVING EFFECT TO THE DIRECTIO NS OF THE APPELLATE ORDERS ARE MAINTAINABLE UNDER CLAUSE (C) TO SECTION 246 OF THE ACT. THE SAID JUDGMENT IS APPLICABLE FOR THE AYS 1970-71 AND 1972-73 UNDER TH E OLD PROVISIONS WHICH IS PARA MATERIA TO SECTION 246 OF THE ACT. CONSIDERING THE ORDER OF THE CIT CA) ON THE ISSUE OF MAINTAINABILITY OF APPEAL NEEDS TO BE REVERSED. CONSEQUENTLY, WE ITA NO.1741/MUM/2018 MISS NAZNEEN MINOCHER DUBASH 4 REMAND THIS ISSUE TO THE FILE OF THE CIT CA) WITH A DIRECTION TO ADMIT THE APPEAL AND ADJUDICATE THE ISSUES RAISED BY THE ASSESSEE ON MERITS MENTIONED IN GROUND NOS. 2 TO 12, IF ANY. FOR THIS, CIT CA) MAY CALL FOR REMAND REPORT, IF ANY, FROM THE AO IN ACCORDANCE WITH THE PROVISIONS OF TH E ACT. ACCORDINGLY, ALL THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. 2.2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DE CLARED TOTAL INCOME OF RS.5,18,390/- IN HER RETURN, FILED ON 26/10/2005, WHICH WAS PROCESSED UNDER SECTION 143(1 ) OF THE ACT. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS, ACCORDINGLY, NOTICE UNDER SECTION 143(2) AND 142(1) OF THE ACT, ALONG WITH QUESTIONNA IRE WERE ISSUED TO THE ASSESSEE. THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FURNISHED THE DET AILS AS CALLED FOR AS IS EVIDENCED FROM ASSESSMENT ORDER IT SELF. WHILE FRAMING THE ASSESSMENT, THE LD. ASSESSING OFFICER F OUND THAT THE ASSESSEE DEBITED RS.23,660/- ON ACCOUNT OF TELEPHONE/MOBILE EXPENSES. THE TELEPHONE WAS FOUND TO BE INSTALLED AT THE HOUSE OF THE ASSESSEE, THUS, SUCH EXPENSES AMOUNTING TO RS.8,741/- WERE HELD TO BE NOT PERTAIN ING TO THE BUSINESS AND THUS ADDED BACK TO THE INCOME OF T HE ASSESSEE. THE ASSESSEE ALSO DEBITED RS.64,315/- AS CONVEYANCE EXPENSES, OUT OF WHICH THE LD. ASSESSING OFFICER DISALLOWED RS.15,000/- FOR WANT OF VERIFICATION. TH E ASSESSEE ITA NO.1741/MUM/2018 MISS NAZNEEN MINOCHER DUBASH 5 ALSO DEBITED RS.38,480/- AS MISCELLANEOUS EXPENSES OUT OF WHICH THE AMOUNT OF RS.10,000/- WAS DISALLOWED FOR WANT OF VERIFICATION. AS PER THE LD. ASSESSING OFFICER, TH E GROSS AMOUNT OF RS.35,021/- WAS RECEIVED ON INTEREST ON D EPOSIT, WHICH WAS ADDED BACK. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), VIDE ORDER DAT ED 19/02/2009, SO FAR AS, THE DISALLOWANCE WITH RESPEC T TO TELEPHONE EXPENSES WAS RESTRICTED TO 2,366/- AND TH E DISALLOWANCE OF RS.15,000/- OUT OF CONVEYANCE EXPEN SES, THE ADDITION WAS DELETED. SO FAR AS, THE AD-HOC DISALLO WANCE OF RS.10,000/- OUT OF MISCELLANEOUS EXPENSES WAS ALSO DELETED. THE ADDITION OF RS.35,021/- AS INCOME FROM OTHER SO URCES, RECEIVED FROM DEPOSITS WAS REJECTED. DURING RECTIFI CATION ORDER PASSED UNDER SECTION 154, AS PER THE REVENUE WAS NEVER PASSED AND GOT TIME BARRED. THE ASSESSEE, BEF ORE THIS TRIBUNAL RELIED UPON THE DECISION FROM HON'BLE JURI SDICTIONAL HIGH COURT CALTEX OIL REFINING INDIA LTD. VS CIT (2 02 ITR 375)(BOM.), WHEREIN, THE HON'BLE HIGH COURT HELD TH AT THE ORDERS GIVING EFFECT TO THE DIRECTION OF THE APPELL ATE ORDER ARE MAINTAINABLE UNDER CLAUSE-(C) TO SECTION 246 OF THE ACT. RESPECTFULLY, FOLLOWING THE AFORESAID FROM HON'BLE ITA NO.1741/MUM/2018 MISS NAZNEEN MINOCHER DUBASH 6 JURISDICTIONAL HIGH COURT, WE REMAND THIS FILE TO T HE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WITH A DIRE CTION TO ADJUDICATE THE APPEAL OF THE ASSESSEE AND DECIDE ON MERIT. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 11/10/2018. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 11/10/2018 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI