LATE MANOHAR AHUJA (L/R SMT. KUSUM MANOHAR AHUJA), MUMBAI V. ITO, WARD - 14(1)(3), MUMBAI

ITA 2724/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3796 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 30-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2013
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: V P KOTHARI
• Keywords: Depreciation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R. BASKARAN (AM) & AMIT SHUKLA (JM) I.T.A. NO. 2724 /MUM/ 2013 (ASSESSMENT YEAR 2009 - 10 ) LATE SHRI MANOHAR AHUJA (THROUGH HIS LEGAL HEIR SMT. KUSUM MANOHAR AHUJA 203, PRALAHAD PREMISE S CHS LINKING ROAD SANTACRUZ WEST MUMBAI - 400 054. VS. ACIT, CIRCLE 14(1) MUMBAI. ( APPELLANT ) ( RESPONDENT ) PAN NO. ADRPA9577G ASSESSEE BY SHRI V.P. KOTHARI DEPARTMENT BY SHRI T.A. KHAN DATE OF HEARING 4 .5 . 201 6 DATE OF PRONOUNCEMENT 4 . 5 . 201 6 O R D E R PER B.R. BASKARAN, A M : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 3.9.2012 PASSED BY LEARNED CIT(A) - 25, MUMBAI AND IT RELATES TO A.Y. 2009 - 10. 2. THE APPEAL IS BARRED BY LIMITATION BY 78 DAYS AND THE ASSE SSEE HAS MOVED A PETITION REQUESTING THE BENCH TO CONDONE THE DELAY. 3. WE HAVE HEARD THE PARTIES ON THIS PRELIMINARY ISSUE. HAVING REGARD TO THE SUBMISSIONS MADE IN THE PETITION, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. THE ASSESSEE HAS RAISED SEVEN GROUNDS. THE FIRST GROUND RELATES TO CONDONATION OF DELAY AND THE SAME HAS BEEN DEALT WITH IN THE EARLIER PARAGRAPH. LATE SHRI MANOHAR AHUJA 2 5. AT THE TIME OF HEARING , THE ASSESSEE DID NOT PRESS GROUND NO. 3 & 6 AND HENCE BOTH GROUNDS ARE DISMISSED AS NOT PRESSED. 6. GROUND NO. 2 RELATES TO ADDITION OF SALE PROCEEDS OF SHARES AMOUNTING TO RS. 18,66,200/ - U/S. 68 OF THE ACT. 7. LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD EARNED LONG TERM CAPITAL GAINS ON SALE OF SHARES OF ONGC AND CIPLA. BEFORE THE ASSESSING OFFICER ASSESSEE COULD NOT SUBMIT RELEVANT CONTRACT NOTE S AND HENCE THE ASSESSING OFFICER ASSESSED THE VALUE OF SALE PROCEEDS BY REJECTING THE CLAIM OF LONG TERM CAPITAL GAINS. LEARNED AR SUBMITTED TH AT THE ASSESSEE HAS SINCE LOCAT ED THE CONTRACT NOTE S AND ACCORDINGLY PRAYED FOR DELETION OF THIS ADDITION. ON THE CONTRARY LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. 8. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE SAME AFRESH BY CONSIDERING INFORMATI ON AND EXPLANATION S THAT MAY BE FURNISHED BY THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW . 9. GROUND NO. 4 AND 5 RELATES TO ADHOC DISALLOWANCE MADE OUT OF EXPENSES. LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAS DISALLOWED 20 % OF THE EXPENSES ON ADHOC BASIS. LEARNED AR SUBMITTED THAT THE AGGREGATE AMOUNT OF EXPENSES DETERMINED BY THE ASSESSING OFFICE R IS RS. 9.77 LAKHS. HOWEVER, THE AO INCLUDED TRAVELING EXPENSES AND DEPRECIATION ON MOTOR CAR TWICE AND THE SAME HAS RESULTED IN DOUBLE DISALLOWANCE . HE FURTHER SUBMITTED THAT THE DISALLOWANCE COMPUTED @ 20% IS ALSO ON THE HIGHER SIDE. LATE SHRI MANOHAR AHUJA 3 10. WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE ON THIS ISSUE. FROM THE DETAILS OF EXPENSES GIVEN IN GROUNDS OF APPEAL, WE NOTICE THAT THE AS SESSING OFFICER HAS INCLUDED TRAVELLING EXPENSES TWICE. FURTHER THE CONTENTION OF THE ASSESSEE IS THAT DEPRECIATION ON MOTOR CAR OF RS. 2,52,907/ - IS ALREADY INCLUDED IN THE DEPRECIATION ON CAR AMOUNTING TO RS.2,75,560/ - . THERE SHOULD NOT BE ANY DISPUT E THAT DOUBLE DISALLOWANCE IS NOT PERMITTED UNDER THE INCOME TAX ACT. ACCORDINGLY WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXCLUDE TRAVELLING AND DEPRECIATION ON CAR INCLUDED FOR THE SECOND TIME, IF THE SAME IS FOUND TO BE CORRECT AFTER CARRYING OUT DUE EXAMINATION. WE ALSO FIND MERIT IN THE SUBMISSIONS OF LEARNED AR THAT DISALLOWANCE MADE @ 20% IS ON HIGHER SIDE. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE @ 10% EXPENSES AFTER EXCLUDING TRAVELLING AND DEPRECIATION INCLUDED FOR SECOND TIME. THE ORDER OF LD CIT(A) ON THIS ISSUE STANDS MODIFIED ACCORDINGLY. 11. GROUND NO. 7 RELATES TO THE ADDITION OF NOTIONAL RENT ON THE ADVANCES GIVEN FOR PURCHASE OF PROPERTY. WE NOTICED THAT LEARNED CIT( A) HAS ALREADY RESTORED THIS MATTER TO THE FILE OF THE ASSESSING OFFICER AND HENCE HIS ORDER DOES NOT CALL FOR ANY INTERFERENCE. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. OR DER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 4 .5 .2016 . SD/ - SD/ - (AMIT SHUKLA ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 4 / 5 /20 1 6 COPY OF TH E ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI LATE SHRI MANOHAR AHUJA 4 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS