URAI IMPEX P.LTD, MUMBAI V. ITO 8(3)(4), MUMBAI

ITA 367/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9057 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMALATHA
• Assessee Lawyers: R N VASANI; V H VASANI
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.367/M/2017 ASSESSMENT YEAR: 2009-10 M/S. URAI IMPEX PVT. LTD., 53, APOLLO INDUSTRIAL ESTATE, OFF. MAHAKALI CAVES ROAD, ANDHERI (EAST), MUMBAI-400 093 PAN: AAACU 5802D VS. ITO - 8(3)(4)/(NEW)ITO - 11(1)(4), 202, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400 020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI R.N. VASANI, A.R. & SHRI V.H. VASANI, A.R. REVENUE BY : SMT. HEMALATHA, D.R. DATE OF HEARING : 07.08.2017 DATE OF PRONOUNCEMENT : 13.10.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 30.11.2016 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER: DURING THE YEAR ASSESSEE HAS PAID COMMISSION ON EX PORT SALE. THIS COMMISSION IS MADE TO M/S. YOHANNIS SERGAWI AS MAHEGN AND CHERINET G GIORIGIS. THE ASSESSEE DID NOT DEDUCT T HE TAX AT SOURCE. THE ASSESSEE SUBMITTED THAT COMMISSION WAS PAID FOR PROCURING THE ORDER ABROAD AND NO SERVICES WERE RENDERED IN INDIA AT ANY TIME DURING THE YEAR UNDER CONSIDERATION. THEREFORE, AS SESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) HAS MADE THE AD DITION OF RS.3,63,226/-. ITA NO.367/M/2017 M/S. URAI IMPEX PVT. LTD. 2 3. DURING THE COURSE OF HEARING, THE LD. A.R. SUBMI TTED THAT THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF MUMBAI TRIBUNAL IN THE CASE OF ACIT VS. RAPID PACK ENGG. (P.) LTD. 46 TAXMANN.COM 330. IN SUPPORT OF HIS CASE, THE LD. A.R. FURTHER RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS. GUJARAT RECLAIM AND RUBBER PRODUCTS LTD. 383 ITR 23 6 (BOM.) 4. THE LD. D.R. RELIED UPON THE ORDER OF THE REVENU E AUTHORITIES 5. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. I FIND THAT THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. GUJARAT RECLAIM AND RUBBER PRODUCTS LTD. 383 ITR 236 (BOM.) WHEREIN THE HONBLE BOMBAY HIGH COURT HAS HELD AS UNDER: THIS CIRCULAR OF 1969 WAS ADMITTEDLY IN FORCE DURI NG THE TWO ASSESSMENT YEARS. IT WAS ONLY SUBSEQUENTLY, I.E., ON OCTOBER 22, 2009 TH AT THE EARLIER CIRCULAR OF 1969 AND ITS REITERATION AS FOUND IN CIRCULAR NO. 786 OF 2000 WERE WITHDRAWN. HOWEVER, SUCH SUBSEQUENT WITHDRAWAL OF AN EARLIER CIR CULAR CANNOT HAVE RETROSPECTIVE OPERATION AS HELD BY THIS COURT IN UTI V. P. K. UNN Y [2001] 249 ITR 612 (BOM). (I) IN VIEW OF THE ABOVE, NOT ONLY THE ENTIRE ISSUE STANDS CONCLUDED IN FAVOUR OF THE RESPONDENT-ASSESSEE IN THE PRESENT FACTS BY THE CEN TRAL BOARD OF DIRECT TAXES CIRCULAR NOS. 23 OF 1969 AND 786 OF 2000 WHICH WERE IN FORCE DURING THE SUBJECT ASSESSMENT YEARS BUT ALSO BY THE DECISION OF THE AP EX COURT IN TOSHOKU LTD. (SUPRA) IN FAVOUR OF THE RESPONDENT-ASSESSEE. THUS, NO SUBS TANTIAL QUESTION OF LAW ARISES IN THE QUESTION FRAMED FOR OUR CONSIDERATION. ACCORDIN GLY, QUESTION (A) IS NOT ENTERTAINED. 6. RESPECTFULLY FOLLOWING THE ABOVE DECISION, I ALL OW THE APPEAL OF THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 13.10.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 13.10.2017. * KISHORE, SR. P.S. ITA NO.367/M/2017 M/S. URAI IMPEX PVT. LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.