SURANA MOTORS P.LTD, MUMBAI V. DCIT 1(3)(1), MUMBAI

ITA 5575/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0629 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 09-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Business income; Revised return
• Section: 43B; 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5575 /MUM/ 2015 ASSESSMENT YEAR: 2012 - 13 M/S SURANA MOTORS PVT. LTD. C/O KARNAVAT & CO 2A KITAB MAHAL, 1 ST FLOOR 192 DR. D.N. ROAD MUMBAI - 400001 VS. DCIT - 1(3)(1) AAYAKAR BHAVAN M.K. ROAD , MUMBAI - 400020 PAN NO. AAACS6682F APPELLANT RESPONDENT ASSESSEE BY : MR. SUNIL HIRAWAT , AR REVENUE BY : MR. RAM TIWARI , DR DATE OF HEARING : 14/11/2017 DATE OF PRONOUNCEMENT : 09/02/1018 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 13 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , [IN SHORT CIT(A)] MUMBAI AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2 . THE ISSUE FALLS IN A NARROW COMPASS. THE SAME IS W HETHER THE CLAIM MADE BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BE CONSIDERED IN A CASE WHERE A REVISED RETURN OF INCOME HAS BEEN FILED ? M/S SURANA MOTORS PVT. LTD. ITA NO. 5575/MUM/2015 2 3 . BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE APPELLANT E - FILED ITS RETURN OF INCOME FOR THE AY 2012 - 12 ON 29.09.2012 D ECLARING TOTAL INCOME AT RS.1,09,23,385/ - . THE SAID RETURN WAS SUBSEQUENTLY REVISED BY IT ON 12.10.2012 DECLARING TOTAL INCOME AT RS.1,06,61,843/ - . THE APPELLANT FILED THE ABOVE REVISED RETURN, SINCE IN THE ORIGINAL RETURN, DISALLOWANCE U/S 43B WAS MADE AT RS.2,83,099/ - , WHEREAS IT SHOULD BE RS.21,555/ - . THEN THE APPELLANT FILED A REVISED STATEMENT OF TOTAL INCOME BEFORE THE ASSESSING OFFICER (AO) VIDE LETTER DATED 23.02.2015 DECLARING TOTAL INCOME AT RS.95,66,332/ - AS UNDER: 2. WE ARE ENCLOSING HEREWITH THE RE - REVISED STATEMENT OF TOTAL INCOME DECLARING INCOME AT RS.95,66,332/ - . THE AFORESAID RETURN WAS RE - REVISED SINCE BANK INTEREST AND PROCESSING FEES HAVE REMAINED TO BE CLAIMED IN THE BOOKS OF ACCOUNTS AND ACCORDINGLY, THE SAME HAS NOT BEEN CLAIMED AS ALLOWABLE EXPENSES. AS PER THE STATEMENT ATTACHED HEREWITH, IT MAY KINDLY BE SEEN THAT BANK CHARGES, INTEREST, PROCESSING FEES AND SERVICE TAX DEBITED BY THE INDUS IND BANK ON VARIOUS DATE S DURING THE FINANCIAL YEAR 2011 - 12 AMOUNTING TO RS.10,95,510.56 ON THE VARIOUS DATES HAS REMAINED TO BE ACCOUNTED FOR AND CONSEQUENTLY REMAINED TO BE CLAIMED AS ALLOWABLE EXPENDITURE. WE MAY ALSO LIKE TO PUT ON RECORD THAT EXPENDITURE OF RS.10,95,510/ - ALONGWITH THE EXPENSES FOR FY 2010 - 11 & 2012 - 13 AMOUNTING TO RS.32,72, 785/ - WAS ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS RELATING TO THE FY 2013 - 14 (ASSTT. YEAR 2014 - 15). THE SAID SUM WAS DEBITED IN THE BOOKS OF ACCOUNTS AS PRIOR PERIOD EXPENSES AND IN THE STATEMENT OF TOTAL INCOME RELATING TO THE ASSTT. YEAR 2014 - 15 (COPY ENC LOSED). THE SAID AMOUNT WAS DISALLOWED WHILE COMPUTING THE BUSINESS INCOME. IT IS, THEREFORE, SUBMITTED THAT AS SUM OF RS.10,95,510/ - MAY KINDLY BE ALLOWED WHILE PASSING THE ORDER U/S 143(3) RELATING TO THE ASSTT. YEAR 2012 - 13. WE WILL BE GLAD TO FURNISH A NY OTHER INFORMATION/EXPLANATION, IN THIS REGARD, IF DESIRED. M/S SURANA MOTORS PVT. LTD. ITA NO. 5575/MUM/2015 3 3 .1 HOWEVER, THE AO MADE THE ASSESSMENT U/S 143(3) BY TAKING INTO ACCOUNT IN THE TOTAL INCOME OF RS.1,06,61,843/ - SHOWN BY THE APPELLANT IN THE REVISED RETURN FILED ON 12.10.2012. 4 . AGGRIEVE D BY THE ORDER OF THE AO, THE APPELLANT FILED AN APPEAL BEFO RE THE LD. CIT(A), THE LD. CIT(A) DISMISSED THE APPEAL ON THE GROUND THAT (I) THE AO HAD DULY CONSIDERED THE REVISED RETURN OF INCOME OF THE APPELLANT WHICH WAS FILED ON 12.10.2012 U/S 139(5) DECLARING TOTAL INCOME OF RS.1,06,61,843/ - AND (II) THE LETTER DATED 25.02.2015 FILED IN THE TAPAL ENTRY 545 R ELATING TO ANOTHER STATEMENT , DECLARING TOTAL INCOME AT RS.95,66,132/ - CAN NEITHER BE TREATED AS REVISED RETURN OF INCOME NOR RE - REVISED RETURN OF INCOME AS CLAIMED BY THE APPELLANT . 5 . BEFORE US, THE LD. COUNSEL OF THE APPELLANT SUBMITS THAT IT HAD FILED REVISED STATEMENT OF TOTAL INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) AND NOT RE - REVISED RETURN OF INCOME AS THE TIME LIMIT FOR FILING THE REVISED RETURN OF INCOME U /S 139(5) EXPIRED ON 31.03.2014. RELYING ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN CIT V. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD. (2012) 349 ITR 336 (BOM), IT IS SUBMITTED BY HIM THAT THE APPELLATE AUTHORITIES ARE ENTITLED TO CONSIDER THE CLAIM AND ADJUDICATE THE SAME. 6 . ON THE OTHER HAND, THE LD. DR RELIES ON THE ORDER PASSED BY THE LD. CIT(A). 7 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE ISSUE HERE IS WHETHER THE CLAIM MADE BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BE CONSIDERED IN M/S SURANA MOTORS PVT. LTD. ITA NO. 5575/MUM/2015 4 A CASE WHERE A REVISED RETURN OF INCOME IS FILED. IN TH IS REGARD, WE REFER TO THE DECISION IN PRUTHVI BROKERS & SHAREHOL DERS (P.) LTD . (SUPRA), WHEREIN, THE HONBLE BOMBAY HIGH COURT, CONSIDERING THE DECISION IN GOETZE (INDIA) LTD. V. CIT (2006) 204 CTR (SC) 182 HELD THAT: 23. IT IS CLEAR TO US THAT THE SUPR EME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN PREVIOUS JUDGMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES . THE JURISDICTION OF THE APPELLATE AUTHORITIES TO E NTERTAIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGMENT. IN FACT, THE SUPREME COURT MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL U/S 254. 24. A DIVISION BENCH OF THE DELHI HIGH COURT DEALT WITH A SIMILAR SUBMISSION IN COMMISSIONER OF INCOME - TAX V. JAI PARABOLIC SPRINGS LTD. (2008) 306 ITR 42. THE DIVISION BENCH, IN PARAGRAPH 17 OF THE JUDGMENT HELD THAT THE SUPREME CO URT DISMISSED THE APPEAL MAKING IT CLEAR THAT THE DECISION WAS LIMITED TO POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN AND DID NOT IMPINGE ON THE POWERS OF THE TRIBUNAL. IN PARAGRAPH 19, THE DIVISIO N BENCH HELD THAT THERE WAS NOT PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENTERTAIN AN ADDITIONAL GROUND WHICH, ACCORDING TO THE TRIBUNAL, ARISES IN THE MATTER AND FOR THE JUST DECISION OF THE CASE. 7 .1 RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF THE JURISDICTIONAL HIGH COURT, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO EXAMINE THE REVISED STATEMENT OF INCOME FILED BY THE APPELLANT DECLARING TOTAL INCOME AT RS .95,66,332/ - AND PASS A FRESH ASSESSMENT ORDER , AFTER GIVING REASONABLE OPPORTUNITY OF BEING M/S SURANA MOTORS PVT. LTD. ITA NO. 5575/MUM/2015 5 HEARD TO THE ASSESSEE. WE DIRECT THE APPELLANT TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. 8 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 09/02/2018. SD/ - SD/ - (D.T. GARASIA ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 09/02/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI