DCIT 9(2), MUMBAI V. MOTILAL LAXMINARYAN CONSTRUCTION P.LTD, MUMBAI

ITA 4127/MUM/2011

• Counselvise Citation: 412719914 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 19-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA
• Assessee Lawyers: RAKESH JOSHI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . . , ! ! ! ! , ' ' ' ' # # # # BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 4127/MUM./2011 ( $ % &% / ASSESSMENT YEAR : 200809 ) DY. COMMISSIONER OF INCOME TAX RANGE9(2), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .. '( / APPELLANT $ V/S M/S. MOTILAL LAXMINARAYAN CONSTRUCTION PVT. LTD. LAXMISADAN, BAJAJ ROAD KANDIVALI (W), MUMBAI 400 067 .... )*'( / RESPONDENT ' ' ./ + ./ PAN/GIR NO.AACCM7199M , - / REVENUE BY : MR. P.C. MOURYA $ %./ , - / ASSESSEE BY : MR. RAKESH JOSHI $ , /' / DATE OF HEARING 28.06.2012 0 12& , /' / DATE OF ORDER 06/07/2012 0 / ORDER PER B.R. MITTAL, J.M. THE PRESENT APPEAL PREFERRED BY THE REVENUE, IS DIR ECTED AGAINST THE IMPUGNED ORDER 1 ST MARCH 2011, PASSED BY THE LEARNED COMMISSIONERXX, MUMBAI, FOR ASSESSMENT YEAR 200809, ON THE FOLLOWI NG GROUNDS: M/S. MOTILAL LAXMINARAYAN CONSTRUCTION PVT. LTD. 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O F ` 27,87,063, OVERLOOKING THE FACT THAT THE ASSESSEE HAD INCURRED EXPENSES IN CASH OF ` 2,78,70,637 AND HAD FAILED TO PROVE WITH CORROBORA TIVE EVIDENCE THAT THESE EXPENSES WERE INCURRED WHOLLY AND EXCLUS IVELY FOR THE PURPOSE OF BUSINESS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O F ` 27,87,063 BY NOTING THAT THESE WERE ADHOC ADDITION, IGNORING TH E FACT THAT ADDITION MADE ON IDENTICAL GROUNDS IN ASSESSMENT YEARS 2003 04 AND 200405 WERE SUSTAINED BY THE LEARNED CIT(A) TO THE EXTENT OF 5% OF THE TOTAL EXPENSES INCURRED IN CASH. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PA RTIES AND HAVE CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. 3. AT THE TIME OF HEARING, THE LEARNED DEPARTMENTAL RE PRESENTATIVE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) H AS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NONFUR NISHING OF THE BILLS / VOUCHERS OF THE EXPENDITURE CLAIMED BY THE ASSESSEE AMOUNTING TO ` 2,78,70,637. HE SUBMITTED THAT ON IDENTICAL FACTS I N THE PRECEDING ASSESSMENT YEARS, THE LEARNED COMMISSIONER (APPEALS ) SUSTAINED ADDITION TO THE EXTENT OF 5% OF TOTAL EXPENDITURE INCURRED IN C ASH. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS NO OBJECTION IF 5% OF THE EXPENDITURE CLAIMED BY THE A SSESSEE IS DISALLOWED BY FOLLOWING THE EARLIER ORDERS FOR ASSESSMENT YEARS 2 00506 AND 200607. 5. WE OBSERVE THAT THERE IS NO DISPUTE TO THE FACT THA T THE ASSESSEE COULD NOT PRODUCE ALL THE VOUCHERS / BILLS IN RESPECT OF THE EXPENDITURE INCURRED BY THE ASSESSEE IN CASH AGGREGATING TO ` 2,78,70,637, DETAILS OF WHICH ARE GIVEN BY THE ASSESSING OFFICER AT PAGE2 OF THE ASSESSMEN T ORDER. IT IS ALSO NOT IN DISPUTE THAT SOME OF THE VOUCHERS / DETAILS ARE UN DATED OR UNSIGNED AND WERE NOT SUPPORTED WITH RELEVANT BILLS. CONSIDERING THE SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AND THE FACT S IN THE ASSESSMENT YEARS 200506 AND 200607, THE LEARNED COMMISSIONER (APPE ALS) SUSTAINED DISALLOWANCE OF 5% OF THE EXPENDITURE CLAIMED BY TH E ASSESSEE IN CASH, WE SUSTAIN THE DISALLOWANCE OF 5% OF THE EXPENDITURE C LAIMED BY THE ASSESSEE M/S. MOTILAL LAXMINARAYAN CONSTRUCTION PVT. LTD. 3 AMOUNTING TO ` 2,78,70,637, IN CASH FOR WHICH THE ASSESSEE COULD NOT PRODUCE ALL THE DETAILS / VOUCHERS, HENCE, WE SUSTA IN THE ADDITION OF ` 13,93,531, BY MODIFYING THE ORDERS OF THE AUTHORITI ES BELOW. ACCORDINGLY, GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE ALLOWED IN PART. 6. . /3 , 0 / 4 , / 56 7 11. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOW ED. 0 , 2& ' 8 9$3 6 TH JULY 2012 2 , : 7 ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JULY 2012 SD/- ! ! ! ! ' ' ' ' RAJENDRA ACCOUNTANT MEMBER SD/- . . B.R. MITTAL JUDICIAL MEMBER MUMBAI, DATED: 6 TH JULY 2012 COPY TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, B BENCH, ITAT, MUMBAI. *;/ )/ / TRUE COPY 0$ 0$ 0$ 0$ / BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY < << < / 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI