ACIT 17(3), MUMBAI V. SANE & DOSHI ENTERPRISES, MUMBAI

ITA 2511/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1333 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 07-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A MOHAN DR
• Keywords: Business income; Question of law

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, J MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.2511/MUM/2017 ASSESSMENT YEAR: 2013-14 ACIT-17(3), ROOM NO.137, 1 ST FLOOR, AAYAKAR BHAVAN, M. K. MARG, MUMBAI-400020 / VS. M/S SANE & DOSHI ENTERPRISES, 12, ALI CHAMBERS, TAMARIND LANE, FORT, MUMBAI-400023 ( !'# $ /ASSESSEE) ( / REVENUE) PAN. NO . AAAFS6687D % & $ ' / DATE OF HEARING : 21/08/2018 & $ ' / DATE OF ORDER: 21/08/2018 ! / REVENUE BY SHRI A. MOHAN- DR !'# $ ! / ASSESSEE BY SHRI RUTUJA N. PAWAR ITA NO.2511/MUM/2017 M/S SANE & DOSHI ENTERPRISES 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 18/01/2017 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND RAISED BY THE REVENUE PERTAINS TO DIRECTING THE LD. ASSESSING OFFICER TO TREAT THE RENTAL INCOM E, DERIVED BY THE ASSESSEE, AS INCOME FROM HOUSE PROPERTY AN D ALLOWING THE DEDUCTION UNDER SECTION 24(A) OF THE I NCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AS AGAINST THE TREA TMENT OF THE SAME AS BUSINESS INCOME IGNORING THE FACTUAL MATR IX. 2. DURING HEARING, SHRI A. MOHAN, LD. DR, ADVANCED ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED BY DEFENDING THE ADDITION MADE BY THE LD. ASSESSING OF FICER. ON THE OTHER HAND, RUTUJA N. PAWAR, LD. COUNSEL FOR TH E ASSESSEE, CLAIMED THAT THE IMPUGNED ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL (ITA NO.1801 & 1802/MUM/2016), ORDER DATED 20/12/2017. T HIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE REVENUE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION ITA NO.2511/MUM/2017 M/S SANE & DOSHI ENTERPRISES 3 FROM THE ORDER OF THE TRIBUNAL DATED 20/12/2017 FOR READY REFERENCE AND ANALYSIS:- THESE TWO APPEALS ARE FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2012-13 AND 2011-12 RESPECTIVELY A GAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -28, MUMBAI DATED 22.01.2016. 2. IN BOTH THESE APPEALS COMMON GROUNDS WERE RAISE D BY THE REVENUE EXCEPT FOR THE FIGURES, IN HOLDING THAT THE RENTAL INCOME RECEIVED BY THE ASSESSEE ON UNSOLD PREMISES AS INCOME FROM HOUSE PROPERTY AS AGAINST THE ACTION OF THE ASSESSING OFFICER IN ASSESSING TH E SAID INCOME UNDER THE HEAD INCOME FROM BUSINESS. 3. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET SUBMITS THAT THE ISSUE IN APPEAL IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2000-2001 TO 2008-09 BY OR DER DATED 09.04.2015 WHEREIN THE HON'BLE JURISDICTIONAL HIGH COURT HAD UPHELD THE ORDER OF THE TRIBUNAL IN HOLDI NG THAT THE INCOME FROM SUCH PROPERTY IS ASSESSABLE UNDER T HE HEAD INCOME FROM HOUSE PROPERTY BUT NOT UNDER THE HEAD I NCOME FROM BUSINESS AND DISMISSED THE APPEALS FILED BY TH E REVENUE HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW ARISES. COPY OF THE ORDER IS PLACED ON RECORD. 4. LD. DR FAIRLY SUBMITTED THAT THE ISSUE IN APPEA L IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE HON'BLE BO MBAY HIGH COURT. 5. WE HAVE HEARD BOTH THE PARTIES AND P ERUSED THE ORDER OF THE HON'BLE BOMBAY HIGH COURT WHICH IS PLACED ON RECORD. ON A READING OF THE SAID ORDER WE FIND T HAT THE HON'BLE COURT HELD THAT THE INCOME FROM PROPERTY IS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERT Y. THIS ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT IS F OLLOWED BY THE LD.CIT(A) IN BOTH THESE APPEALS. IN THE CIRCUMS TANCES WE DO NOT SEE ANY VALID REASON TO INTERFERE WITH THE O RDERS OF THE LD.CIT(A). THUS, WE REJECT THE GROUNDS OF THE REVEN UE. 6. IN THE RESULT BOTH THE APPEALS OF THE REVENUE AR E DISMISSED. 2.2. WE FIND THAT IN THE AFORESAID ORDER, THE TRIB UNAL HAS FOLLOWED THE DECISION FROM HON'BLE JURISDICTION AL HIGH ITA NO.2511/MUM/2017 M/S SANE & DOSHI ENTERPRISES 4 COURT IN THE CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 2000- 01 TO 2008-09, ORDER DATED 09/04/2015, WHEREIN, HON 'BLE HIGH COURT UPHELD THE ORDER OF THE TRIBUNAL HOLDING THAT INCOME FROM PROPERTY IS ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND NOT UNDER THE HEAD BUSINE SS INCOME BY DISMISSING THE APPEAL OF THE REVENUE, TH US, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. COMMISSIO NER OF INCOME TAX (APPEAL), RESULTANTLY, THIS GROUND OF TH E REVENUE IS DISMISSED. 3. THE NEXT GROUND RAISED BY THE REVENUE PERTAINS TO DIRECTING TO DELETE THE AMOUNT OF RS.3,24,432/- ON ACCOUNT OF GENERATOR DIESEL AND MAINTENANCE EXPENSES WITHOUT APPRECIATING THE GENUINENESS OF THE CLAIM AND BUSIN ESS EXPEDIENCY IN RESPECT OF THESE EXPENSES. 3.1. THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER OF THE LD. COMMISSIONER OF I NCOME TAX (APPEAL) DATED 22/01/2016 (ASSESSMENT YEAR 2012-13) (PAGE-3 AND PARA-3), WHEREIN, IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AND NO APPEAL HAS BEEN FILED AGAINST THAT ORDER BY THE REVENUE. THE LD. DR THOUGH DEFEND ED THE ITA NO.2511/MUM/2017 M/S SANE & DOSHI ENTERPRISES 5 ADDITION BUT DID NOT CONTROVERT THE FACTUAL MATRIX AS CLAIMED ABOVE. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE ASSESSEE CLAIMED AN AMOUNT OF RS.4,64,316/- TOW ARDS GENERATOR DIESEL AND MAINTENANCE CHARGES (WHICH WER E DISALLOWED BY THE LD. ASSESSING OFFICER FOR WANT OF EVIDENCES SUCH AS BILLS/INVOICES/THIRD PARTY EVIDENCES) FOR A SSESSMENT YEAR 201-13 AND THE FIRST APPELLATE AUTHORITY HAS D EALT WITH THE ISSUE IN PARA-5.3, WHEREIN, IT WAS HELD AS UNDE R:- THESE ARE AGAINST THE ACTION OF THE ASSESSING OFFI CER IN DISALLOWING THE GENERATOR DIESEL & MAINTENANCE EXPE NSES OF RS.4,64,316/-. THE ASSESSING OFFICER MADE THIS DISA LLOWANCE SOLELY ON THE GROUNDS THAT THE APPELLANT FURNISHED ONLY THE LEDGER ACCOUNT OF THESE EXPENSES AND THE BILLS VOUC HERS ETC WERE NOT PRODUCED BEFORE HIM. IN APPEAL, THE APPEL LANT HAS PRODUCED FULL DETAILS OF THIS EXPENSE INCLUDING BIL LS AND VOUCHERS. I FIND THAT THE MAJORITY OF THE EXPENDITU RE IS ON ACCOUNT OF PURCHASE OF DIESEL FOR RUNNING THE GENSE T. A SMALL PORTION IS TOWARDS MAINTENANCE. I AM OF THE OPINION THAT THE GRIEVANCE OF THE ASSESSING OFFICER HAS BEEN SUFFICI ENTLY MET BY THE APPELLANT. ACCORDINGLY, THE DISALLOWANCE OF RS .4,64,316/- IS DELETED. GROUNDS 6 & 7 ARE ALLOWED. WE NOTE THAT IN THE REVISED STATEMENT OF TOTAL INCO ME, THE ASSESSEE HAS MENTIONED THE GENERATOR, DIESEL & MAIN TENANCE EXPENSES, AMOUNTING TO RS.3,24,432/- AND THE LD. FI RST APPELLATE AUTHORITY HAS RECORDED A FINDING THAT THI S ISSUE IS COVERED BY THE ORDER FOR ASSESSMENT YEAR 2012-13 AN D EVEN ITA NO.2511/MUM/2017 M/S SANE & DOSHI ENTERPRISES 6 THE ASSESSING OFFICER HAS NOT GIVEN ANY SPECIFIC IN STANCE WHERE THE DESIRED VOUCHERS WERE NOT PRODUCED BY THE ASSESSEE AND RATHER PROPER INVESTIGATION WAS DONE B Y THE LD. ASSESSING OFFICER. THUS, IN VIEW OF THIS FACTUAL FI NDING, WE FIND NO INFIRMITY IN THE CONCLUSION OF THE LD. COMM ISSIONER OF INCOME TAX (APPEAL) ON THIS ALSO. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 21/08/2018. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % MUMBAI; ) DATED :21/08/2018 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI, 5. 34 .$! , 0 +' ! 5 , % / DR, ITAT, MUMBAI 6. 6' 7% / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI