DCIT CEN CIR-6, MUMBAI V. EVERSMILE CONSTRUCTION CO. P. LTD, MUMBAI

ITA 4244/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55839 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 01-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAVAN VED
• Assessee Lawyers: AARTI VISSANJI
• Keywords: Revised return
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 4244/MUM./2010 (ASSESSMENT YEAR : 2007-08 ) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-6, 9 TH FLOOR OLD CGO BUILDING ANNEXE 101, M.K. ROAD, MUMBAI 400 020 .. APPELLANT V/S EVERSMILE CONSTRUCTION CO. P. LTD. CONWOOD HOUSE, YASHODHAM DINDOSHI, GEN. A.K. VAIDYA MARG GOREGAON (E), MUMBAI 400 063 PAN AAACE0675E .... RESPONDENT REVENUE BY : MR. PAVAN VED ASSESSEE BY : MS. AARTI VISSANJI DATE OF HEARING 01.11.2011 DATE OF ORDER 23.11.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE, IS DIRECTED AGAI NST THE IMPUGNED ORDER DATED 30 TH MARCH 2010, PASSED BY THE COMMISSIONER (APPEALS)-X XXVI, MUMBAI, FOR ASSESSMENT YEAR 2007-08. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD.CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSE E ON THE INCOME DISCLOSED BY HIM IN THE RETURN OF INCOME FILED U/S 153A IGNORING THE EVERSMILE CONSTRUCTION CO. P. LTD. ITA NO. 4244/MUM./2010 2 FACT THAT THE ASSESSING OFFICER HAS MERELY ASSESSED THE TOTAL INCOME AT THE RETURNED INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) ERRED IN DETERMINING THE TOTAL INCOME AT A FIGURE LOWER THAN THE RETURNED INCOME IGNORING THE FACT THAT THE ASSESSEE DID NOT RESORT TO THE PROVISIONS OF FILING REVISED RETURN W ITHIN THE PRESCRIBED TIME AS IT ENVISAGED BY THE SUPREME COURT IN THE CA SE OF GOETZ (INDIA) LTD. 284 ITR 323. 2. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND THAT T HE GROUNDS RAISED BY THE REVENUE, HAVE TO BE DISMISSED IN LIMINI AS THEY DO NOT ARISE FROM THE IMPUGNED ORDER DATED 30 TH MARCH 2010, PASSED BY THE COMMISSIONER (APPEALS)-XXXVI, MUMBAI. LEARNED DEPARTMENTAL REPRE SENTATIVE SUBMITTED BEFORE US THAT THE REVENUE AUTHORITIES WERE DISPUTI NG THE ALLOWABILITY OF INTEREST. EVEN ON THIS COUNT, WE FIND THAT THE COMM ISSIONER (APPEALS) HAS CALLED FOR THE REMAND REPORT AND AS THE ASSESSING O FFICER OPINED THAT ONLY ` 64,87,947 REPRESENTS INTEREST COST INCURRED IN RELA TION TO GRANT OF INTEREST FREE LOANS AND ADVANCES, THE DISALLOWANCE WAS RESTR ICTED BY THE COMMISSIONER (APPEALS) TO THIS FIGURE. THE ASSESSIN G OFFICER CANNOT HAVE ANY GRIEVANCE. EVEN IN RESPECT OF DISALLOWANCE UNDE R SECTION 14A, THE COMMISSIONER (APPEALS) HAS SET ASIDE THE MATTER FOR FRESH CALCULATION IN ACCORDANCE WITH RULE 8D. HERE ALSO, THE REVENUE CAN NOT HAVE ANY GRIEVANCE. THUS, FOR ALL THESE REASONS, WE DISMISS THE GROUNDS RAISED BY THE REVENUE. 3. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD NOVEMBER 2011 SD/- V. DURGA RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 23 RD NOVEMBER 2011 EVERSMILE CONSTRUCTION CO. P. LTD. ITA NO. 4244/MUM./2010 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, G BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 21.11.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 21.11.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 22.11.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 22.11.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 22.11.2011 SR.PS 6. DATE OF PRONOUNCEMENT 23.11.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 24.11.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER