ADDL CIT RG 19(2), MUMBAI V. MEENA D. GUPTA, MUMBAI

ITA 5208/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8538 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 04-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 07-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JITENDRA SINGH; SATENDRA PANDEY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHRI B. R. MITTAL, JM AND SHRI B. R. JAIN, A M ITA NO.5208/MUM/2011 ASSESSMENT YEAR: 2007 -08 A.C.I.T. - 19(2), ROOM NO. 315, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400 012. VS. MR. MEENA D. GUPTA 3-CYNTHIA MAIN AVENUE, S.V. ROAD, SANTACRUZ (W), MUMBAI 400 054. PAN NO : AAEPG 3383 L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JITENDRA SINGH & SHRI SATENDRA PANDEY RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARI NG : 0 4 .10.2012 DATE OF PRONOUNCEMENT : 0 4 .10.2012 ORDER PER B. R. JAIN, A.M. : THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 21.04.2011 OF LD. CIT(A)-35, MUMBAI RAISES THE FOLLOWING GROUNDS IN APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE DI SALLOWANCE TO `. 82,817/- BEING 5% OF CASH EXPENDITURE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THAT THE A SSESSEE HAS NOT SUBSTANTIATED THAT THE PAYMENTS MADE TOWARDS TH E RUNNING AND MAINTENANCE EXPENSES MERE FOR THE PURPO SE OF BUSINESS ONLY. ITA NO : 5208/MUM/2011 SMT. MEENA D. GUPTA 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING DRIVERS AND CLEANERS SALARY WITHOUT APPRECIATING THE FACT THAT THE ASSES SEE COULD NOT ESTABLISH DURING THE ASSESSMENT PROCEEDINGS TH AT ALL THE CLAIM OF DRIVERS AND CLEANERS SALARY PERTAINS TO T HE VEHICLE OF THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THAT THE D EPARTMETN HAS NOT ACCEPTED THE DECISION OF LD. CIT(A) IN THE ASSESSEES OWN CASE FOR THE EARLIER YEAR. 5. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE A.O. BE R ESTORED. 2. BRIEFLY THE FACTS ARE THAT THE ASSESSEE DERIVES INCOME FROM BUSINESS OF GIVING BUSES ON HIRE BESIDES HAVING INCOME FROM HOUSE PROPERTY. THE ASSESSING OFFICER MADE A DISALLOWANCE OF `. 12,84,366/- ON ACCOUNT OF RUNNING AND MAINTENANCE AND ADMINISTRATIVE EXPENSES AGGREGATING TO `. 51,37,465/- INCURRED IN CASH UNDER THE HEADS OF ACC OUNT TOLL CHARGES, RUNNING EXPENSES, TRIP EXPENSES, REPAIRS AND MAINTE NANCE, RTO TAX, OIL ACCOUNT, SPARE PARTS AND DRIVERS/CLEANERS SALARY. THE SAID DISALLOWANCE WAS MADE @ 25%. THE BASIS OF MAKING DISALLOWANCE W AS AS PER ASSESSEES OWN HISTORY IN THE A.YS 2005-06 AND 2006 -07. THE LD. CIT(A) HOWEVER, REDUCED THE DISALLOWANCE TO THE EXTENT OF 5% OF THE CASH EXPENSES SO INCURRED EXCLUDING DRIVERS AND CLEANERS SALARY AS THE ASSESSING OFFICER HIMSELF COMPLETED THE ASSESSMENT ON SAME BASIS IN THE SUBSEQUENT YEAR I.E. 2008-09. HE THUS REDUCED THE DISALLOWANCE IN VARIOUS GROUNDS IN APPEAL TO `. 82,817/- AS AGAINST THE DISALLOWANCE OF `. 12,84,366/-. ITA NO : 5208/MUM/2011 SMT. MEENA D. GUPTA 3 3. HEARD PARTIES WITH REFERENCE TO THE MATERIAL ON RECORD. THE PARTIES FAIRLY ADMIT THAT THE MATERIAL FACTS LEADING TO DIS ALLOWANCE IN THE IMPUGNED YEAR ARE THE SAME AS WERE CONSIDERED BY TH E APPELLATE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.5379/MUM/2009 FOR THE A.Y. 2006-07 AND THE ORDER WAS RENDERED ON 08.07.2012. THIS ORD ER WAS FOLLOWED IN APPEAL FOR THE A.Y. 2005-06 BY IT IS ORDER DATED 11 .06.2012 IN ITA NO. 4520/MUM/2009. HAVING PERUSED THE MATERIAL FACTS AN D FINDINGS AND RESPECTFULLY FOLLOWING THE TRIBUNALS ORDER DATED 08 .06.2011 IN ASSESSEES OWN CASE FOR THE A.Y. 2006-07, WE UPHOLD THE DISALL OWANCE TO THE EXTENT OF 20% OF SUCH CASH EXPENSES INCURRED BY THE ASSESS EE OTHER THAN THOSE PAID IN CASH AS SALARY TO DRIVERS AND CLEANERS AS A GAINST DISALLOWANCE OF 5% SUSTAINED BY THE LD. CIT(A) AND 25% MADE BY THE ASSESSING AUTHORITY. THE ORDER OF LD. CIT(A) STANDS MODIFIED ACCORDINGLY. 4. IN THE RESULT, THE APPEAL BY THE REVENUE STANDS PARTLY ALLOWED AS PRONOUNCED IN THE OPEN COURT IN PRESENCE OF PARTIES ON 04.10.2012. SD/ - - SD/ - ( B. R. MITTAL ) ( B. R. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 04.10.2012 ITA NO : 5208/MUM/2011 SMT. MEENA D. GUPTA 4 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI