ACIT 17(3), MUMBAI V. SKY SHIPPING, MUMBAI

ITA 3731/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8932 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 30-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 3731/MUM/2016 (ASSESSMENT YEAR 2011-12) THE ACIT 17(3) ROOM NO.137, 1 ST FLOOR, AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020 ...... APPELLANT VS. M/S. SKY SHIPPING, 209, EMCA HOUSE, S.B.ROAD, FORT, MUMBAI 400 001. PAN: AANFS 1270P .... RESPONDENT APPELLANT BY : SHRI RAJESH KUMAR YADAV, RESPONDENT BY : SHRI MEHUL SHAH DATE OF HEARING : 26/10/2017 DATE OF PRONOUNCEMENT : 27/10/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAINI NG TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST THE ORD ER PASSED BY THE CIT(A) -28, MUMBAI DATED 30/03/2016, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT,1961 ( IN SHORT THE ACT) DATED 18/0 3/2014. 2 ITA NO. 3731/MUM/2016 (ASSESSMENT YEAR 2011-12) 2. THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL:- 1. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN DELETING THE DISALLOWANCE MA DE UNDER SECTION 40A(IA) IN RESPECT OF REIMBURSEMENT EXPENSES BY FOLLOWING THE DECISION OF HON'BLE ITAT IN ASSESSEE'S OWN CASE FOR A.Y. 2007-08 & 2008-09. HOWEVER, THE SAID DECISION OF HON'BLE ITAT HAS NOT BEEN ACCEPTED BY T HE DEPARTMENT AND APPEALS IN BOTH THE YEARS ARE STILL PENDING BEFORE THE BOMBAY HIGH COURT FOR FINAL DISPOSAL?' 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CUSTOM HOUSE CLEARING AND FORWARDING. THE ASSESSEE FILED ITS RETURN OF INCOM E ON 29/09/2011 DECLARING TOTAL INCOME AT RS.43,21,698/- AND THE AS SESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 18/03/ 2014 AND THE TOTAL INCOME WAS DETERMINED AT RS.2,02,01,640/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE A DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT OF RS.1,50,34,13 2/- BEING 5% OF EXPENSES INCURRED OF RS.30,06,82,658/- ON ACCOUNT OF TRANSPORTERS CHARGES, CRANE/FORKLIFT/LABOUR CHARGES AND WAREHOUS ING CHARGES COMPRISED IN THE REIMBURSABLE EXPENDITURE. ON AP PEAL, CIT(A) DELETED THE DISALLOWANCE FOLLOWING THE DECISION OF THE MUMB AI BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR S 2007-08 & 2008- 09 IN ITA NOS.1569/MUM/2011 AND 7503/M/2011 RESPECT IVELY. THE FINDINGS OF THE CIT(A) READ AS UNDER:- I HAVE CAREFULLY CONSIDERED THE MATTER AND FIND T HAT THE FACTS AND ISSUE IN THE PRESENT APPEAL IS IDENTICAL TO THE CASE OF THE APPELLANT IN A.YS 2007-08 & 2008-09 BEFORE THE HONBLE ITAT MUMBAI. RESPECTFUL LY FOLLOWING THE DECISION OF THE ITAT IN THE APPELLANTS OWN CASE FO R THE A.YS 2007-08 & 2008- 09, THE DISALLOWANCE MADE BY THE AO UNDER SECTION 4 0(A)(IA) IN RESPECT OF REIMBURSEMENT EXPENSES IS HEREBY DELETED. GROUND N O.2 IS ALLOWED. 3 ITA NO. 3731/MUM/2016 (ASSESSMENT YEAR 2011-12) 4. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED TH E ORDER OF THE ASSESSING OFFICER. ON THE OTHER HAND, LD.REPRESENT ATIVE FOR THE ASSESSEE STRONGLY SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND NO INFIR MITY IN THE ORDER OF CIT(A) SINCE HE HAS RIGHTLY FOLLOWED THE ORDER OF ITAT IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS, ON IDENTICAL FA CTS AND CIRCUMSTANCES. IT IS ALSO NOT IN DISPUTE THAT THE ORDER OF THE TRI BUNAL DATED 12/11/2014(SUPRA) RELIED BY THE CIT(A) CONTINUES TO HOLD THE FIELD AND HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. WE TH EREFORE, AFFIRM THE FINDINGS OF THE CIT(A) ON THIS ISSUE. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27/10/2017 . SD/- SD/- (RAM LALNEGI) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 27/10/2017 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