DCIT 9(2), MUMBAI V. MOTILAL LAXMINARYAN CONSTRUCITON P.LTD, MUMBAI

ITA 5334/MUM/2012

• Counselvise Citation: 533419914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Assessee Lawyers: RAKESH JOSHI

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI .. , ; BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA, J M ./ I.T.A. NO.5334 /MUM/2012 ( / ASSESSMENT YEAR : 2009-2010 DY . COMMISSIONER OF INCOME TAX 9(2), ROOM NO. 218, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI 20. / VS. MOTILAL LAXMINARAYAN CONSTRUCTION PVT. LTD., LAXMISADAM, BAJAJ ROAD, KANDIVALI (W), MUMBAI 400 067. ./ PAN :AACCM7199M ( # / APPELLANT ) .. ( $%# / RESPONDENT ) A PPELLANT BY SHRI MOURYA PRATAP R E SPONDENT BY : SHRI RAKESH JOSHI ) * / DATE OF HEARING : 05-03-2014 ) * / DATE OF PRONOUNCEMENT : 0710312014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) - 20, MUMBAI DATED 15-6-2012 WHEREBY HE DELETED THE D ISALLOWANCE OF RS. 9,40,465/- MADE BY THE A.O. BEING 10% OF THE TOTAL CASH EXPENSES INCURRED BY THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND REAL ESTATE DEVE LOPER. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 23-09-2009 DECLARING TOTAL INCOME OF RS. 1,43,39,363/-. DURING THE COURSE OF ASSESSMENT PROCEEDING, IT ITA 5334/M/12 2 WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS INCUR RED TOTAL EXPENDITURE OF RS. 94,04,651/- ON ACCOUNT OF PURCHASES ETC. IN CAS H. ON VERIFICATION OF THESE EXPENSES, THE A.O. FOUND THAT THE RELEVANT BILLS/VO UCHERS MAINTAINED BY THE ASSESSEE WERE DEFECTIVE. KEEPING IN VIEW THIS FINDI NG AND RELYING ON THE ASSESSMENTS MADE IN THE ASSESSEES CASE FOR THE EAR LIER YEARS INCLUDING A.Y. 2008-09, 10% OF THE CASH EXPENSES WERE DISALLOWED B Y THE A.O. ON APPEAL, THE LD. CIT(A) DELETED THE DISALLOWANCE MADE BY THE A.O. ON THIS ISSUE RELYING ON THE APPELLATE ORDER OF HIS PREDECESSOR FOR A.Y. 2008-09 WHEREIN A SIMILAR DISALLOWANCE WAS DELETED. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUN AL. 3. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH THE SIDES HAVE AGREED THAT A SIMILAR ISSUE INVOLVED IN ASSESSEES OWN CASE FOR A.Y. 2008-09 HAS ALREADY BEEN DECIDED BY THE TRIBUNAL VI DE PARA NO. 5 OF ITS ORDER DATED 6 TH JULY, 2012 PASSED IN ITA NO. 4127/MUM/2011 WHICH R EADS AS UNDER:- 5. WE OBSERVE THAT THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE COULD NOT PRODUCE ALL THE VOUCHERS / BILLS IN RESPE CT OF THE EXPENDITURE INCURRED BY THE ASSESSEE IN CASH AGGREGATING TO 2,7 8,70,637, DETAILS OF WHICH ARE GIVEN BY THE ASSESSING OFFICER AT PAGE2 OF THE ASSESSMENT ORDER. IT IS ALSO NOT IN DISPUTE THAT SOME OF THE V OUCHERS / DETAILS ARE UN-DATED OR UNSIGNED AND WERE NOT SUPPORTED WITH RE LEVANT BILLS. CONSIDERING THE SUBMISSIONS OF THE LEARNED REPRESEN TATIVES OF THE PARTIES AND THE FACTS IN THE ASSESSMENT YEAR 20050 6 AND 200607, THE LEARNED COMMISSIONER (APPEALS) SUSTAINED DISALL OWANCE OF 5% OF THE EXPENDITURE CLAIMED BY THE ASSESSEE IN CASH, WE SUSTAIN THE DISALLOWANCE OF 5% OF THE EXPENDITURE CLAIMED BY TH E ASSESSEE AMOUNTING TO 2,78,70,637, IN CASH FOR WHICH THE ASS ESSEE COULD NOT PRODUCE ALL THE DETAILS / VOUCHERS, HENCE, WE SUSTA IN THE ADDITION OF 13,93,531, BY MODIFYING THE ORDERS OF THE AUTHORITI ES BELOW. ACCORDINGLY, GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE ALLOWED IN PART. 4. THE TRIBUNAL THUS HAS DECIDED A SIMILAR ISSUE IN ASSESSEES OWN CASE FOR A.Y. 2008-09 SUSTAINING THE DISALLOWANCE OF 10% MADE BY THE A.O. OUT OF CASH EXPENDITURE TO THE EXTENT OF 5%. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL, WE MODIF Y THE IMPUGNED ORDER OF ITA 5334/M/12 3 THE LD. CIT(A) AND SUSTAIN THE DISALLOWANCE MADE OU T OF CASH EXPENSES TO THE EXTENT OF 5% OF THE TOTAL CASH EXPENSES. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 1014. . ) 7 8 0710312014 ) SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 8 DATED 0710312014 [ .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. ; () / THE CIT(A)20 MUMBAI. 4. ; / CIT 9 MUMBAI 5. $? , * ? , / DR, ITAT, MUMBAI H BENCH 6. / GUARD FILE. / BY ORDER, % $ //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI