LIKPROOF INDIA P.LTD, MUMBAI V. ADDL CIT RG 1(2), MUMBAI

ITA 1801/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92672 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 08-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-03-2013
• Court: TRIBUNAL
• Assessee Lawyers: MILING BAKHAI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.1801/M/2013 (AY:2007 - 2008 ) LIKPROOF INDIA PRIVATE LTD., CECIL COURT, 2 ND FLOOR, M. BHUSAN ROAD, NEXT TO REGAL CINEMA, COLABA, MUMBAI - 01. / VS. ADDL CIT, RANGE 1(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20. ./ PAN : AAACL1873B ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MILING BAKHAI / RESPONDENT BY : SHRI JEEVAN LAL LAVIDIYA / DATE OF HEARING : 08.06.2015 / DATE OF PRONOUNCEMENT : 08.06.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 6.3.2013 IS AGAINST THE ORDER OF THE CIT (A) 7, MUMBAI DATED 6.11.2012 FOR THE ASSESSMENT YEAR 2007 - 2008. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF SERVICE TAX AMOUNTING TO RS. 8,94,899/ - WRITTEN OFF DURING THE YEAR ON THE GROUND THAT CLAIM IS COMPLETELY UNJUSTIFIED AND INCORRECT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE DISALLOWANCE MADE OUT TO B E DELETED. 2. THE ONLY ISSUE RAISED IN THIS APPEAL RELATES TO THE DISALLOWANCE OF SERVICE TAX AMOUNTING TO RS. 8,94,899/ - . BRIEFLY STATED, RELEVANT FACTS IN THIS REGARD ARE THAT THE ASSESSEE PAID SERVICE TAX AND MADE A CORRESPONDENT WITH THE GOVERNMENT AUTHORITIES FOR REFUND OF THE SAID EXCESS PAYMENTS. IN RESPONSE, ASSISTANT COMMISSIONER OF SERVICE TAX, DIVISION - 1, OLD C USTOMS HOUSE, MUMBAI DIRECTED THE ASSESSEE VIDE LETTER DATED 21.11.2006 TO RESUBMIT THE REFUND CLAIM WITH ALL THE RELEVANT DOCUMENTS AND THE DATE OF RE - SUBMISSION WILL BE CONSIDERED AS THE DATE OF FILING OF REFUND APPLICATION. PAGE 3 OF THE PAPER BOOK IS RELEVANT IN THIS REGARD. AN AMOUNT OF RS. 8,35,584/ - IS THE SUBJECT MATTER OF REFUND IN THIS CORRESPONDENCE. CONSIDERING THE ABOVE DIRECTION OF THE CUSTOMS AUTHORITIES TO THE EXTENT OF FILING THE 2 REVISED CLAIM, ASSESSEE CHOOSE NOT TO MAKE A REVISED CLAIM AT ALL. FURTHER, HE WROTE OFF THE SAID CLAIM IN THE BOOKS OF ACCOUNT AS BUSINESS LOSS OF THE ASSESSEE. DURING THE ASSESSMENT PR OCEEDINGS, AO DID NOT ALLOW THE SAID CLAIM, ACCORDINGLY DISALLOWED THE CLAIM OF THE ASSESSEE. MATTER TRAVELLED TO THE FIRST APPELLATE AUTHORITY. EVEN BEFORE THE CIT (A), ASSESSEE COULD NOT IMPROVE HIS CASE, AND THEREFORE, CIT (A) DISMISSED THE ASSESSEES APPEAL ON THIS GROUND. AGGRIEVED, ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. DURING PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. 4. ON THE OTHER HAND, LD DR APPEARING FOR THE REVENUE RE LIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON HEARING THE LD REPRESENTATIVES OF BOTH THE PARTIES AND ON PERUSAL OF T HE CORRESPONDENCE AVAILABLE ON RECORD, ESPECIALLY PAGE 3 OF THE PAPER BOOK, A LETTER DATED 21.11.2006, WE FIND, FOR ALL GOOD REASONS, ASSESSEE DID NOT CLAIM THE REFUND FROM THE GOVERNMENT AND TO THAT EXTENT , THE AMOUNT IS LYING WITH THE GOVERNMENT, NOT REF UNDED TO THE ASSESSEE. THEREFORE, WE FIND SUFFICIENT REASON FOR ASSESSEES DECISION IN WROTE - OFF OF THE SAID REFUND AMOUNT OF RS. 8,35,584/ - . IN ALL FAIRNESS, WE FIND ASSESSEE IS ENTITLED TO THE DEBIT OF THE SAID AMOUNT. TO THAT EXTENT, ASSESSEE GETS RE LIEF. COMING TO THE BAL ANCE OF AMOUNT OF RS. 59 , 315 / - (RS. 8,94,899 RS. 8,35,584), WE FIND NO EVIDENCE WHATSOEVER , WAS BROUGHT ON TO THE RECORD S JUSTIFYING WRITE - OFF IN BOOKS OF ACCOUNT. TO THAT EXTENT, WE FIND THE REQUIREMENT OF CONFIRMING THE ORDER O F THE CIT (A). ACCORDINGLY, ASSESSEE IS ENTITLED TO PART RELIEF. THUS, THE GROUND RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2015. SD/ - SD/ - (I.P. BANSAL) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 8.6 .2015 3 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI