DCIT 8(3), MUMBAI V. VRUSHAL TRAIDNG P.LTD, MUMBAI

ITA 5356/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2445 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 17-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 02-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL
• Keywords: Business income

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 5356 / MUM/20 13 ( / ASSESSMENT YEA R : 200 9 - 10 ) DY.COMMISSIONER OF INCOME TAX - 8(3), ROOM NO.217, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. M/S VRUSHAL TRADING PVT.LTD., A WING, 607, 215, ATR I UM, CHAKALA, ANDHERI - KURLA ROAD, ANDHERI (E), MUMBAI - 400069 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAACV2730K / APPELLANT BY SHRI A K DHONDIAL / RESPONDENT BY NONE / DATE OF HEARING : 1 8 .11 . 201 5 / DATE OF PR ONOUNCEMENT: 1 8 .11. 201 5 / O R D E R P ER B R BASKARAN, AM : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 25.3.201 3 PASSED BY THE LD CIT(A) - 1 8, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2009 - 10. 2. THE REVENUE I S AGGRIEVED BY THE DECISION OF LD CIT(A) IN HOLDING THAT THE NON - COMPUTE FEE OF RS.1.90 CRORES RECEIVED BY THE ASSESSEE WAS NOT ASSESSABLE AS BUSINESS INCOME U/S 28(VA) OF THE ACT . 3 . NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE NOTICE OF HEARI NG WAS SENT BY REGISTERED POST TO THE ASSESSEE. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE . ITA NO. 5356 / MUM/20 1 3 2 4 . WE HEARD THE LD. DR AND PERUSED THE RECORD . WE NOTICE THAT THE LD. CIT(A) HAS DECIDE D THE ISSUE IN FAVOUR OF TH E ASSESSEE BY FOLLOWING T HE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF M/S HAMI ASPI BALSARA V/S ACIT REPORTED IN 126 ITD 100. AT THE TIME OF HEARING, THE LD.DR SUBMITTED THAT THE HYDERABAD SPECIAL BENCH OF THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN THE CASE OF ACIT V/S DR. B V RAJ U (2012) 135 ITD 1 (SB) , WHEREIN IT HAS BEEN HELD THAT NON - COMPETE FEE WOULD BE CHARGEABLE TO TAX AS INCOME FROM BUSINESS IN THE HANDS OF THE PERSONS ASSOCIATED WITH THE TRANSFER O R ALSO. HE FURTHER SUBMITTED THA T THE DECISION RENDERED BY THE SPECIAL BENCH WAS FOLLOWED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF STERLING RE - ROLLING MILLS V/S ACIT (2012) 23 TAXMANN.COM 394(MUM). ACCORDINGLY HE SUBMITTED THAT THE DECISION RENDERED BY THE LARGER BENCH S HOULD BE FOLLOWED. 5. WE FIND MERIT IN THE SUBMISSIONS MADE BY LD D.R. IN VIEW OF THE ABOVE SAID DECISION OF SPECIAL BENCH, WE SET AS ID E THE ORDER OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE ORDER OF AO. 6 . IN THE RESULT, THE APPEAL OF THE REVENUE I S ALLOWED PRONOUNCED ACCORDINGLY ON 1 8 TH NOVEMBER , 2 015. 1 8 TH NOV , 2 015 S D SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 18 TH NOV , 2 015. . . ./ SRL , SR. PS ITA NO. 5356 / MUM/20 1 3 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, T RUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI