SGE ADVISORS (I) P.LTD ( EARLIER KNOWN AS AUNCAP FINANCIAL ADVISORY ADVISORY SERVICES INDIA P.LTD WHICH WAS FORMERLY KNOWN AS SUN F& C ASSET MANAGEMENT (I) .LTD), NEW DELHI V. DCIT 2(3), MUMBAI

ITA 3823/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4226 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 30-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JOTNILAKSHMI NAYAK
• Assessee Lawyers: K K VED

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . . , . . '# '# '# '# , $ $ $ $ % % % % BEFORE SHRI R.K. GUPTA, JM, AND SHRI N. K. BILLAIYA , AM /. I.T.A. NO.3823/MUM/2012 ( & & & & '& '& '& '& / ASSESSMENT YEAR: 2003-2004) SGE ADVISORS (INDIA) PRIVATE LIMITED (EARLIER KNOWN AS SUNCAP FINANCIAL ADVISORY SERVICES INDIA PVT. LIMITED WHICH WAS FORMERLY KNOWN AS SUN F&C ASSET MANAGEMENT (1) PRIVATE LIMITED) 9 TH FLOOR, MERIDIEN COMMERCIAL TOWER, RAISINA ROAD, NEW DELHI-11 0 001 / VS. THE DEPUTY COMMISSIONER OF INCOME TAX-2(3), MUMBAI. ( $ /. )* /. PAN/GIR NO. : AAACS8138C ( (+ / APPELLANT ) : ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY : SHRI K.K. VED ,-(+ . / RESPONDENT BY : SMT. JOTNILAKSHMI NAYAK 0$ / DATE OF HEARING : 25.06. 2013 23' 0$ /DATE OF PRONOUNCEMENT : 10. 07.2013 4 4 4 4 / O R D E R PER : R.K. GUPTA, JM THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R OF LD. CIT(A) -6, MUMBAI DATED 22.03.2012, WHO CONFIRM THE LEVY OF PENALTY ON ACCO UNT OF ADDITION SUSTAINED IN QUANTUM MATTER. 2 ITA 3823 M 2012 S GE ADVISORS (INDIA) PVT. LTD. VS. DCIT-2(3), 2. THE LD. AR WHO APPEARED BEFORE THE TRIBUNAL STA TED THAT THREE ADDITIONS WERE MADE I.E. ON ACCOUNT OF ONGOING EXPENSES AT RS. 1,2 9, 52,731/-, ON ACCOUNT OF CUSTODIAN CHARGES AT RS. 31,50,000/- AND ON ACCOUNT OF ELECT RICITY EXPENDITURE AT RS. 24, 422. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE ISSUE IN RESPE CT TO ONGOING EXPENSES AT RS. 1,29,52,731/- HAS BEEN SET ASIDE BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER. REGARDING THE ADDITION OF RS. 31,50,000/- ON ACCOUN T OF CUSTODIAN CHARGES, IT WAS SUBMITTED THAT THIS ADDITION HAS BEEN DELETED BY TH E TRIBUNAL THEREFORE, PENALTY CANNOT BE LEVIED ON THE ABOVE TWO AMOUNTS. REGARDING THE AMOU NT OF RS. 24,422/-, IT WAS SUBMITTED THAT THIS ADDITION HAS BEEN CONFIRMED BY THE TRIBUN AL BY OBSERVING THAT THESE EXPENSES WERE PERSONAL EXPENDITURE OF THEIR CEO. IT WAS EXPL AINED BY LD. AR THAT NO PERSONAL EXPENDITURE ARE INVOLVED IN CASE OF COMPANY. ASSESS EE BEING A COMPANY THEREFORE, THOUGH THE DISALLOWANCE HAS BEEN CONFIRMED, ATLEAST PENALT Y SHOULD NOT BE LEVIED. RELIANCE WAS PLACED ON VARIOUS CASES LAWS MENTIONED IN THE CHART FILED DURING THE COURSE OF HEARING OF APPEAL. 3. ON THE OTHER HAND, THE LD. DR PLACED RELIANCE ON THE ORDER OF LD. CIT(A). 4. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE DESERVE TO SUCCEED IN ITS APPEAL. IT I S NOTICED THAT THE ADDITION OF RS. 1,29,52,731/- HAS BEEN SET ASIDE TO THE FILE OF THE AO FOR PASSING THE FRESH ORDER. THIS ORDER WAS PASSED BY THE TRIBUNAL IN ITA NO. 5454/MUM/2008 , AY- 2003-04 VIDE ORDER DATED 15.09.2010. SINCE, THE MATTER HAS ALREADY BEEN REST ORED TO THE FILE OF THE AO, THEREFORE, THE BASIS FOR LEVY OF PENALTY DOES NOT SURVIVE. ACCORDI NGLY, WE CANCEL THE LEVY OF PENALTY ON THIS AMOUNT. 5. SIMILARLY, THE ADDITION OF RS. 31,50,000/- HAVE BEEN DELETED BY THE TRIBUNAL IN THE SAME ORDER THEREFORE, ON THIS AMOUNT ALSO PENALTY I S NOT LEVEABLE AS THE BASIS OF PENALTY DOES NOT SURVIVE NOW. ACCORDINGLY WE CANCEL THE LE VY OF PENALTY ON THIS AMOUNT ALSO. 3 ITA 3823 M 2012 S GE ADVISORS (INDIA) PVT. LTD. VS. DCIT-2(3), 6. REMAINING AMOUNT ON WHICH PENALTY IS LEVIED IS R S. 24,422/- WHICH WAS DISALLOWED ON ACCOUNT OF ELECTRICITY CHARGES INCURRED BY ASSES SEES COMPANY ON BEHALF OF ITS CEO. THESE EXPENSES HAVE BEEN CONFIRMED BY THE TRIBUNAL, BY HOLDING THAT THESE ARE PERSONAL EXPENDITURE OF CEO. THERE IS NO DISPUTE THAT THOUGH , ADDITION HAS BEEN CONFIRMED BUT PERSONAL USER CANNOT BE APPLIED IN CASE OF COMPANY. EVEN OTHERWISE THE EXPENSES ARE DISALLOWED ON ACCOUNT OF CERTAIN EXPENDITURE, OF WH ICH EACH AND EVERY DETAILS WAS FURNISHED BY THE ASSESSEE BEFORE THE AO. THEREFORE, IT CANNOT BE SAID THAT ASSESSEE HAS CONCEALED ANY PARTICULAR OF INCOME OR HAS FURNISHED INACCURATE PARTICULAR. THEREFORE, WE ARE OF THE VIEW THAT PENALTY ON THE ELECTRICITY EXP ENSES IS NOT LEVYABLE. ACCORDINGLY, WE DELETE THE LEVY OF PENALTY ON THIS AMOUNT ALSO. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 06 &0 70 )0 8' ORDER PRONOUNCED ON 10 TH DAY JULY, 2013 . 4 23' 6 10.07.2013 3 SD/- SD/- ( N. K. BILLAIYA ) ( R.K. GUPTA ) $ / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: DATED : 10.07..2013 . . /. PRAMOD KUMAR, PS. 4 4 4 4 ,0 ,0 ,0 ,0 :'0 :'0 :'0 :'0 / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT 3. ; ) ( / THE CIT(A) 4. ; / CIT - CONCERNED 4 ITA 3823 M 2012 S GE ADVISORS (INDIA) PVT. LTD. VS. DCIT-2(3), 5. < ,0 , , / DR, ITAT, MUMBAI 6. =& > / GUARD FILE 4 4 4 4 / BY ORDER, ? ?? ? / 8 8 8 8 ) ) ) ) (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI