SHETHIA AUDIO VIDIEO P.LTD, MUMBAI V. ITO 5(3)(2), MUMBAI

ITA 2671/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92447 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 20-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N V NADKARNI
• Assessee Lawyers: NEELAM C JADHAV; DR J SHIVARAM

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T.A. NO. 2671 / MUM/20 1 2 ( / ASSESSMENT YEAR : 20 0 8 - 09 ) M/S SHETHIA AUDIO VIDEO PVT LTD., 45, APPOLLO INDUSTRIA L ESTA T E, OFF MAHAKALI CAVE S ROAD, ANDHERI(E), MUMBAI - 400093 / VS. INCOME TAX OFFICER 5(3)(2) , AAYAKAR BHAVAN , M K ROA D, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AABCS6486N / A SSESSEES BY DR J SHIVARAM AND MS. NEELAM C JADHAV / RE VENUE BY SHRI N V NADKARNI / DATE OF HEARING : 2 1 .4. 201 5 / DATE OF PRONOUNCEMENT : 24. 4 . 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 1 1.01.2012 PASSED BY LD CIT(A) - 9, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ASSESSMENT OF ADVANCE RECEIPT OF RS.2,58,58,410/ - AS INCOME OF THE ASSESSEE. 2. WE HEARD THE P ARTIES AND PERUSED THE RECORD. THE ASSESSEE COMPANY IS DEALING IN CDS AND VCDS AND ACQUIRES RIGHTS FOR VARIOUS TITLES AS WELL AS RIGHTS FOR ITS OWN HOME PRODUCTION. THE ASSESSEE HAD SHOWN A ITA NO. 2671/ MUM/201 2 2 SUM OF RS.2.72,93,924/ - AS UNSECURED LOAN IN THE NAME OF M/S MOS ER BAER INDIA LTD. WHEN THE AO CALLED FOR CONFIRMATION LETTER, THE ASSESSEE ADMITTED THAT IT WAS NOT AN UNSECURED LOAN, BUT ADVANCE ROYALTY AMOUNT. THE ASSESSEE SUBMITTED THAT THE ABOVE SAID ADVANCE ROYALTY AMOUNT SHALL BE ADJUSTED OVER A PERIOD OF SEVEN YEARS. THE AO FURTHER NOTICED THAT M/S MOSER BAER LIMITED HAD GIVEN AN AMOUNT OF RS.3.00 CRORES TO THE ASSESSEE AND HAD ALSO DEDUCTED TAX AT SOURCE OF RS.33.99 LAKHS ON THE ABOVE SAID PAYMENT. THE AO NOTICED THAT M/S MOSER BAER LIMITED HAD CARRIED FORWA RD AN AMOUNT OF RS.14,35,514/ - IN ITS BOOKS OF ACCOUNT, WHERE AS THE ASSESSEE HAD CARRIED FORWARD AN AMOUNT OF RS.2,72,93,924/ - . HENCE, THE AO ASSESSED THE DIFFERENCE BETWEEN THE TWO AMOUNTS CITED ABOVE, I.E., RS.2,58,58,410/ - AS INCOME OF THE ASSESSEE AN D THE LD CIT(A) ALSO CONFIRMED THE SAME. 3. AT THE TIME OF HEARING, THE LD A.R SUBMITTED THAT THE ASSESSING OFFICER HAS MADE THE IMPUGNED ADDITION ON THE BASIS OF ACCOUNTING TREATMENT GIVEN BY M/S MOSER BAER INDIA LIMITED AND THE SAME IS NOT BINDING UPON THE ASSESSEE. HE SUBMITTED THAT THE FACT THAT THE OTHER PARTY HAS DEDUCTED TAX AT SOURCE ON THE PAYMENT OF RS.3.00 CRORES WILL ALSO NOT ALTER THE CHARACTER OF THE PAYMENT. HE SUBMITTED THAT THE ASSESSEE HAD RECEIVED THE SUM OF RS.3.00 CRORES AS ADVANCE PAYMENT ONLY, WHICH SHALL BE ADJUSTED OVER A PERIOD OF SEVEN YEARS. ACCORDINGLY, THE ASSESSEE HAS BEEN APPROPRIATING THE ABOVE SAID SUM IN ACCORDANCE WITH THE AGREEMENT REACHED WITH M/S MOSER BAER. HE SUBMITTED THAT BOTH THE ASSESSING OFFICER AND LD CIT( A) HAVE NOT EXAMINED THE AGREEMENT ENTERED BETWEEN THE PARTIES, WHICH WILL CLARIFY ALL THE ISSUES. ACCORDINGLY HE PRAYED THAT THIS ISSUE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. ITA NO. 2671/ MUM/201 2 3 4. THE LD D.R DID NOT OBJECT TO THE PLEA PUT FORTH BY LD A.R. 5. HAVING REGARD TO THE SUBMISSIONS MADE BY LD A.R, WE ARE OF THE VIEW THAT THERE IS SOME MERIT IN THE PLEA PUT FORTH BY THE ASSESSEE. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF T HE ASSESSING OFFICER BY DULY CONSIDERING ALL THE RELEVANT DOCUMENTS AND DETAILS. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THIS ISSUE AFRESH BY DULY CONSIDERING ALL THE INFORMATION AND EXPLANATION THAT MAY BE FURNISHED BY THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO FURNISH ALL THE DETAILS THAT MAY BE CALLED FOR BY THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. THE AB OVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24TH APR , 2015 . 24TH APR , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 24TH APR ,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. , , / DR, ITAT, MUMBAI CO NCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (A SSTT. REGISTRAR) , /ITAT, MUMBAI