DCIT 2(1), MUMBAI V. EXIM KNITS P LTD, MUMBAI

ITA 5399/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84371 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Keywords: Depreciation
• Section: 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI .. , ! , ' BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.5399 /MUM/2013 (AYS : 2007-08) DCIT-2(1) ROOM NO.561, 5 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. / VS. M/S. EXIM KNITS PVT. LTD. 27/33, FIRST FLOOR, BEAUMON CHAMBER, NAGINDAS MASTER RD. MUMBAI-400 001. ( $% / // / APPELLANT) ( &'$% / RESPONDENT) PA NO.AAACE 5241 Q $% ( ) /APPELLANT BY : SHRI NEIL PHILIP-DR &'$% ( ) /ASSESSEE BY : NONE ( * + / / / / DATE OF HEARING : 09.12.2014 ,-. ( *+ / DATE OF PRONOUNCEMENT : 09.12.2014 !/ / O R D E R PER JOGINDER SINGH (JM) : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 30/05/2013 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2007-08. THE REVENUE IS AGGRIEVED ON THE GROUN D THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDI NG THAT THE 2 M/S EXIM KNIT PVT. LTD. EMPLOYEE-EMPLOYER RELATIONSHIP DID NOT EXIST ON THE AMOUNT CHARGED TO FBT. 2. AT THE TIME OF HEARING, THE LD. DR SHRI NEIL PHI LIP DEFENDED THE CONCLUSION DRAWN IN THE ASSESSMENT ORDER. NONE APPEARED FOR THE ASSESSEE IN SPITE OF SERVICE OF REGISTERED AD N OTICE, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTY QUA THE A SSESSEE AND PROCEED TO DISPOSE OF THE APPEAL ON THE BASIS OF MA TERIAL AVAILABLE ON RECORD. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE DEBITED RS.22,40,099/- AND RS.6,25,035/- O N ACCOUNT OF REPAIRS AND MAINTENANCE AND DEPRECIATION OF VEHICLE S, WHEREAS ONLY 20% OF RS.5,74,405/- WAS OFFERED FOR FRINGE BE NEFIT U/S 115WE(2)(H) OF THE ACT AND NO AMOUNT WAS OFFERED FO R TAXATION OUT OF THE BALANCE AMOUNT CHARGED TO REPAIRS AND MAINTE NANCE AND DEPRECIATION ON VEHICLE. THE ASSESSING OFFICER ISS UED NOTICE U/S 154 OF THE ACT AND ADDED THE BALANCE AMOUNT OF RS. 4,18,145/- IN THE FRINGE BENEFIT ON ACCOUNT OF REMAINING AMOUNT C HARGED TO REPAIR AND MAINTENANCE AND DEPRECIATION OF VEHICLE. WHEREAS THE CLAIM OF THE ASSESSEE IS THAT IT HAS NOT BEEN SPENT FOR THE BENEFIT OF THE EMPLOYEE AND THUS DOES NOT ATTRACT FBT. 2.2. ON APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE FACTS AND RECORD AND FOLLOWING THE D ECISION OF THE TRIBUNAL IN DESAI BROTHERS LTD. (PUNE BENCH) AND CB DT CIRCULAR NO. 8/2005 ALONG WITH THE DECISION FROM HONBLE APE X COURT IN KERALA FINANCIAL CORPORATION VS CIT (210 ITR 129) W HEREIN IT WAS HELD THAT CIRCULARS ISSUED BY CBDT CANNOT OVERRIDE THE PROVISIONS OF THE ACT, DECIDED IN FAVOUR OF THE ASSESSEE, BEIN G DEBATABLE. THE 3 M/S EXIM KNIT PVT. LTD. REVENUE HAS NOT BROUGHT TO OUR NOTICE ANY CONTRARY FACTS/DECISION, THEREFORE, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE AND UPHOLD THE ORDER OF THE LD. COMMISSIONE R OF INCOME TAX (APPEALS). FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 09/12/20 14. !/ ( ,-. 0!1 09.12.2014 - ( 7 SD/- SD/- (B.R. BASKARAN) (JOGINDER SINGH) ! / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER MUMBAI; 0! DATED : 09 TH DEC. 2014. JV.SR. P.S. !/ ( &*8 98.*/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. : ( ) / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 87 &* , , / DR, ITAT, MUMBAI 6. 7=> ? / GUARD FILE. !/ / BY ORDER, '8* &* //TRUE COPY// @/ A B (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI