ADVANCE POWER DISPLAY SYSTEMS LTD, MUMBAI V. ACIT 8(1), MUMBAI

ITA 2700/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2378 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 01-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: Y P TRIVEDI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 2700/MUM/2011 (ASSESSMENT YEAR : 2006-07) ADVANCE POWER DISPLAY SYSTEMS LTD., UNIT NO.8,SDF-SEEPZ,ANDHERI (E), MUMBAI 400 096 PAN:AAACA 5970G ... APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX 8(1), ROOM NO.210, AAYKAR BHAVAN, MK ROAD, MUMBAI -20. .... RESPONDENT APPELLANT BY : SHRI Y.P.TRIVEDI RESPONDENT BY : SHRI MANJUNATH KA RKIHALLI DATE OF HEARING : 07/10/2015 DATE OF PRONOUNCEMENT : 20/11/2015 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS DIRE CTED AGAINST THE ORDER PASSED BY THE CIT(A)-16, MUMBAI DATED 27/01/2 011 PERTAINING TO THE ASSESSMENT YEAR 2006-07, WHICH IN TURN HAS ARIS EN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 31/12/2008 U NDER SECTION 115WE(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FO LLOWING GROUND OF APPEAL:- 2 ITA NO. 2700/MUM/2011 (ASSESSMENT YEAR : 2006-07) THE COMMISSIONER OF INCOME-TAX (APPEALS)16, MUMBAI (HEREINAFTER REFERRED TO AS THE CIT(A)) ERRED IN CONFIRMING THE FOLLOWING ADDITIONS MADE TO THE FRINGE BENEFITS BY THE ASSISTANT COMMISSIONER OF IN COME-TAX 8(1) MUMBAI (HEREINAFTER REFERRED TO AS THE ACIT) 1. EMPLOYEE WELFARE RS. 4,64,382 2. CONVEYANCE EXPENSES RS. 14,98,823 THE CIT(A) ERRED IN NOT APPRECIATING THE FACTS SET OUT IN THE STATEMENT OF FACTS AND THE EXPLANATION OFFERED AT THE HEARING DE TAILING THE DIFFERENCE BETWEEN THE EXPENSES AS CLASSIFIED IN THE PROFIT AN D LOSS ACCOUNT AND THE EXPENSES SUBJECT TO FBT. 3. THE DISPUTE IN THE PRESENT APPEAL RELATES TO THE COMPUTATION OF VALUE OF FRINGE BENEFITS ASSESSABLE IN THE HANDS OF THE ASSESSEE UNDER SECTION 115WE(3) OF THE ACT. THE ASSESSEE-COMPANY IS PRIMARILY AGGRIEVED WITH CERTAIN EXCLUSIONS CLAIMED BY IT UND ER THE HEADS CONVEYANCE EXPENSES AND STAFF WELFARE EXPENSES ON A CCOUNT OF SECTION 115WB(2)(E) &(F)R.W.S. 115WB(3) OF THE ACT. 4. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSESS EE REFERRED TO A CHART CONTAINING DETAILS OF VARIOUS EXPENSES DEBITE D UNDER THE HEAD STAFF WELFARE EXPENSES AND CONVEYANCE EXPENSES TO D EMONSTRATE THAT THE ENTIRE EXPENDITURE UNDER THE HEAD COULD NOT BE SUBJECT TO THE FRINGE BENEFIT TAX. IT WAS ALSO POINTED OUT THAT THE CIT(A) HAS NOT ADJUDICATED ON THE SPECIFIC SUBMISSIONS MADE BY THE ASSESSEE AND, THEREFORE, IT WAS CONTENDED THAT THE APPELLANT WOUL D BE SATISFIED, IF THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OF FICER FOR EVALUATING THE ASSESSEES CLAIM FOR EXCLUSION AS PRESCRIBED IN SEC TION 115WB(2) OF THE ACT. 5. LD. DEPARTMENTAL REPRESENTATIVE APPEARING FOR TH E REVENUE DID NOT OPPOSE THE PLEA OF THE ASSESSEE FOR REMANDING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER. 3 ITA NO. 2700/MUM/2011 (ASSESSMENT YEAR : 2006-07) 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. OSTENSIBLY, A PERUSAL OF THE ORDER OF CIT(A) REVEALS THAT ASSESSE E HAS SOUGHT EXCLUSION OF SPECIFIC AMOUNTS FROM THE PURVIEW OF FRINGE BENE FIT TAX ON THE STRENGTH OF SECTION 115WB(2)(E) &(F) R.W.S. 115WB(3 ) OF THE ACT. THE CIT(A) ON THE OTHER HAND HAS DEALT WITH THE ISSUE I N A GENERALIZED MANNER NOT EVALUATING THE ASSESSEES PLEA FOR SPECI FIC EXCLUSIONS, FOR INSTANCE, EXCLUSION SOUGHT IN TERMS OF SECTION 115W B(2)(E) &(F) OF THE ACT. IN OUR VIEW, THE LD. REPRESENTATIVE FOR THE ASSESSEE IS QUITE JUSTIFIED IN PLEADING FOR REMANDING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER, SO AS TO CORRECTLY ASSESS THE FR INGE BENEFIT TAX LIABILITY IN THE HANDS OF THE ASSESSEE- COMPANY. 7. AS A CONSEQUENCE, WE SET-ASIDE THE IMPUGNED ORDE R OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSE SSING OFFICER, WHO SHALL CONSIDER THE SPECIFIC PLEAS OF THE ASSESSEE, AND THEREAFTER PASS A FRESH ORDER ON THIS ASPECT AS PER LAW. NEEDLESS TO MENTION, THE ASSESSING OFFICER SHALL ALLOW A REASONABLE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING AN ORDER AFRESH AS PE R LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/11/2015. SD/- SD/- (RAM LAL NEGI) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI, DATED 20/11/2015 4 ITA NO. 2700/MUM/2011 (ASSESSMENT YEAR : 2006-07) 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 VM , SR. PS