ACIT 6(1), MUMBAI V. ASAPP MEDIA P.LTD, MUMBAI

ITA 3502/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92678 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 08-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2012
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.3502 /M/2012 (AY:2008 - 200 9 ) ASST. CIT 6(1), R.NO.506, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. ASAPP MEDIA PVT LTD., A 303, NAVBHARAT ESTATE, ZAKARIA, BUNDER ROAD, SEWRI (W), MUMBAI 400015. ./ PAN : AAECA1076H ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JEEVAN LAL LAVIDIYA / RESPONDENT BY : SHRI JAYESH DADIA / DATE OF HEARING : 08.06.2015 / DATE OF PRONOUNCEMENT : 08.06.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 17.5.2012 IS AGAINST THE ORDER OF THE CIT (A) - 14, MUMBAI DATED 27.2.2012 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) HAS ERRED IN DELETING THE ADDITIONS OF RS. 38,39,418/ - MADE ON ACCOUNT OF DISALLOWANCE OF CLAIM OF FOREIGN VISITS WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE DURING THE COURSE OF SCRUTINY PROCEEDIN GS COULD NOT SUBSTANTIATE ITS CLAIM BY WAY OF COPY OF TICKETS, BOARDING PASSES ETC., AND ALSO COULD NOT PROVE THAT THE FOREIGN VISITS WAS FOR THE PURPOSE OF BUSINESS. 2. THE ONLY ISSUE RAISED IN THE GROUNDS RELATES TO THE DELETION OF DISALLOWANCE OF RS. 38,39,418/ - ON ACCOUNT OF FOREIGN TRIPS. BRIEFLY STATED, RELEVANT FACTS IN THIS REGARD ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PUBLICATION OF MAGAZINES INVOLVING REAL ESTATE BUSINESS ACTIVITIES. THOUGH THE MAGA ZINES, THE A SSESSEE REPORTS VAR IOUS BUSINESS ACTIVITIES OF THE IN INDIA AND ABROAD RELATING TO REAL ESTATE BUSINESS. IN THE PROCESS, ASSESSEE, SPOUSE AND EMPLOYEES VISITED FOREIGN COUNTRIES AND INCURRED EXPENDITURE ON FOREIGN VISITS AMOUNTING TO RS. 40,35 ,496/ - . T HE DETAILS ARE 2 PLACED AT PAGE 2 TO 5 OF THE PAPER BOOK. IN THE ASSESSMENT, AO ASKED FOR EVIDENCE IN SUPPORT OF THE CLAIM AND DEMANDED FOR EVIDENCES FOR ESTABLISHING THE BUSINESS PURPOSES OF THE SAID FOREIGN VISITS. THE CONTENTS OF PARAS 5.1 TO 5.5 OF THE ASSESSMENT ORDER ARE RELEVANT IN THIS REGARD. SUMMARILY MENTIONING, THE REASON GIVEN BY THE AO FOR MAKING SUCH ADDITIONS REVOLVES AROUND THE ASSESSEES FAILURE TO SUBMIT THE EVIDENCE TO SUBSTANTIATE ITS CLAIM. AGGRIEVED, ASSESSEE FILED AN APPE AL BEFORE THE FIRST APPELLATE AUTHORITY. 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY , ASSESSEE FURNISHED BRIEF NOTE GIVING THE REASONS FOR FOREIGN AND , HOWEVER, THE ASSESSEE COULD NOT FILE THE COPIES OF THE BOARDING PASSES , FOOD AND HOTE L BILLS, NO THIRD PARTY EVIDENCES IN SUPPORT OF THE CLAIM OF EXPENDITURE. HOWEVER, AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, CIT (A) GRANTED RELIEF AND DELETED THE ADDITIONS MADE BY THE AO. WHILE GIVING RELIEF, CIT (A) CONCLUDED THAT THE ASSESSEE IS I N THE BUSINESS OF PUBLICATION OF MAGAZINE CALLED CONSTRUCTION WORLD, WHICH PROVIDES INFORMATION OF CONSTRUCTION ACTIVITY IN INDIA AND ABROAD AND INCURRING SUCH EXPENDITURE BY THE ASSESSEE IS A NECESSITY IN THE INTEREST OF BUSINESS. ACCORDINGLY, CIT (A) D ELETED THE ADDITION. AGGRIEVED WITH THE SAID DECISION OF THE CIT (A), REVENUE IS IN APPEAL BEFORE US. 4. DURING THE PROCEEDINGS BEFORE US, LD DR APPEARING FOR THE REVENUE HAS DEMONSTRATED THAT , APART FROM PROVIDING GENERAL DETAILS, THE ASSESSEE DID NOT FU RNISH ANY EVIDENCE IN SUPPORT OF EXPENDITURE. NO DETAILS OF HOTEL STAY, PURPOSE OF CONFERENCES ATTENDED, COPIES OF THE TICKETS, COPIES OF THE HOTEL BILLS, COPIES OF THE ENTRY FEES OF THE CONFERENCES , WERE FURNISHED. IN THESE CIRCUMSTANCES, MERELY CONSID ERING ON A WRITTEN NOTE AND BASED ON THE GENERAL INFORMATION FURNISHED BY THE ASSESSEE, CIT (A) SHOULD NOT HAVE GRANTED RELIEF. LD DR IS OF THE OPINION THAT THE MATTER SHOULD BE REMANDED TO THE FILE OF THE AO WITH A DIRECTION TO THE ASSESSEE TO SUBMIT THE EVIDENCE BEFORE THE ASSESSING OFFICER IN THE SECOND ROUND. 5. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE PAPER BOOK AND MENTIONED THAT THE ASSESSEE FILED RELEVANT DETAILS OF FOREIGN TRAVEL EXPENSES AND READ OUT THE SAME FROM PAGES 2 TO 5 OF THE SAID PAPER BOOK PLACED BEFORE US. HOWEVER, THESE DETAILS DO NOT CONSIST OF ANY EVIDENCES IN SUPPORT OF THE CLAIM OF THE CLAIM. HE HAS ALSO BROUGHT OUR ATTENTION TO XEROX COPIES OF THE MAGAZINE BEING PUBLISH ED BY THE ASSESSEE AND MENTIONED THAT THE ASSESSEE IS 3 REQUIRED TO VISIT OR SEND ITS EMPLOYEES / REPRESENTATIVE TO THE RESPECTIVE PLACES FOR BUSINESS PURPOSES, AND THEREFORE, THE EXPENSES SHOULD BE ALLOWED IN FULL. HOWEVER, NO COPIES OF THE TICKETS , HOTEL BILLS, FOOD BILLS ETC ARE FILED. T HE MANNER OF SPENDING OF THE HUGE CASH CARRIED ON BY THE ASSESSEE / SPOUSE AND OTHER EMPLOYEES OF THE COMPANY WERE NOT PLACED IN THE PAPER BOOK PLACED BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON HEARING BOTH THE PARTIES , WE FIND THE EXPENSES CLAIMED BY THE ASSESSEE ARE REQUIRED EVIDENCES AND THE ONUS IS ON THE ASSESSEE WHICH , IN OUR OPINION, IS NOT DISCHARGED. THEREF ORE, INSTEAD OF CONFIRMING THE ORDER OF THE CIT (A) ON THIS ISSUE, WE FIND IT NECESSARY TO REMAND THE ISSUE RAISED IN GROUND NO.1 OF THE APPEAL TO THE FILE OF THE AO FOR FRESH ADJUDICATION. ACCORDINGLY WE ORDER. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, GROUND RAISED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2015. SD/ - SD/ - (I.P. BANSAL) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 8.6 .2015 . . ./ OKK , 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI