DCIT 10(1), MUMBAI V. ING INVESTMENT MANAGEMENT (I) P.LTD, MUMBAI

ITA 1947/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88210 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 05-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ARPIT AGARWAL
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, M UMBAI BEFORE S/SHRI N. K. BILLAIYA, (AM) AND AMIT SHUKL A, (JM) . . , , , ./I.T.A. NO.1925/MUM/2013 ( !' #! / ASSESSMENT YEAR 2009-10) ING INVESTMENT MANAGEMENT (INDIA) PRIVATE LIMITED, 805/806, WINDSOR, OFF CST ROAD, KALINA SANTACRUZ (E), MUMBAI. / VS. ASSTT. COMMISSIONER OF INCOME TAX, WARD 10(1), AAYAKAR BHAVAN, M K MARG, MUMBAI-400020 ( $% / APPELLANT) .. ( &' $% / RESPONDENT) ./I.T.A. NO.1947/MUM/2013 ( !' #! / ASSESSMENT YEAR 2009-10) DY. COMMISSIONER OF INCOME TAX, WARD 10(1), 455,AAYAKAR BHAVAN, 4 TH FLOOR, M K MARG, MUMBAI-400020 / VS. ING INVESTMENT MANAGEMENT (INDIA) PRIVATE LIMITED, 601/602, WINDSOR, OFF CST ROAD, VIDYANAGARI MARG, KALINA, SANTACRUZ (E), MUMBAI-400098. ( $% / APPELLANT) .. ( &' $% / RESPONDENT) $ ./ () ./PAN/GIR NO. :AAACI4057N $% * / REVENUE BY SHRI KISHAN VYAS &' $% + * / ASSESSEE BY SHRI DHANESH BAFNA AND MR. ARPIT AGARWAL + , / DATE OF HEARING : 5.2.2015 -.#' + , /DATE OF PRONOUNCEMENT : 5.2.2015 / O R D E R PER N. K. BILLAIYA (AM) THESE ARE THE CROSS-APPEALS BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF THE LD.CIT(A)-21, MUMBAI DATED 20.12.2012 PERTAINING TO THE ASSESSMENT YEAR 2009-10. 1947 & 1925/MUM/2013 2 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE B EING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF C ONVENIENCE. I.T.A. NO.1947/MUM/2013 (BY REVENUE) 3. THE REVENUE HAS RAISED THREE SUBSTANTIVE GROUNDS OF APPEAL. AT THE VERY OUTSET, THE LD. COUNSEL OF THE ASSESSEE BROUGHT TO OUR NOTICE THE EARLIER ORDER OF THE TRIB UNAL IN ASSESSEES OWN CASE AND STATED THAT THE ISSUE RAIS ED BY THE REVENUE IS DECIDED BY THE TRIBUNAL IN EARLIER YEAR IN ASSESSEES OWN CASE TO WHICH THE LD.DR FAIRLY CONCE DED. 4. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CAS E FOR THE EARLIER ASSESSMENT YEAR. WE FIND THAT THE FIRST GROUND REL ATES TO THE DELETION OF ADDITION ON ACCOUNT OF MUTUAL FUNDS EXPENSES AMO UNTING TO RS.24,38,85,031/-. WE FIND THAT THE SIMILAR ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ING I NVESTMENT MANAGEMENT (INDIA) PVT.LTD. V/S ACIT IN ITA NO.2854 /MUM/2011 AND 2843/MUM/2011 (AY-2006-07 &2007-08) ORDER DATED 21. 2.2014. THIS ISSUE WAS CONSIDERED BY THE TRIBUNAL IN PARA 4.1 OF ITS ORDER AND VIDE PARA 4.2, THE TRIBUNAL DELETED THE ADDITION AND DIS MISSED THE APPEAL OF THE REVENUE ON THIS COUNT. RESPECTFULLY FOLLOWI NG THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL GROUND NO. 1 AND WITH ALL ITS SUB-GROUNDS IS DISMISSED. 1947 & 1925/MUM/2013 3 5. GROUND NO.2 RELATES TO DELETION OF THE FOREIGN T RAVEL EXPENSES. SIMILAR DISALLOWANCE WAS CONSIDERED BY THE TRIBUNA L IN ASSESSMENT YEAR 2003-04 IN ITA NO.1571/MUM/2008. THE ISSUE HAS BEEN CONSIDERED IN PARA 6.3 OF THE ORDER AND VIDE PARA 7 , THE TRIBUNAL CONFIRMED THE FINDINGS OF THE LD.CIT(A) AND DISMISS ED THE REVENUES APPEAL ON THIS COUNT. RESPECTFULLY FOLLOWING THE D ECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL, GROUND NO.2 WITH ITS ALL SUB-GROUNDS IS DISMISSED. 6. GROUND NO.3 RELATES TO THE DELETION OF THE ADDIT ION ON ACCOUNT OF INFORMATION TECHNOLOGY EXPENSES OF RS.3.42 CRORE S. AN IDENTICAL ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ASSESSMEN T YEAR 2006-07 QUA IN ITA NO.2854/MUM/2011 AND 2843/MUM/2011 (SUP RA). THIS ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN PARA 6 OF ITS ORDER AND VIDE PARA NO.6.1, THE TRIBUNAL FOLLOWED THE ORDER OF THE SPECIAL BENCH OF DELHI TRIBUNAL IN THE CASE OF AMWAY IND IA ENTERPRISE, 111 ITD 112 (DEL) (SB) AND RESTORED THE MATTER TO THE F ILE OF THE AO WITH A DIRECTION TO FOLLOW THE DIRECTION OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2004-05 IN ASSESSEES OWN CASE. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL, WE RESTORE THIS ISSUE TO THE FILE OF THE AO TO DECIDE THE ISSUE AFR ESH IN THE LIGHT OF THE DIRECTIONS GIVEN BY THE TRIBUNAL FOR ASSESSMENT YEA R 2004-05 AND 2006-07. THE THIRD GROUND WITH ITS SUB-GROUNDS IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 1947 & 1925/MUM/2013 4 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED. I.T.A. NO.1925/MUM/2013 (BY ASSESSEE) THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO DISALLOWANCE OF REIMBURSEMENT OF OFFICE LICENSE FEE S AMOUNTING TO RS.11,52,196/- UNDER SECTION 40(A)(I A) OF THE INCOME TAX ACT, 1961. AN IDENTICAL ISSUE CAME UP FOR ADJUDICATION BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2007-08 IN ITA NO.2853/MUM/2011. T HE TRIBUNAL HAS CONSIDERED THIS ISSUE IN PARA 8 OF ITS ORDER, WHEREIN IT HAS ADMITTED THAT THE ADDITIONAL EVIDENCE IN THE FO RM OF TDS CERTIFICATE AND IN PARA 8.1 RESTORED THE MATER TO T HE FILE OF THE AO FOR FRESH ADJUDICATION AFTER CONSIDERING THE ADDITIONAL EVIDENCE. FOR THIS YEAR ALSO, THE ASSESSEE HAS FILED THE ADDITIONAL EV IDENCE IN THE FORM OF TDS CERTIFICATE. ADMITTING THE ADDITIONAL EVIDEN CE IN THE LIGHT OF FINDINGS OF THE TRIBUNAL IN THE EARLER YEARS. WE RESTORE THIS ISSUE TO THE FILE OF THE AO TO BE DECIDED AFRESH AFTER CONS IDERING THE ADDITIONAL EVIDENCE AND AFTER ALLOWING THE REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1947 & 1925/MUM/2013 5 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 5TH FEB, 2015 . -.#' / 0 1 5TH FEB, 2015 . + 2 3 SD SD ( / AMIT SHUKLA ) ( . . , / N. K. BILLAIYA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 5TH FEB,2015. . . ./ SRL , SR. PS ! '#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &' $% / THE RESPONDENT. 3. ( ) / THE CIT(A)- CONCERNED 4. / CIT CONCERNED 5. 67 2 &8 , , 8 ' , / DR, ITAT, MUMBAI CONCERNED 6. 2 9! : / GUARD FILE. / BY ORDER, TRUE COPY ; ( (ASSTT. REGISTRAR) , 8 ' , /ITAT, MUMBAI