AMEESHA A. PATEL, MUMBAI V. THE ACIT, CIRCLE 11(1), MUMBAI

ITA 5664/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8015 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-11-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 21-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Depreciation; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.5664/MUM/2009 (ASSESSMENT YEAR: 2002-03) MS. AMEESHA A. PATEL, 502, BHANU, JUKAR MARG, JUHU, MUMBAI -400 054 ASSESSEE VS THE ASSTT. COMMISSIONER OF INCOME-TAX -11(1), MUMBAI .. REVENUE PAN: AABPP 5243 M ASSESSEE BY: SHRI HARI S. RAHEJA REVENUE BY: SHRI JITENDRA YADAV O R D E R PER R.S. PADVEKAR, JM THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT (A) XI, MUMBAI DATED 18.08.2008 FOR THE A.Y. 2002-03. GROUND NO.1 IS GENERAL IN NATURE. GROUND NO.2,3 & 4 ARE IN RESPECT OF THE ADDITION OF ` 12,00,000/- ON ACCOUNT OF MOTOR CAR RENT. 2. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2001-02. THE LD. COUNSEL FILED T HE COPY OF THE TRIBUNAL ORDER WHICH HIS PLACED ON RECORD. THE ASSESSEE IS A FILM ACTRESS AND ITA 5664/M/2009 MS. AMEESHA A. PATEL 2 MODEL AND ALSO ENGAGED IN THE BUSINESS OF SHARE TRA DING AND IT WAS NOTICED BY THE A.O. THAT THE ASSESSEE HAS PAID MOTO RCAR RENT OF ` 12 LAKHS TO SHRI AMIT K. PATEL WHO IS THE BROTHER OF T HE ASSESSEE. THE A.O. FOLLOWING THE ORDER IN THE PRECEDING YEAR DISALLOWE D THE CAR RENT AND ALLOWED THE DEPRECIATION. THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE A.Y. 20 01-02 VIDE ORDER DATED 18TH AUGUST 2009 HELD AS UNDER:- 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PART IES. THE CONTROVERSY WAS IN RESPECT OF THE LEASE RENT PAID B Y THE ASSESSEE FOR HIRING THE CAR BEING MERCEDES BEN E-24 0. IT WAS NOT THE CASE OF THE A.O THAT FOR THE AGREEMENT ENTE RED INTO BY THE ASSESSEE WITH HER BROTHER NAMELY SHRI ASMIT PAT EL FOR TAKING THE CAR ON LEASE WAS IN THE NATURE LIKE EMI AGREEMENT. THE LD. CIT (A0 HAS STRANGELY DECIDED THE ISSUE WHI CH WAS NOT BEFORE HIM. MOREOVER HE HAS NOT DISCUSSED ANY THING IN RESPECT OF THE TERMS OF AGREEMENTS HOW HIS FINDINGS ARE SUPPORTED. MOREOVER, HE HAS ALSO NOT AT ALL CONSID ERED ON WHOM NAME SAID CARE IS REGISTERED UNDER MOTOR VEHIC LE ACT AS RIGHTLY SUBMITTED BY THE LD. COUNSEL. IN FACT, IN OUR OPINION, HE COULD HAVE CONFINED HIMSELF TO THE ISSUE OF THE ALLOWABILITY OF THE LEASE CAR RENTAL CHARGES CLAIMED BY THE ASSE SSEE AND WHETHER IN VIEW OF SECTION 40A(2)9B) WHERE THERE IS JUSTIFICATION ON THE PART OF THE A.O. TO DISALLOW T HE CLAIM OF THE ASSESSEE. 5. WE HAVE PERUSED THE COPY OF THE AGREEMENT FILED BY THE ASSESSEE AND WE FIND THAT IT IS PURELY A LEASE AGRE EMENT AND NOT A CAR PURCHASE AGREEMENT. WE FURTHER FIND THAT NOTHING HAS BEEN DEMONSTRATED BY THE A.O. FOR MAKING THE ITA 5664/M/2009 MS. AMEESHA A. PATEL 3 DISALLOWANCE U/S.40A(2)(B) OF THE ACT. MOREOVER, W E DO NOT AGREE WITH THE FINDINGS OF LD. CIT (A) ALSO THAT IT IS CAR PURCHASE AGREEMENT. WE, THEREFORE, HOLD THAT THE AGREEMENT ENTERED INTO BY THE ASSESSEE IS A LEASE AGREEMENT T OWARDS HIRING THE CAR ONLY AND IT IS NOT AN AGREEMENT FOR PURCHASE OF THE CAR. WE FURTHER HOLD THAT THERE IS NO JUSTIFIC ATION FOR MAKING THE DISALLOWANCE OF ` 6,00,000/- U/S.40A(2)(B) TO THE ASSESSEE ON THE PART OF THE A.O. AS IT IS DONE ONLY ON THE PRESUMPTIONS AND SURMISES WITHOUT GIVING ANY SUPPOR TING INSTANCES. WE, THEREFORE, SET ASIDE THE ORDER OF T HE CIT (A) ON THIS ISSUE AND DIRECT THE A.O. TO ALLOW THE ENTIRE LEASE RENT OF THE CAR TO THE ASSESSEE AS PER THE TERMS OF THE AGR EEMENT. WE MAKE IT CLEAR THAT AS WE HAVE SET ASIDE THE FINDING S OF THE CIT (A), THE ASSESSEE IS NOT ENTITLED FOR DEPRECIATION AND INTEREST. 3. WE, ACCORDINGLY, FOLLOWING THE ORDER OF THE TRIB UNAL IN THE ASSESSEES OWN CASE ALLOW GROUND NO.2, 3 & 4 OF THE ASSESSEE. 4. GROUND NO. 5, 6 & 7 READ AS UNDER:- 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JU STIFIED IN CONFIRMING THE ADDITION OF ` 11,090/- BEING 20% EXPENDITURE ON ACCOUNT OF PETROL EXPENSES ON THE GROUND OR GROU NDS AS CONTAINED IN THE ASSESSMENT ORDER OR OTHERWISE. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JU STIFIED IN CONFIRMING THE ADDITION OF ` 28,590/- BEING 20% EXPENDITURE ON ACCOUNT OF COSTUME EXPENSES ON THE GROUND OR GRO UNDS AS CONTAINED IN THE ASSESSMENT ORDER OR OTHERWISE. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JU STIFIED IN ITA 5664/M/2009 MS. AMEESHA A. PATEL 4 CONFIRMING THE ADDITION OF ` 17,520/- BEING 20% EXPENDITURE IN ACCOUNT OF OTHER TRAVELLING EXPENSES ON THE GROU ND OR GROUNDS AS CONTAINED IN THE ASSESSMENT ORDER. 5. THE SAID GROUNDS ARE IN RESPECT OF ADHOC DISALLO WANCE OF EXPENDITURE ON ACCOUNT OF PETROL EXPENSES, COSTUME EXPENSES AND TRAVELLING EXPENSES. THE LD. COUNSEL SUBMITS THAT THE IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN ASSESSEES O WN CASE FOR THE A.Y. 2004-05. WHEN THE MATTER REACHED BEFORE THE TRIBUN AL VIDE ITA 5883/MUM/2009 ORDER DATED 28.1.2011 THE ADHOC DISAL LOWANCE MADE BY THE A.O. AT 20% WAS DELETED. THE LD. COUNSEL FI LED THE COPY OF THE ORDER OF THE TRIBUNAL FOR THE A.Y. 2004-05. WE HAV E ALSO HEARD THE LD. D.R. IT IS SEEN THAT THE IDENTICAL DISALLOWANCE WA S MADE IN THE A.Y. 2004-05 AND THE TRIBUNAL HAS DELETED THE SAME. WE, THEREFORE, FOLLOWING THE REASONS FOR THE A.Y. 2004-05 DELETE THE ADDITIO N MADE BY THE A.O. AND ALLOW GROUND NO.5, 6 & 7. 6. GROUND NO.8 IS GENERAL IN NATURE. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 3RD MARCH 2011. SD/- SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 23RD MARCH 2011 ITA 5664/M/2009 MS. AMEESHA A. PATEL 5 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) XI, MUMBAI. 4) THE CIT XI, MUMBAI. 5) THE D.R. D BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN ITA 5664/M/2009 MS. AMEESHA A. PATEL 6 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 10.03.2011 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 11.03.2011 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER