M/S. PARSEE GYMKHANA, MUMBAI V. ACIT-CIRCLE 18(2), MUMBAI

ITA 5431/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1922 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 20-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Maximum Marginal Rate

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , C BENCH MUMBAI BEFORE : SHRI MAHAVIR SINGH, VICE PRESIDENT & SHRI M.BALAGANESH, A CCOUNTANT M EMBER ITA NO. 5431 /MUM/ 20 19 ( ASSESSMENT YEAR : 2014 - 1 5 ) M/S. PARSEE GYMKHANA C/O. KALYANIWALLA AND MIS TRY LLP, 2 ND FLOOR, ESPLANADE HOUSE 29, HAZARIMAL SOMANI MARG FORT, MUMBAI 400 001 VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 18(2) MUMBAI ROOM NO.302, 3 RD FLOOR EARNEST HOUSE NARIMAN POINT MUMBAI 400 021 PAN/GIR NO. AAAAP0177E (APPELLANT ) .. (RESPO NDENT ) ASSESSEE BY SHRI M.M. GOLVALA REVENUE BY MS. SHREEKALA PARDESHI DATE OF HEARING 29 / 06 /202 1 DATE OF PRONOUNCEMENT 01 / 07 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 5431/MUM/2019 FOR A.Y. 2014 - 15 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 53, MUMBAI IN APPEAL NO. CIT(A) - 53/IT - 376/ACIT - 18(2)/2018 - 19 DATED 18/06/2019 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS ACT) ITA NO . 5431/MUM/2019 M/S. PARSEE GYMKHANA 2 DATED 05/12/2016 BY THE LD. ASST. COMMISSIONER OF INCOME TAX 18(2), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). 2. THE ONLY EFFECTIVE ISSUE TO BE DECIDED IN THE INSTANT APPEAL IS THAT WHETHER THE INCOME OF THE ASSESSEE CLUB W OULD BE TAXABLE AT MAXIMUM MARGINAL RATE U/S.167B OF THE ACT OR AT SLAB RATES APPLICABLE TO ASSOCIATION OF PERSONS (AOP). 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE FORM ED MEMBERS CLUB ON 25 /02/1885. THE ASSESSEE IS MANAGING A GYMKHANA NAMELY PARSEE GYMKHANA LOCATED AT NEW MARINE LINES, MUMBAI. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y.2014 - 15 ON 24/07/2014 ELECTRONICALLY DECLARING TOTAL INCOME OF RS.1,36,86,560/ - I N THE STATUS OF AOP WHEREIN THE TAX RATE WAS AUTOMATICALLY PICKED UP TO BE CHARGEABLE AT MAXIMUM MARGINAL RATE BY THE INCOME TAX RETURN FILING SOFTWARE. THE LD. AR PLEADED THAT TILL A.Y.2010 - 11, WHERE THE RETURNS WERE FILED MANUALLY BEFORE THE INCOME TAX DEPARTMENT, THE ASSESSEE CLUB HAD BEEN OFFERING INCOME TO TAX AT SLAB RATES APPLICABLE TO AOP AND WHICH WAS ACCEPTED BY THE DEPARTMENT. HOWEVER, COMMENCING FROM A.Y.2011 - 12 ONWARDS, WHEN ELECTRONIC FILING WAS MADE MANDATORY , ONCE THE STATUS OF THE ASSESSEE IS ACCEPTED AS AOP, THE LD. AR PLEADED THAT THE RETURN FILING SOFTWARE AUTOMATICALLY TAXE S THE INCOME TO BE CHARGEABLE AT MAXIMUM CHARGEABLE RATE. THE LD. AR ALSO STATED THAT IN THE A.Y.2014 - 15, ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT WHEREIN ASSESSEE WAS CHARGED TAX ONLY AT SLA B RATES AND PROVISIONS OF SECTION 167B OF THE ACT WERE NOT MADE APPLICABLE. ACCORDINGLY, THE LD. AR PLEADED THAT THIS APPEAL MAY BE RESTORED BACK TO THE FILE OF THE LD. AO TO DECIDE IN LIGHT OF ASSESSMENT FRAMED FOR THE A.Y.2014 - 15 IN THE HA NDS OF THE ASSESSEE. THE LD. DR FAIRLY ITA NO . 5431/MUM/2019 M/S. PARSEE GYMKHANA 3 AGREED TO THE SAID PROPOSITION OF THE LD. AO. CONSIDERING THE FACTS OF THE CASE AND ARGUMENTS ADVANCED HEREINABOVE BY THE PARTIES, WE DEEM IT FIT TO RESTORE THIS ISSUE TO THE FILE OF THE LD. AO FOR DENOVO ADJUDICATIO N IN ACCORDANCE WITH LAW. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 01 / 07 /202 1 BY WAY OF PROPER MENTIONING IN THE NOTICE BOARD. SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 01 / 07 / 2021 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//