DCIT-3(3)(2), MUMBAI V. M/ TRAVEL CORPORATION (INDIA) LTD., MUMBAI

ITA 1750/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3830 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 25-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 37(1); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI RAJESH KUMAR (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1750/MUM/2019 ASSESSMENT Y EAR: 2011 - 2012 THE DY. COMMISSIONER OF INCOME TAX 3(3)(2), ROOM NO. 628, 6 TH FLOOR, AAYAKAR BHAV AN, M.K. ROAD, MUMBAI - 400020 VS. M/S TRAVEL CORPORATION (INDIA) LTD., 1 ST FLOOR, CHANDERMUKHI BLDG., NARIMAN POINT, MUMBAI - 400020 PAN: AAACT6856C (APPELLANT) (RESPONDENT) REVENUE BY : MS. KAVITA KAUSHIK (DR) ASSESSEE BY : MS. URVI MEHTA ( A R ) DATE OF HEARING: 20/02/2020 DATE OF PRONOUNCEMENT: 20 / 02/2020 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 25.01.2019 PASSED BY THE COMM ISSIONER OF INCOME TAX (APPEALS) - 8 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2011 - 12 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) IS JU STIFIED IN RESTRICTING THE DISALLOWANCE MADE IN RESPECT OF FOREIGN TRAVEL EXPENDITURE TO RS. 7,03,544/ - INSTEAD OF RS. 28,14,176/ - MADE BY THE AO, WITHOUT APPRECIATING THAT THE ASSESSEE DID NOT PROVIDE ANY DOCUMENTARY EVIDENCES IN SUPPORT OF ITS CLAIM DURI NG THE ASSESSMENT PROCEEDINGS AS WELL 2 ITA NO. 1750 / MUM/2019 ASSESSMENT YEAR: 2011 - 12 DURING THE APPELLATE PROCEEDINGS AND THE HENCE THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. CALCUTTA AGENCY LTD. ( 19 ITR 191) WHEREIN IT IS HELD THAT THE ONUS OF PROVING NECESSARY FACT S IN ORDER TO AVAIL THE DEDUCTION U/S 37 (1) IS ON THE ASSESSEE, IS CLEARLY APPLICABLE TO THE FACTS OF THE INSTANT CASE UNDER CONSIDERATION.? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) IS JUSTIFIED IN RESTRICTING THE DISALLOWANCE MADE IN RESPECT OF ADVERTISEMENT AND BUSINESS PROMOTION EXPENDITURE TO RS. 12,46,379/ - WITHOUT APPRECIATING THAT THE ASSESSEE DID NOT PROVIDE ANY DOCUMENTARY EVIDENCES IN SUPPORT OF ITS CLAIM DURING THE ASSESSMENT PROCEEDINGS AS WELL DURI NG THE APPELLATE PROCEEDINGS AND THE HENCE THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. CALCUTTA AGENCY LTD. (19 ITR 191) WHEREIN IT IS HELD THAT THE ONUS OF PROVING NECESSARY FACTS IN ORDER TO AVAIL THE DEDUCTION U/S 37(1) IS ON THE ASSESSEE, IS CLEARLY APPLICABLE TO THE FACTS OF THE INSTANT CASE UNDER CONSIDERATION. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE POINTED OUT THAT THE TAX EFFECT OF THE RELIEF GRA NTED BY THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) IS BELOW RS. 5 0 LACS AND AS PER CIRCULAR NO.17 OF 2019 DATED 08.08.2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) , DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA , THE CBDT HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL S BEFORE THE ITAT FROM THE EXISTING LIMIT OF RS. 20 LACS TO RS. 50 LACS . IN THE LIGHT OF THE AFORESAID FACTS, THE LD. COUNSEL SUBMITTED THAT THIS APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. THE LD. COUNSEL FURNISHED CALCULATION SHEET, AS PER WHIC H, THE TAX EFFECT IN THIS CASE IS RS. 44,27,244 / - . 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ADMITTED THAT TH IS APPEAL IS NOT MAINTAINABLE IN LIGHT OF THE AFORESAID CIRCULAR ISSUED BY THE CBDT, HOWEVER, SUBMITTED THAT THE DEPARTMENT MAY BE GIVEN LIBERT Y TO FILE 3 ITA NO. 1750 / MUM/2019 ASSESSMENT YEAR: 2011 - 12 MISCELLANEOUS APPLICATION IN CASE IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE. 5. WE HAVE GONE THROUGH THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) A ND THE GROUNDS OF APPEALS. AS POINTED OUT BY THE LD. COUNSEL, THE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS THE AFORESAID APPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE/WITHDRAWN . HOWEVER, IN CASE, IT IS FOUND THAT THE CA SE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE, THEN THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER OF THE TRIBUNAL FOR DECIDING THE APPEAL AFRESH ON MERITS. IN THE RESULT, AP PEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2011 - 2012 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH FEBRUARY , 2020 . SD/ - SD/ - ( RAJESH KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 20 / 02/2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED T O : 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) , / ITAT, MUMBAI