JAYESH T. KOTHARI, MUMBAI V. ITO 16(3)(1), MUMBAI

ITA 3106/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92636 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 07-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Assessee Lawyers: S C TIWARI

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 3106/MUM/2013 ( / ASSESSMENT YEAR : 2009 - 10 MR. JAYESH T. KOTHARI, 1 ST FLOOR, NIRMAL NIKETAN, 221, KHETWADI MAIN ROAD, KHETWADI, MUMBAI - 400 004 / VS. THE ITO - 16(3)(1), MUMBAI ./ ./ PAN/GIR NO. : AAACPK 1361Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI S.C. TIWARI / RESPONDENT BY : SHRI AKHILENDRA P. YADAV / DATE OF HEARING : 13 . 0 5 .2015 / DATE OF PRONOUNCEMENT : 13 .0 5 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 27 , MUMBAI DT. 5.2.2013 PERTAINING TO ASSESSMENT YEAR 2009 - 10. 2. THE SOLE GRIEVANCE OF THE ASSESSEE RELATES TO THE DISALLOWANCE OF EXPENDITURE FOR NON DEDUCTION OF TAX IN TERMS OF SEC. 40(IA) OF THE ACT. ITA. NO. 3106/M/2013 2 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS VS ACIT 136 ITD 23. THE LD. COUNSEL FURTHER POINTED OUT THAT A SPECIAL LEAVE PETITION IN THE CASE OF M/S. VECTOR SHIPPING SERVICES (P) LTD HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE SPECIAL LEAVE TO APPEAL (C) CC NO(S) 8068/2014 WHICH HAS BEEN FOLLOWED BY THE TRIBUNAL MUMBAI BENCH IN THE CASE OF M/S. ARCADIA SHARE & STOCK BROKERS PVT. LTD., IN ITA NO. 1871/M/29013 DT. 22.12.2014. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. PRATIBHUTI VINIYOG LTD. IN ITA NO. 1689 /M/2011. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS RELIED UPON BY THE RIVAL PARTIES. THE DETAILS OF PAYMENTS ARE EXHIBITED AT PAGE - 63 OF THE PAPER BOOK WHEREIN ONLY TWO ITEMS OF RS. 70,750/ - AND RS. 13,74,293/ - AR E AMOUNT PAYABLE CARRIED FORWARD TO NEXT YEAR. ALL OTHER AMOUNTS APPEARED TO HAVE BEEN PAID DURING THE YEAR UNDER CONSIDERATION ITSELF. WE FIND THAT THE ASSESSEE HAS ALREADY DISALLOWED 1/3 RD OF THESE EXPENDITURES AS EXHIBITED AT PAGE - 8 OF THE PAPER BOOK . THEREFORE, ALL THAT NEED TO BE DISALLOWED IS 2/3 RD OF SUCH EXPENDITURE. WE, ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO VERIFY THE AMOUNT ACTUALLY PAID DURING THE YEAR UNDER CONSIDERATION IF IT IS FOUND THAT THE AMOUNT A LREADY BEEN PAID DURING THE YEAR, THEN NO DISALLOWANCE SHOULD BE MADE U/S. 40A(IA) OF THE ACT AND IN RESPECT OF THE AMOUNT FOUND PAYABLE ON THE LAST DAY OF THE BALANCE SHEET ONLY 2/3 RD OF SUCH AMOUNT NEED TO BE DISALLOWED AS THE ASSESSEE HAS ALREADY DISAL LOWED 1/3 RD . ITA. NO. 3106/M/2013 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. OR DER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 13 TH MAY , 2015 SD/ - SD/ - ( D.MANMOHAN ) (N.K. BILLAIYA) /VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATED : 13 TH MAY , 2015 . . ./ RJ , 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