RUMANEK ESTATES P.LTD, MUMBAI V. ACIT 11(1), MUMBAI

ITA 5373/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2695 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 21-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 27-08-2012
• Court: TRIBUNAL
• Department Lawyers: B S BIST

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & PAWAN SINGH (JM) I.T.A. NO. 5373 /MUM/ 20 1 2 (ASSESSMENT YEAR 200 8 - 0 9 ) RUMANEK ESTATES PVT. LTD. NEW EXMPIRE CINEMA BUILDING MURZBAN ROAD, FORT MUMBAI - 400 001. VS. AC IT 1(1) ROOM NO. 467 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AABCR0998N ASSESSEE BY NONE DEPARTMENT BY SHRI B.S. BIST DATE OF HEARING 2 6 . 7 . 201 6 DATE OF PRONOUNCEMENT 26 .7 . 201 6 O R D E R PER B.R. BASKA RAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 18 - 06 - 2012 PASSED BY LD CIT(A) - 3, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF OUTSTANDING AMOUNT PERTAINING TO INR CHARGES AS INCOME OF THE ASSESSEE U/S 41(1) OF THE ACT. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, EVEN THOUGH THE ASSESSEE WAS GIVEN LAST OPPORTUNITY ON 21 - 06 - 2016. HENCE WE PROCEED TO DISPOSE OF THE APPEAL E X - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3. WE HEARD LD D.R AND PERUSED THE RECORD. THE AO NOTICED THAT THE ASSESSEE HAS SHOWN A SUM OF RS.5,16,374/ - PERTAINING TO INR HIRE CHARGES AS OUTSTANDING LIABILITY UNDER THE HEAD SUNDRY CREDITORS. TH E SAME PERTAINED TO THE RUMANEK ESTATE P. LTD. 2 FINANCIAL YEARS 1996 - 97 TO 1999 - 2000. SINCE THE AMOUNT WAS OUTSTANDING FOR THE PAST SEVERAL YEARS, THE AO TOOK THE VIEW THAT THE SAID LIABILITY IS NO LONGER PAYABLE AND ACCORDINGLY ASSESSED THE SAME U/S 41(1) OF THE ACT. THE LD CI T(A) ALSO CONFIRMED THE SAME AND HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 4. FROM THE PERUSAL OF THE ASSESSMENT ORDER, WE NOTICE THAT THE ASSESSEE HAS CONTENDED THAT THE ABOVE SAID AMOUNT WAS PAYABLE TO FILMS DIVISION OF INFORMATION & BROAD CASTING MINISTRY OF GOVERNMENT OF INDIA. THE ASSESSEE HAS STATED THAT THE SAID REMAINED UNPAID, SINCE THE DISPUTE BETWEEN THE ASSESSEE AND THE GOVERNMENT HAS NOT BEEN RESOLVED TILL DATE. ACCORDINGLY IT WAS SUBMITTED THAT THE LIABILITY HAS NOT CEASED TO E XIST AND HENCE THE PROVISIONS OF SEC. 41(1) ARE NOT APPLICABLE. IN THIS REGARD, THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION RENDERED IN THE CASE OF ACIT VS. GLENMARK PHARMACEUTICALS (2010)(8 TAXMANN.COM 55) (MUM). THE SAID SUBMISSIONS DID NOT FIND FA VOUR WITH THE TAX AUTHORITIES. THE LD CIT(A), HOWEVER, PLACED RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF CIT VS. T.V.SUNDARAM IYENGAR & SONS (88 TAXMANN 429) AND CONFIRMED THE ADDITION MADE BY THE AO. 5. IN THE CASE OF T. V. SUNDARAM IYENGAR & SONS (SUPRA), THE HONBLE SUPREME COURT WAS CONCERNED WITH UNCLAIMED TRADE DEPOSITS, WHERE AS IN THE INSTANT CASE, THE ISSUE IS RELATED TO THE MONEY DUE TO THE FILMS DIVISION OF I & B MINISTRY OF GOVERNMENT OF INDIA. HENCE, IN OUR VI EW, THE ABOVE SAID DECISION OF HONBLE SUPREME COURT WILL NOT APPLY TO THE FACTS OF THE INSTANT CASE. THE ASSESSEE HAS CLAIMED THAT THE DISPUTE IS STILL UNRESOLVED AND HENCE THE LIABILITY STILL PERSISTS. WE NOTICE THAT THE AO HAS NOT BROUGHT ANY MATERIAL ON RECORD TO CONTRADICT THE SAID SUBMISSIONS. IN THAT CASE, IN OUR VIEW, THE OUTSTANDING LIABILITY CANNOT BE SAID TO HAVE CEASED. ACCORDINGLY, WE ARE OF THE VIEW THAT THE TAX AUTHORITIES ARE NOT JUSTIFIED IN ASSESSING THE SAME U/S 41(1) OF THE ACT. ACC ORDINGLY, WE SET RUMANEK ESTATE P. LTD. 3 ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE IMPUGNED ADDITION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 26 .7.2016 SD/ - SD/ - (PAWA N SINGH) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 26 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPO NDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS