ASK INVESTMET MANAGERS P.LTD, MUMBAI V. ASST CIT CIR 6(1), MUMBAI

ITA 4167/MUM/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3523 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 15-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2014
• Court: TRIBUNAL
• Department Lawyers: J D MISTRI; SHRI L K S DEHIYA
• Section: 143(3); 154; 15

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.4167/MUM/2014 ASSESSMENT YEAR: 2009-10 ASK INVESTMENT MANAGERS PRIVATE LIMITED, 1 ST FLOOR, BANDBOX HOUSE, 254-D, DR. ANNIE BESANT ROAD, WORLI, MUMBAI-400030 / VS. ACIT, CIRCLE-6(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( '#$ % /ASSESSEE) ( & / REVENUE) PAN. NO. AAFCA2302P ' &( ) % * / DATE OF HEARING : 04/07/2016 ) % * / DATE OF ORDER: 04/07/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE F OR ASSESSMENT YEAR 2009-10 AGAINST THE ORDER OF LD. '#$ % ! / ASSESSEE BY SHRI J.D. MISTRI & ! / REVENUE BY SHRI L.K.S. DEHIYA-CIT-DR ITA NO.4167/MUM/2014 M/S ASK INVESTMENT MANAGERS PVT. LTD. 2 COMMISSIONER OF INCOME TAX (APPEALS)-14, MUMBAI DAT ED 11/04/2014. 2. THE GRIEVANCE OF THE ASSESSEE REVOLVES AROUND QUESTION OF TAXATION OF INVESTMENT ADVISORY FEES P ERTAINING TO DIFFERENT ASSESSMENT YEARS. THE GRIEVANCE RELATES B OTH WITH AMOUNT OF TAXABILITY AND YEAR OF TAXABILITY. 2.1. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY WHO HAD FILED ITS RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR ON 30/09/2009. THE SAME WA S PROCESSED U/S 143(3) OF THE INCOME TAX ACT, VIDE LD . ASSESSING OFFICER ORDER DATED 29/12/2011. AGGRIEVED , THE ASSESSEE PREFERRED APPEAL AGAINST THE SAID ORDER BE FORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE SAME W AS DISPOSED OFF VIDE ORDER DATED 27/02/2014, WHEREIN, INTER ALIA, A NEW ADDITION OF GBP 14,78,484/- WAS MADE BY LD. COMMISSIONER OF INCOME TAX (APPEALS). THIS AMOUNT W AS RELATED WITH ADVISORY FEES DUE FROM INDIA VALUE INV ESTMENT LTD., WHICH WAS NOT CREDITED INTO THE PROFIT & LOSS ACCOUNT AND WHILE GOING THROUGH THE DOCUMENTS AVAILABLE ON RECO RD, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ENHANCED T HE ASSESSMENT TO THE EXTENT OF GBP 14,78,484/-. THE S ECOND APPEAL AGAINST THE INSTANT ORDER OF LD. ASSESSING O FFICER WAS FILED BEFORE THE ITAT, MUMBAI BENCH, VIDE ITA NO.2394/MUM/2014. THE MUMBAI BENCH OF THIS TRIBUNAL VIDE ORDER DATED 09/01/2015 HELD AS UNDER:- 13. WE HAVE HEARD THE PARTIES ON THIS ISSUE AND PERUS ED THE RECORD. ACCORDING TO LD A.R, THE ASSESSEE HAS REACHED SETTLEME NT WITH M/S INDIA VALUE INVESTMENT LTD WITH REGARD TO THE INVESTM ENT ADVISORY FEE RECEIVED FROM THEM ON 09-04-2009 AND THE AMOUNT DUE FROM ITA NO.4167/MUM/2014 M/S ASK INVESTMENT MANAGERS PVT. LTD. 3 THEM WAS SETTLED AT GBP 12,14,022. ACCORDING TO LD A .R, THE ASSESSEE HAS OFFERED THE RUPEE EQUIVALENT OF THE ABOVE SAID AMO UNT IN AY 2010-11. SINCE THE ASSESSEE HAS SETTLED THE AMOUNT AT GBP 12,14,022, WE ARE OF THE VIEW, OF COURSE SUBJECT TO VERIFICATIO N, THAT THE INCOME THAT SHOULD BE CONSIDERED IN THE HANDS OF THE ASSESSEE SHOULD NOT EXCEED THE RUPEE EQUIVALENT OF GBP 12,14,022 AS PER THE SETTLEMENT AGREEMENT. 14. THE NEXT QUESTION THAT ARISES IS THE YEAR IN WHICH T HE RUPEE EQUIVALENT OF GBP 12,14,022 (SUBJECT TO VERIFICATIO N) IS REQUIRED TO BE ASSESSED, I.E., IN ASSESSMENT YEAR 2009-10 (AS PER LD CIT(A) OR IN AY 2010-11 (AS PER THE ASSESSEE) OR IN RESPECTIVE YEAR OF ACCRUAL (AS PER THE REVENUE). WE HAVE ALREADY NOTICED THAT THE LD CIT (A) TOOK THE VIEW TO ASSESS THE ENTIRE AMOUNT OF INCOME IN AY 200 9-10 ONLY FOR THE REASON THAT THE ASSESSEE HAS FAILED TO FURNISH THE DETA ILS. THE SUBMISSIONS OF THE ASSESSEE THAT THE SETTLEMENT WAS RE ACHED ON 09- 04-2009 AND IT HAS OFFERED THE ENTIRE AMOUNT OF RUPE E EQUIVALENT OF GBP 12,14,022 IN ASSESSMENT YEAR 2010-11 ARE NEW FA CTS THAT WERE NOT AVAILABLE BEFORE LD CIT(A). HENCE, IN OUR VIEW, THE QUESTIONS OF YEAR OF ACCRUAL AND/OR YEAR OF ASSESSMENT ARE T O BE CONSIDERED AFRESH AT THE END OF THE LD CIT(A) IN THE LIGHT OF NEW F ACTS BROUGHT ON RECORD BY THE ASSESSEE. 15. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) WITH REGARD TO THE ASSESSMENT OF GBP 14,78,484 OR AS THE CASE MAY BE GBP 12,14,022 AND RESTORE THE SAME TO HIS FILE WITH THE DIRECTION TO EXAMINE ABOUT THE ASSESSABILITY OF THE SAME AFRESH, I.E., YEAR OF A CCRUAL AND/OR YEAR OF ASSESSMENT, IN THE LIGHT OF THE FACTS SURROUNDING THE SAME AND ACCORDINGLY DECIDE THE ISSUE IN ACCORDANCE WITH THE LA W. THE ASSESSEE IS ALSO DIRECTED TO FULLY CO-OPERATE WITH THE LD CIT( A) BY FURNISHING ALL THE DETAILS THAT MAY BE REQUIRED TO ADJUDICATE THIS I SSUE AND THAT MAY BE CALLED FOR BY LD CIT(A). 2.2. IN THE MEANTIME, DURING THE PENDENCY OF APPEA L BEFORE THE ITAT AND CONSEQUENT TO THE ORDER OF THE LD. CIT(A), THE ASSESSEE FILED AN APPLICATION FOR RECTIFICATION U/S 154 OF THE INCOME TAX ACT BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) RAISING FOLLOWING GROUNDS:- I. THE ENTIRE DISPUTED INVESTMENT ADVISORY FEES OF RS.10,07,63,267/- HAS BEEN ADDED IN A.Y. 2009-10 AN D II. THE DISPUTED INCOME OF INVESTMENT ADVISORY FEES HAS BEEN OFFERED TO TAX BY THE ASSESSEE IN A.Y. 2010-11 AND THEREFORE HAS REQUESTED TO ISSUE DIRECTION TO THE A.O. TO RED UCE THIS INCOME FROM A.Y. 2010-11. ITA NO.4167/MUM/2014 M/S ASK INVESTMENT MANAGERS PVT. LTD. 4 III. IT IS ALSO STATED THAT THE TOTAL INCOME RECEIVED WA S ONLY GBP OF RS.12,14,022/- ON A.Y. 2010-11 AND NOT GBP OF RS.14,78,484/- WHICH HAS BEEN CONSIDERED IN THE AP PELLATE ORDER OF A.Y. 2009-10. 2.3. THE ORDER U/S 154 WAS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) VIDE ITS ORDER DATED 11/04/2014, WHEREIN, THE MATTER WAS ADJUDICATED AS UNDER:- 3. FROM THE APPELLATE ORDER IT IS EVIDENT THAT THE ENHANCEMENT OF RS.10,07,63,268/- HAS BEEN DISCUSSED IN DETAIL AND ALSO THE REASONS HAVE BEEN PROVIDED AS T O WHY THE INCOME IS CONSIDERED IN THE A.Y. 2009-10. THE C LAIM OF THE APPELLANT THAT THE ADDITION SHOULD BE DELETED I N A.Y. 2010-11 IS OUTSIDE THE PURVIEW OF THIS APPELLATE OR DER. IT REQUIRES FRESH INVESTIGATION OF FACTS WHICH IS NOT WITHIN THE REALM OF CONSIDERATION DURING THE YEAR. FURTHER, TH E RECEIPT OF LESS INCOME BY THE APPELLANT THAN THE ASCERTAINE D AMOUNT DISCLOSED IN THE ACCOUNTS IN THE SUBSEQUENT YEAR ALSO REQUIRES FRESH INVESTIGATION OF FACTS AND IS A LSO OUTSIDE THE PURVIEW OF CONSIDERATION FOR A.Y. 2009- 10. THE ARGUMENT OF THE A.R. THAT DIRECTION TO BE ISSUED TO A.O. TO REDUCE THE INCOME IN A.Y. 2010-11 IS ALSO REJECTED AS ITS IS OUTSIDE THE PURVIEW OF ADJUDICATION OF APPEAL FOR A .Y. 2010-11. 4. IN VIEW OF THE AFORESTATED DISCUSSION THE REQUEST OF THE ASSESSEE CANNOT BE CONSIDERED U/S 15 4 AS THIS IS NOT MISTAKE APPARENT FROM RECORD. THEREFORE , THE RECTIFICATION APPLICATION FILED BY THE APPELLANT ST ANDS REJECTED AND IS DISMISSED. 2.4. THE PRESENT APPEAL HAS BEEN FILED AGAINST THI S ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) U/S 154 OF THE ACT. BEFORE US, THE LD. AR HAS CONTENDED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BE DIRECTE D TO MAKE RECTIFICATION AS PER APPLICATION OF THE ASSESSEE FI LED U/S 154 OF THE ACT. ON THE OTHER HAND, THE LD. DR HAS SUPPORT ED THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) AND CONTENDED THAT THERE IS NO MISTAKE APPARENT FROM RE CORD AND ITA NO.4167/MUM/2014 M/S ASK INVESTMENT MANAGERS PVT. LTD. 5 HENCE APPLICATION U/S 154 OF THE ASSESSEE CANNOT BE PROCEEDED WITH ON THE ISSUES RAISED BY THE ASSESSEE . 3. WE HAVE HEARD BOTH THE PARTIES AND NOTICED THAT THE MATTER IN DISPUTE HAS ALREADY BEEN DECIDED BY THE T RIBUNAL VIDE ITS ORDER DATED 09/01/2015 IN ITA NO.2394/MUM/ 2014. THE CLEAR CUT DIRECTION HAVE BEEN GIVEN TO THE LOWE R AUTHORITIES AS PER PARAGRAPH NOS. 13, 14 AND 15 WHI CH HAVE ALREADY BEEN REPRODUCED ABOVE. THE ORDER OF THE ITA T HAS BEEN PASSED SUBSEQUENT TO THE APPLICATION OF THE AS SESSEE U/S 154 OF THE ACT. THE DIRECTIONS HAVE ALREADY BEEN GI VEN TO EXAMINE THE ASSESSABILITY OF SAME AFRESH I.E. YEAR OF ACCRUAL AND/OR YEAR OF ASSESSMENT. IN VIEW OF THE CRYSTAL C LEAR DIRECTIONS OF THE ITAT, WE NEED NOT INTERFERE IN TH E MATTER, THEREFORE, WE FIND NO MERIT IN THE APPEAL OF THE AS SESSEE AND THE SAME IS DISMISSED AS INFRUCTUOUS. IT IS NEEDLE SS TO SAY THAT THE SAME INCOME CANNOT BE TAXED TWICE AND THE ASSESSEE IS AT LIBERTY TO PLEAD HIS CASE IN THIS REGARD BEFO RE LOWER AUTHORITIES DURING PROCEEDINGS. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 04/07/2016. SD/- SD/- ( JASON P. BOAZ ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER ' ( MUMBAI; + DATED : 04/07/2016 F{X~{T? P.S / /. . . ITA NO.4167/MUM/2014 M/S ASK INVESTMENT MANAGERS PVT. LTD. 6 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE RESPONDENT. 3. 1 1 ' 2% ( , ) / THE CIT, MUMBAI. 4. 1 1 ' 2% / CIT(A)- , MUMBAI, 5. 4&5 /%' , 1 ,* ,' 6 , ' ( / DR, ITAT, MUMBAI 6. 7# 8( / GUARD FILE. ! / BY ORDER, 04% /% //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI