Appeal details
Counselvise Citation
[2018] 126 COUNSELVISE.COM (IT) 0153 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 10 month(s) 3 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
02-03-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
Not Allotted
Assessment Year
2008-2009
Appeal Filed On
29-04-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI RAJENDRA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 2365 / MUM/ 201 6 ( / ASSESSMENT YEAR: 20 08 - 09 ) TISHMAN SPEYER INDIA PRIVATE LIMITED 3 RD FLOOR, NIC HOLAS PIRAMAL TOWERS, PENINSULA CORPORATE PARK, LOWER PAREL, MUMBAI - 400020 / VS. CIT(A) 8(3)(1), 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AACCT 2829 D ( / APPELLANT ) .. ( / RESPONDE NT ) / DATE OF HEARING : 13 .1 2 .201 7 / DATE OF PRONOUNCEMENT : 02 . 03 .2018 / O R D E R PER AMARJIT SINGH, J M : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 23 . 1 1 .201 5 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 14 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 08 - 09 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LEARNED COMMISSIONER OF INCOME - LAX (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ERSTWHILE DEPUTY COMMISSIONER OF INCOME - TAX 7(3), MUMBAI (HEREINAFTER REFERRED (O AS 'THE ASSESSING REVENUE BY : SHRI V. VIDHYADHAR (DR) ASSESSEE BY: NONE ITA NO. 2365 /M/2016 A.Y. 2008 - 09 . 2 OFFICER') IN REOPENING THE ASSESSMENT UNDER SECTI ON 148 FOR THE ASSESSMENT YEAR 2003 - 09. 2 . THE LEARNED COMMISSIONER OF INCOME - LAX (APPEALS) ERRED IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN DISALLOWING II SUM OF RS,9,03,25,622/ - BEING TECHNICAL AND MANAGEMENT FEES PAID. 3 . THE APPELLANT SU BMITS THAT ASSESSING OFFICER BE DIRECTED 10 DELETE THE DISALLOWANCE OF A SUM OF RS,9,03,25,622/ - BEING 'TECHNICAL AND MANAGEMENT FEE AND TO MODIFY THE ASSESSMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. 4. EACH OF THE ABOVE GROUNDS OF APPEAL ARE INDEPENDENT & WITHOUT PREJUDICE TO EACH OTHER, 5. THE APPELLANT CRAVES LIBERTY TO ADD, TO ALTER AND /OR AMEND THE GROUNDS OF APPEAL AS AND WHEN GIVEN. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 26 .0 8 .20 08 DECL ARING TOTAL INCOME TO THE TUNE OF RS. 6,11,789 / - AND BOOK PROFIT U/S 115JB OF THE ACT OF RS.7,93,03,714/ - . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ACCEPTING THE RETURNED INCOME. THEREAFTER, THE CASE WAS REOPENED U/S 147 OF THE I.T. ACT BY ISSUING NOT ICE U/S 148 OF THE I.T. ACT DATED 06.12.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S 143(2) OF THE ACT WAS ALSO ISSUED AND SERVED UPON THE A SSESSEE. THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF PROPERTY/FACILITIES MANAGEMEN T AND CONSULTANCY SERVICES IN INFRASTRUCTURE DEVELOPMENT SECTOR. THE CASE WAS REOPENED ON THE GROUND OF TECHNICAL AND MANAGEMENT FEES OF RS.9.03,25,622/ - DEBITED BY ASSESSEE C OMPANY IN ITS P&L ACCOUNT . N OTICE WAS ISSUED. AFTER THE REPLY OF THE ASSESSEE , TH E SAID FEE WAS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE AND THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.9,09,37,410/ - . THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASS ESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ITA NO. 2365 /M/2016 A.Y. 2008 - 09 . 3 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE PAID THE SUM OF RS.9, 03,25,622/ - BEING REIMBURSABLE AS TECHNICAL AND MANAGEMENT FEES TO ITS A SSOCIATE COMPANY ( TISHMAN US FOR CERTAIN DEALS) WHICH HAS NOT BEEN MATERIALIZED FROM OWNER OF THE LAND/INVESTORS/DEVELOPER . TISHMAN SPEYER PROPERTY USA (TISHMAN US) AND ICICI VENTURE FUNDS MANAGEMENT COMPANY LTD. HAVING EACH PARTY 50% SHARES IN THE ASSESSE E COMPANY. THE SAID EXPENSES WERE NOT IN CONNECTION WITH THE BUSINESS PURPOSE BECAUSE THE ASSESSEE FAILED TO RECOVER THE SAID AMOUNT FROM ITS ASSOCIATE COMPANY. MOREOVER, THE COMPANY WAS HOLDING 50% STAKE IN THE ASSESSEE COMPANY AND LATER BECOMES 100% INDI RECT SHAREHOLDER AFTER EXIT OF ICICI VENTURES AND DID NOT GET ANY REIMBURSEMENT FROM THE LAND OWNERS. ACCORDINGLY, THE SAID AMOUNT WAS DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSESSEE. MOREOVER, NOTICE WAS SENT TO THE ASSESSEE WHO LEFT THE GIVEN ADD RESS. NO OTHER ADDRESS IS AVAILABLE ON RECORD. THEREFORE, THE ASSESSEE IS BEING PROCEEDED AGAINST THE EXPARTE. THE ASSESSEE FAILED AN APPEAL AGAINST THE ORDER OF THE CIT(A) DATED 23.11.2015 IN WHICH THE CIT(A) HAS CONFIRMED THE ACTION OF THE AO IN DISALLOW ING A SUM OF RS.9,03,25,622/ - BEING TECHNICAL AND MANAGEMENT FEES PAID . T HE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY ON THE BASIS OF THE DECISION OF THE HONBLE CIT(A) IN THE ASSESSEE S OWN CASE FOR THE A.Y.2010 - 11 DATED 23.112015. NOTHING CAME INTO NO TICE ABOUT THE CHANGE OF THE ORDER OF THE CIT(A) DATED 23.11.2015. THE FACTS ARE NOT DISTINGUISHABLE AT THIS STAGE. THE CIT(A) HAS PASSED THE ORDER ON THE BASIS OF THE ORDER OF THE CIT(A) IN THE EARLIER YEAR 2010 - 11 DATED 23.11.2015. NO MATERIAL OF ANY KI ND WAS PRODUCED. THEREFORE, TAKING INTO ACCOUNT, ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW ITA NO. 2365 /M/2016 A.Y. 2008 - 09 . 4 THAT THE ( CIT)A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STA GE. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 02 .0 3 . 201 8 . SD/ - SD/ - ( RAJENDRA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 02. 03 . 201 8 VIJAY / 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. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
