ACIT OSD 2(3), MUMBAI V. STOCK TRADERS P.LTD, MUMBAI

ITA 2732/MUM/2011

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9792 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 28-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 07-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Keywords: Tax effect
• Section: 143(3); 80HHC

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL I BENCH MUMB AI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 1687/MUM/2006 (ASSESSMENT YEAR 19 97-98 ) ACIT-2(3), R NO. 555, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS. M/S STOCK TRADERS PVT. LTD. 63, BOMBAY SAMACHAR MARG, FORT, MUMBAI-400001. PAN: AAACS7235A APPELLANT RESPONDE NT ITA NO. 2732/MUM/2011 (ASSESSMENT YEAR 2007-08 ) ACIT-2(3), R NO. 555, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS. M/S STOCK TRADERS PVT. LTD. 63, BOMBAY SAMACHAR MARG, FORT, MUMBAI-400001. PAN: AAACS7235A APPELLANT RESPONDE NT REVENUE BY : SHRI NISHANT SAMAIYA (DR) ASSESSEE BY : SHRI NITESH JOSHI (AR) DATE OF HEARING : 05.12.2018 DATE OF PRONOUNCEMEN T : 05.12.2018 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE TWO APPEALS UNDER SECTION 253 OF INCOME-TAX A CT (THE ACT) ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-XXXIII, & VI, MUMBAI DATED 14.12.2005 AND 12.01.2011 FOR ASSESSMENT YEAR 1997- 98 AND 2007-08 RESPECTIVELY . 2. THE REVENUE IN ITS APPEAL FOR AY 97-98 IN ITA NO. 1 687/M/2006 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 1687 MUM 2006 & 2732 MUM 2011-M/S STOCK TRA DERS PVT. LTD. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUGNED IN THE GROUNDS ENUMERATE BELOW-: 1. THE CIT(A) HAS ERRED IN CANCELING ORDER PASSED U/S 143(3) R.W.S. 147 IGNORING THE FACT THAT THE ASSESSMENT WAS REOPENED AS PER PROVISIONS OF THE ACT. 2. THE CIT(A) HAS ERRED IN FAILING TO NOTE THAT THE 5.143(3) ASSESSMENT MADE WAS AFTER LIMITED SCRUTINY IN WHICH THE S. 80HHC CL AIM WAS ADMITTEDLY NOT AVAILABLE FOR SCRUTINY. 3. THE CIT(A) HAS ERRED IN HOLDING THAT THE PROFES SIONAL FEES OF RS. 8,00,000/- AND FOREIGN TRAVEL EXPENSES OF RS. 3,17,555/- SHOUL D NOT BE CONSIDERED AS 'INDIRECT COSTS' FOR PURPOSES OF COMPUTING DEDUCTIO N U/S 80HHC. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 3. IN ITA NO. 2732/MUM/2011 FOR AY 2007-08 THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUGNED IN THE GROUNDS ENUMERATED BELOW: 1. THE ORDER OF CIT(A) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING FOREIGN TRAVEL EXPENSES OF RS. 55 ,52,078/-, IGNORING THE FACT THAT THE ASSESSEE HAD NOT PROVED THAT IT WAS INCURR ED FOR BUSINESS PURPOSES. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 4. AT THE OUTSET OF HEARING, THE LD. AR OF THE ASSESSE E SUBMITS THAT IN BOTH THE APPEALS THE TAX EFFECT IS LESS THAN RS. 20,00,0 00/- AND THE APPEAL OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF THE CIRCULA R NO. 3/2018 ISSUED BY CBDT DATED 11 TH JULY 2018. THE LD. DR FOR THE REVENUE AFTER GOING ITA NO. 1687 MUM 2006 & 2732 MUM 2011-M/S STOCK TRA DERS PVT. LTD. 3 THROUGH THE GROUNDS OF APPEAL, FAIRLY CONCEDED THAT TAX EFFECT INVOLVED IN BOTH THE APPEALS ARE LESS THAN RS. 20,00,000/-. 5. WE HAVE CONSIDERED THE SUBMISSION OF PARTIES AND NO TED THAT CBDT VIDE ITS CIRCULAR NO. 3/2018 DATED 11 TH JULY 2018 HAS REVISED THE MONITORY LIMIT FOR FILING APPEAL BEFORE TRIBUNAL, WHEREIN TH E REVENUE IS PRECLUDED FOR FILING APPEAL BEFORE THE TRIBUNAL WHEREIN THE T AX EFFECT IS LESS THAN RS. 20,00,000/-. 6. CONSIDERING THE INSTRUCTION OF CBDT IN CIRCULAR NO. 3/2018 DATED 11 TH JULY 2018, BOTH THE APPEALS OF THE REVENUE ARE DISM ISSED AS NOT MAINTAINABLE U/S. 268A OF INCOME-TAX ACT. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COUR T ON 05/12/2018. SD/- S D/- G.S. PANNU PAWAN SINGH VICE-PRESIDENT J UDICIAL MEMBER MUMBAI, DATE: 05.12.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR I BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI