SITARA BUILDRS P.LTD, MUMBAI V. DCIT CC 8(4), MUMBAI

ITA 2949/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9875 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Assessee Lawyers: KRISHNA KUMAR SHA RMA
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI, JUDICIAL MEMBER ITA NO. 2949/MUM/2017 (ASSESSMENT YEAR 2007-08) M/S. SITARA BUILDERS PVT. LTD. II, 2 ND FLOOR, 12/14, GOVERDHAN BLDG., PAREKH STREET, PRATHANA SAMAJ, MUMBAI 400 004. PAN:AABCS 4975L ...... APPELLANT VS. DY.COMM. OF INCOME TAX, C.C -8(4) MUMBAI. .... RESPON DENT APPELLANT BY : SHRI KRISHNA KUMAR SHA RMA RESPONDENT BY : SHRI R.P.MEENA DATE OF HEARING : 06/09/2017 DATE OF PRONOUNCEMENT : 06/09/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAI NING TO ASSESSMENT YEAR 2007-08 IS DIRECTED AGAINST AN ORD ER PASSED BY CIT(A)- 47 MUMBAI DATED 24/01/2017, WHICH IN TURN ARISES OU T OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 153C R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28/03/2014. 2. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE AS SESSEE IS AGAINST AN ADDITION OF RS.1,60,500/- MADE BY THE ASSESSING OFF ICER REPRESENTING 2 ITA NO. 2949/MUM/2017 (ASSESSMENT YEAR 2007-08) ROC FEES PAID BY THE ASSESSEE COMPANY FOR INCREASIN G ITS AUTHORIZED SHARE CAPITAL. 3. IN BRIEF, THE RELEVANT FACTS ARE THAT A SEARCH A ND SEIZURE ACTION WAS CARRIED OUT ON 26/05/2011 IN THE ROHAN GROUP OF CASES AND THE ASSESSEE COMPANY BEING RELATED TO SUCH GROUP, AN A SSESSMENT UNDER SECTION 153C R.W.S. 143(3) OF THE ACT WAS FINALIZED BY THE ASSESSING OFFICER FOR THE INSTANT ASSESSMENT YEAR ON 28/03/20 14. NOTABLY, THE ASSESSMENT WAS FINALIZED ON THE BASIS OF A RETURN O F INCOME FILED BY THE ASSESSEE ON 21/10/2013 IN RESPONSE TO A NOTICE ISSU ED BY THE ASSESSING OFFICER UNDER SECTION 153C OF THE ACT DATED 28/03/2 013. THE ASSESSMENT WAS FINALIZED AT A LOSS OF RS.24,57,427/ -, AS AGAINST LOSS OF RS.26,17,927/- DECLARED IN THE RETURN FILED IN RESP ONSE TO THE NOTICE UNDER SECTION 153C OF THE ACT. THE ASSESSING OFFIC ER NOTED THAT IN THE RETURN FILED, ASSESSEE HAD MADE A FRESH CLAIM FOR D EDUCTION OF RS.1,60,500/-, WHICH WAS NOT MADE WHILE FILING THE ORIGINAL RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. THE SAID A MOUNT REPRESENTED FEE PAID TO ROC FOR THE INCREASE IN THE ASSESSEE CO MPANYS AUTHORIZED SHARE CAPITAL. IN THE IMPUGNED ASSESSMENT, THE ASS ESSING OFFICER HAS DISALLOWED THE SAID CLAIM, WHICH HAS BEEN FURTHER A FFIRMED BY THE CIT(A) BY, INTER-ALIA, RELYING ON THE JUDGMENTS OF THE HON 'BLE SUPREME COURT IN THE CASE OF PUNJAB STATE INDUSTRIAL DEVELOPMENT CORPORATION VS. CIT, 225 ITR 792(SC) AND BROOKE BOND INDIA LTD. VS. CIT, 225 ITR 798 (SC). AGAINST SUCH A DECISION, ASSESSEE IS IN FURTHER APP EAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE F OR THE ASSESSEE QUITE FAIRLY CONCEDED THE POSITION THAT SO FAR AS T HE MERITS OF THE ISSUE 3 ITA NO. 2949/MUM/2017 (ASSESSMENT YEAR 2007-08) ARE CONCERNED, THE FEE PAID TO ROC FOR INCREASE IN ASSESSEE COMPANYS AUTHORIZED SHARE CAPITAL IS NOT ALLOWABLE AS REVENU E EXPENDITURE FOLLOWING THE AFORESAID JUDGMENTS OF THE HONBLE SU PREME COURT. THE ONLY OTHER ASPECT RAISED BY THE ASSESSEE IS BASED O N THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD, 374 ITR 645 (BOM). ON THE SAID BASIS, IT IS SOUGHT TO BE CANVASSED THAT T HE IMPUGNED ADDITION IS IMPERMISSIBLE. 5. ON THE LATTER PLEA OF THE ASSESSEE ALSO, WE FIND NO MERIT. NO DOUBT, THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COUR T IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD, (SUPRA) LAYS DOWN THAT IN THE ABSENCE OF ANY INCRIM INATING MATERIAL FOUND IN THE COURSE OF A SEARCH, NO ADDITION IS MAI NTAINABLE IN THE ASSESSMENT FINALIZED UNDER SECTION 153A OR 153C OF THE ACT IN CASES WHERE THE ORIGINAL ASSESSMENT HAS NOT ABATED. SO H OWEVER, THE AFORESAID PROPOSITION IS APPLICABLE ONLY ON ISSUES WHICH HAVE OTHERWISE REACHED FINALITY IN THE ORIGINAL UNABATED ASSESSMENT; WHEREAS IN THE PRESENT CASE, THE AMOUNT OF ROC FEES WAS NOT CLAIMED AS A DEDUCTION BY THE ASSESSEE IN THE ORIGINAL RETU RN FILED UNDER SECTION 139(1) OF THE ACT, BUT HAS BEEN MADE ONLY IN THE RE TURN FILED IN PURSUANCE TO THE NOTICE ISSUED UNDER SECTION 153C O F THE ACT. THEREFORE, THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING COR PORATION (NHAVA SHEVA) LTD, (SUPRA) WILL NOT HELP THE ASSESSEE IN T HE PRESENT CASE; HENCE, THE ACTION OF THE LOWER AUTHORITIES IN DISAL LOWING RS.1,60,500/- IS HEREBY AFFIRMED. 4 ITA NO. 2949/MUM/2017 (ASSESSMENT YEAR 2007-08) 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF T HE HEARING ON 06/09/2017. SD/- SD/- (RAMLAL NEGI) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 06/09/2017 VM , SR. PS 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