ACIT 10(1), MUMBAI V. ONWARD E-SERVICES LTD, MUMBAI

ITA 5163/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75384 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 31-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 13-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Keywords: Opportunity of being heard; Revised return
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 4917/MUM/2012 ASSESSMENT YEAR: 2009-10 M/S. ONWARD E-SERVICES LTD. 2 ND FLOOR, STERLING CENTRE, WORLI, MUMBAI-. 400 018 VS. ACIT RANGE 10(1) MUMBAI. (APPELLANT) (RESPONDENT) ITA NO. 5163/MUM/2012 ASSESSMENT YEAR: 2009-10 ACIT RANGE 10(1) MUMBAI. VS. M/S. ONWARD E-SERVICES LTD. 2 ND FLOOR, STERLING CENTRE, WORLI, MUMBAI-. 400 018 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAACO 6297 N ASSESSEE BY : SHRI PARESH SHAPARIA REVENUE BY : SHRI PITAMBAR DAS DATE OF HEARING : 31.12.2013 DATE OF PRONOUNCEMENT : 15.01.2014 O R D E R PER DR.S.T.M.PAVALAN: THESE CROSS APPEALS FILED BY THE ASSESSEE AND THE R EVENUE ARE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-21, MUMBAI DATED 01.05.2012 FOR THE ASSESSMENT YEAR 2009-10. BOTH THE APPEALS ARE HEARD TOGETHER AND DISPOSED OF F BY THIS COMMON ORDER. ASSESSEES APPEAL-ITA NO. 4917/MUM/2012 2. GROUND NO. 1 RELATES TO THE DECISION OF THE LD.C IT(A) IN CONFIRMING THE DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO PF & ESI C AMOUNTING TO RS.30,09,176/- & ITA NO. 4917/MUM/2012 ITA NO. 5163/MUM/2012 M/S. ONWARD E-SERVICES LTD. ASSESSMENT YEAR: 2009-10 2 RS.2,47,703/- RESPECTIVELY PAID AFTER THE DUE DATES UNDER THE RESPECTIVE ACTS BUT BEFORE DUE DATE OF FILING THE RETURN OF INCOME. 2.1 AT THE OUTSET IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE TRIBUNAL, VIDE ORDERS DATED 06.06.2012 & 31.07.2013 IN THE ASSESSEES OWN CASES FOR THE ASSESSMENT YEARS 2008-09 AND 2006-07 RESPECTIVELY, HAS DECIDED SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. THE TRIBUNAL, IN THE SAID CASES WHILE DECIDING THE ISSU E, IN TURN HAS RELIED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ALOM EXTRUSIO NS REPORTED IN 319 ITR 306. IN THE ABSENCE OF ANY DISTINGUISHING FACT/POSITION OF LAW BROUGHT ON RECORD BY THE REVENUE FOR THE YEAR UNDER CONSIDERATION TO JUSTIFY THE DEPARTU RE FROM THE DECISION OF THE TRIBUNAL, WE, BY FOLLOWING THE SAID ORDERS OF THE TRIBUNAL, D ECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND THEREBY DELETE THE ADDITION/DISALLOWAN CE MADE/CONFIRMED BY THE AUTHORITIES BELOW ON THIS COUNT. GROUND NO. 1 IS ALLOWED. 3. IN GROUND NO. 2, THE ASSESSEE HAS AGITATED THE A CTION OF THE LD.CIT(A) IN CONFIRMING THE DECISION OF THE AO ON THE ISSUE OF N ON GRANT OF CLAIM OF REVERSAL OF LEAVE ENCASHMENT PROVISION OF RS.17,39,645/-. 3.1 HAVING HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD, IT IS RELEVANT TO STATE THAT IT IS THE CLAIM OF THE ASSESSEE THAT THE LEAVE ENCASHMENT PROVISION HAS BEEN DISALLOWED IN EARLIER YEARS U/S 43B OF THE ACT AND THE REVERSAL OF THE PROVISION IS NOT LIABLE TO BE TAXED IN THE CURRENT YEAR. CONSIDERING THE FA CTS IN TOTO, IT IS JUST AND PROPER TO REMIT BACK THE ISSUE TO THE FILE OF THE AO TO VERIFY WHET HER THE LEAVE ENCASHMENT PROVISION HAS BEEN DISALLOWED UNDER THE SECTION 43B AND OFFERED T O TAX IN EARLIER YEARS AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON SUCH VERIFICATION, IF IT IS FOUND THAT THE LEAVE ENCASHMENT PROVISION HAS BEEN DISALLOWED AND OFFERED TO TAX IN EARLIER YEARS, THE AO CANNOT BRING SAME AMOUNT FOR TAXATION DURING THE YEAR UNDER CONSIDERATION. WE ARE DIRECT AND ORDER ACCORDINGLY. GROUND NO. 2 IS ALLOWED FOR STATISTICAL PURPOSE. REVENUES APPEAL ITA NO. 5163/MUM/2012 4. IN GROUND NO. 1, THE REVENUE HAS AGITATED THE AC TION OF THE LD.CIT(A) IN DIRECTING THE AO TO ACCEPT THE CLAIM/BENEFITS CLAIMED IN REVI SED STATEMENT OF INCOME. 4.1 HAVING HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE ASSESSEE HAS FILED REVISED COMPUTA TION OF INCOME VIDE LETTER DATED ITA NO. 4917/MUM/2012 ITA NO. 5163/MUM/2012 M/S. ONWARD E-SERVICES LTD. ASSESSMENT YEAR: 2009-10 3 05.12.2011 IN WHICH THE ASSESSEE CLAIMED CERTAIN BE NEFITS AND ALSO OFFERED CERTAIN INCOME FOR TAXATION. HOWEVER, THE SAME WAS NOT ACCEPTED BY THE AO. IN THIS CONNECTION, IT IS PERTINENT TO MENTION THAT SIMILAR ISSUE HAS BEEN DE CIDED BY THE TRIBUNAL VIDE ORDER DATED 06.06.2012 IN THE ASSESSEES OWN CASE FOR THE ASSES SMENT YEAR 2008-09, WHEREIN IT HAS BEEN HELD THAT THE AMOUNT ADMISSIBLE AS PER LAW EVE N THOUGH ASSESSEE HAS NOT FILED REVISED RETURN IS ALLOWABLE. IN THE SAID CASE, THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY RELYING ON VARIOUS DECISIONS OF THE TRIBUNAL AND HIGH COURTS. IN THE ABSENCE OF ANY DISTINGUISHING FACTS OR POSITION OF LAW DEMONSTRATED BY THE REVENUE, WE DECIDE THIS ISSUE AGAINST THE DEPARTMENT AND IN FAV OUR OF THE ASSESSEE BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE AS AFOREMENTIONED. GROUND NO. 1 IS DISMISSED. 5. IN GROUND NO. 2, THE REVENUE HAS AGITATED THE AC TION OF THE LD.CIT(A) IN DELETING THE DISALLOWANCE OF RS.67,82,667/- ON ACCOUNT OF CL AIM OF REVERSAL OF INTEREST REIMBURSEMENT TO PARENT COMPANY WHICH WAS NOT CLAIM ED IN THE ORIGINAL RETURN. 5.1 AT THE OUT SET, IT HAS BEEN BROUGHT TO OUR NOTI CE THAT ON THE SAID CLAIM, THE TRIBUNAL, VIDE ORDER DATED 06.06.2012, IN THE ASSES SEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09, HAS ALLOWED THE IMPUGNED AMOUNT OF RS .67,82,667/- ON ACCOUNT OF INTEREST PAID TO PARENT COMPANY ON THE BASIS OF THE REVISED RETURN FILED BY THE ASSESSEE. THEREFORE, IN OUR CONSIDERED VIEW, THE REVERSAL OF INTEREST REIMBURSEMENT TO PARENT COMPANY SHOULD BE TAXED DURING THE YEAR UNDER CONSI DERATION AS CLAIMED BY THE REVENUE. ACCORDINGLY GROUND NO. 2 IS ALLOWED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED AND THAT OF THE REVENUE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF JANUARY, 2014. SD/- SD/- (D. KARUNAKARA RAO) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 15. 01.2014. *SRIVASTAVA ITA NO. 4917/MUM/2012 ITA NO. 5163/MUM/2012 M/S. ONWARD E-SERVICES LTD. ASSESSMENT YEAR: 2009-10 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.