MRS.RITY SANJAY TOSHNIWAL , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 21(3), MUMBAI

ITA 4258/MUM/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5450 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 19-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI LD DR
• Assessee Lawyers: RAKESH MOHAN LD
• Keywords: Additional evidence; Revised return

Judgement Text

ITA NO.4258/MUM/2018 RITU SANJAY TOSHNIWAL ASSESSMENT YEAR-2013-14 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.4258/MUM/2018 ( ASSESSMENT YEAR: 2013-14) MRS. RITU SANJAY TOSHNIWAL 206, CASA GRANDE TOWER-B SENAPATI BAPAT MARG, LOWER PAREL MUMBAI-400 013 VS. ASSISTANT COMMISSIONER OF INCOME TAX-21(3) MUMBAI ! ' PAN/GIR NO. AAAPT-6005-G ( !# APPELLANT ) : ( $%!# RESPONDENT ) A SSESSEE BY : RAKESH MOHAN, LD.AR RE VENUE BY : RAM TIWARI, LD. DR & DATE OF HEARING : 19/07/2018 '() / DATE OF PRONOUNCEMENT : 25/07/2018 O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2013-14 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-33 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-33/RG.21/94/2016-17 DATED 31/05/2018 BY RAISING THE FOLLOWING SOLE GROUND OF APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED A.O. ERRED IN NOT REDUCING THE TAXABLE INCOME BY RS.4,94,48,28 0/- BEING THE COMMISSION EXPENSE WRITTEN BACK IN THE PROFIT & LOSS ACCOUNT. THE LD. CIT(A) HAS UPHELD THE ACTION OF THE LD. AO AND FAILED TO APPRECIATE THE C LAIM OF THE APPELLANT. ITA NO.4258/MUM/2018 RITU SANJAY TOSHNIWAL ASSESSMENT YEAR-2013-14 2 THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX-21(3), MUMBAI [AO] U/S 1 43(3) OF THE INCOME TAX ACT, 1961 ON 09/03/2016 WHEREIN THE RETURNED INCOME OF RS.506.19 LACS WAS ACCEPTED. 2. DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THAT THE ASSESSEE HAD CREDITED AN AMOUNT OF RS.494.48 LACS IN THE PRO FIT & LOSS ACCOUNT AS AMOUNT NO MORE PAYABLE W/BACK . IT WAS EXPLAINED THAT THE SAME REPRESENTED PROVISIONS MADE IN THE BALANCE SHEET FOR PAYMENT OF COMMISSION EXPENSES. THE SAID PROVISIONS WERE STATE D TO BE MADE BY DEBITING PROFIT & LOSS ACCOUNT DURING VARIOUS YEARS BEGINNING FROM AY 2005-06. IT WAS FURTHER SUBMITTED THAT THE SAID SUM WAS ALREADY BEEN ADDED BACK / DISALLOWED DURING ASSESSMENT PROCEEDIN GS FOR AYS 2007- 08 TO 2010-11 AND THEREFORE, THE SAME SHOULD BE RED UCED FROM THE INCOME OF THE IMPUGNED AY. HOWEVER, LD. AO, RELYING UPON THE DECISION OF HONBLE APEX COURT RENDERED IN GOETZE INDIA LTD. 284 ITR 323, OPINED THAT THE NEW CLAIM COULD NOT BE ADMITTED OTH ERWISE THAN BY WAY OF FILING THE REVISED RETURN OF INCOME. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 31/05/2 018 WHEREIN LD. CIT(A) REJECTED THE ASSESSEES SUBMISSIONS ON THE P REMISE THAT THAT THE ASSESSMENT FOR EARLIER YEARS HAD NOT ATTAINED FINAL ITY. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE SOLE PLEA RAISED BY LD. AR IS THAT THE MATTE R MAY BE REMITTED BACK TO THE FILE OF LD. AO AS DONE BY THE TRIBUNAL FOR EARLIER AYS SO AS TO ENABLE THE LOWER AUTHORITIES TO TAKE A HOLISTIC VIE W IN THE MATTER WHICH ITA NO.4258/MUM/2018 RITU SANJAY TOSHNIWAL ASSESSMENT YEAR-2013-14 3 HAS BEEN CONTROVERTED BY LD. DR BY SUBMITTING THAT THE ASSESSEE DID NOT HAVE ANY GRIEVANCE SINCE RETURNED INCOME HAS BEEN A CCEPTED. 5. WE HAVE CAREFULLY PERUSED THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. IT IS TRITE LAW THAT S AME INCOME COULD NOT BE TAXED TWICE IN THE HANDS OF THE SAME ASSESSEE. THE PERUSAL OF COMMON ORDER OF THIS TRIBUNAL FOR AYS 2009-10 & 2010-11 [ ITA NO. 7213/MUM/2014 & 7725/MUM/2014 DATED 12/05/2017] AS PLACED ON RECORD REVEAL THAT THE ASSESSEE CONTESTED THE DISAL LOWANCE OF FOREIGN COMMISSION AND SUBMITTED ADDITIONAL EVIDENCES. IN T HE LIGHT OF ADDITIONAL EVIDENCES, THE MATTER WAS REMITTED BACK TO THE FILE OF LD. AO FOR RE- ADJUDICATION. FOLLOWING THE SAME ORDER, THE MATTER FOR AYS 2007-08 & 2008-09 [ITA NO. 4839 &4840/MUM/2016 DATED 22/11/20 17] WAS ALSO REMITTED BACK TO THE FILE OF LD. AO ON SIMILAR LINE S. 6. FROM THE ABOVE DISCUSSION, IT IS CLEAR THAT THE MATTER FOR EARLIER AYS VIZ. 2007-08 TO 2010-11 HAS NOT ATTAINED FINALITY A ND THE SAME ARE STATED TO BE BEFORE LD. AO FOR RE-ADJUDICATION. KEEPING IN VIEW THE SUBMISSION OF THE ASSESSEE THAT THE IMPUGNED CREDIT OF RS.494. 48 LACS REPRESENTS REVERSAL OF COMMISSION EXPENSES FOR AYS. 2007-08 TO 2010-11, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF LD . AO FOR RE-ADJUDICATING THE SAME IN THE LIGHT OF OUTCOME OF ASSESSMENT PROCEEDI NGS FOR THOSE YEARS. 7. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2018 SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER *& MUMBAI; DATED : 25.07.2018 SR.PS:-THIRUMALESH ITA NO.4258/MUM/2018 RITU SANJAY TOSHNIWAL ASSESSMENT YEAR-2013-14 4 ! COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - -) *& / DR, ITAT, MUMBAI 6. , ./0 & GUARD FILE ' / BY ORDER, # '$% (DY./ASSTT.REGISTRAR) *& / ITAT, MUMBAI