PRBHAKAR MHATRE, THANE V. ITO WD 3(1), THANE

ITA 5856/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3881 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 30-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

BEFORE INCOME TAX APPELLATE TRIBUNAL, BENCH D MUM BAI BEFORE SHRI B R BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5856/M/2015 FOR AY-2010-11 SHRI PRABHAKAR B. MAHATRE GROUND FLOOR, MHATRE ALI OPPOSITE SAINATH DAIRY, BALKUM, THANE (W) -400608 PAN- AMBPM4357K VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5845/M/2015 FOR AY-2010-11 SH. PRAMOD D.VICHARE VICHARE NIWAS, ROOM NO. 55 REVALE , TALAV, YASHEHWI NAGAR ROAD, KAPURWADI THANE (W) -400607 PAN- AARV4959Q VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5847/M/2015 FOR AY-2010-11 SH. VIKAS PRABHAKAR SONALKAR THREE, NIWAS APARTMENTS CHS, KOLBAD ROAD , KOLBA D THANE (W) -400601 PAN- ADXPSO0380 H VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5848/M/2015 FOR AY-2010-11 SH. RAM J KABADI 2 ND FLOOR, KABADI HOUSE, JANARDHAN VAITY MARG , UTALSHAR THANE (W) PAN- ACDPK6068R VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5820/M/2015- FOR AY-2010-11 SHRI RAJBHADUR BHAGAT SINGH 205, SHIVNAYAN CHS, BALKUM NO. 2. THANE (WEST) -400608 PAN- ADXPS0042C VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO 5845,47,48,5856 TO 5859/M/ 2015 ---AY 2010-11 AND ITA NO.5820 TO5824/M/2015& ITA NO. 17 TO 17 &27/M/2016 ITA NO.5821/M/2015, FOR AY-2010-11 SHRI PANDRANG BHAGWAN SAWANT 201/51, NISHIGANDA VOLTA SEMP CHS VASNT VIHAR THANE (W) -400609 PAN- AEEPS5504H VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5822/M/2015 FOR AY-2010-11 SHRI VISHNU GOPAL PATIL 204, HIRA APARTMENT, BADLANI ROAD, BALKUM NO. 1 THANE (W) -400601 PAN- ACDPP0768P 357K VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5823 /M /2015 - FOR AY-2010-11 SHRI ROMESH RAMCHANDRA BHOIR BALKUM PADA NO. 3, VILLA, BALKUM VILLAGE THANE -400608 PAN- AARPB0348R VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO. 5824/M/2015- FOR AY-2010-11 SHRI RAJENDRA RAGHUNATH PATIL 301, B WING, NIRA SAI BUILDING, BALKUM PADA NO.2 THANE -400608 PAN- ABQPP1326F VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5857/M/2015 FOR AY-2010-11 SHRI POPAT SOPAN SALUNKE 304, VARSHA PARK, D WING WAYALE NAGAR, BHIWANDI MURAD ROAD, KALYAN WEST PAN- ADXPS 0863P VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO 5845,47,48,5856 TO 5859/M/ 2015 ---AY 2010-11 AND ITA NO.5820 TO5824/M/2015& ITA NO. 17 TO 17 &27/M/2016 ITA NO.5858/M/2015 FOR AY-2010-11 SH. RAMESH C PATIL NEAR KABADI SADAN , SHIV KRUPA BUILDING, PADA NO.3 BALKUM, THANE (W) -400608 PAN- ABQPP1112P VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.5859/M/2015, FOR AY-2010-11 SHRI SANTOSH NARAYAN RANE ROOM NO. 105, GANESH DARSHAN BUILDING SECTOR 18, PLOT NO 3 KAMOTHE , NAVI MUMBAI- 410209. PAN- ABPPR0751F VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.17/M/2016 FOR AY-2010-11 SHRI SRIHARI GOVIND PALWANKAR 1 ST FLOOR, PARISHRAM BUILDING MANISHA NAGAR GATE 2, KALWA MUMBAI PUNE ROAD THANE -400605 PAN- ABQPP1371C VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.18/M/2016 FOR AY-2010-11 SHRI SURYA KANT BHAGWAN PATIL, GROUND FLOOR, JOSHI ALI, PADA NO.1 BALKUM, THANE (W) PAN- ABUPP9969L VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO.19/M/2016- FOR AY-2010-11 SHRI SADASHIV DATTRAY MULEY 102, RAGHUNATH CHS SOCIETY, OLD BELAPUR ROAD, NEAR AAI NAGAR, KALWA(W) THANE -400608 PAN- AAVPM8534G VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR IT PARK, ROAD NO 16 Z, WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ITA NO 5845,47,48,5856 TO 5859/M/ 2015 ---AY 2010-11 AND ITA NO.5820 TO5824/M/2015& ITA NO. 17 TO 17 &27/M/2016 ITA NO.27/M/2016 FOR AY-2010-11 SHRI SHANTARAM B. MORE MHADA , PLOT NO. 23, SHANTIVAN CHS LTD SAVARKAR NAGAR, THANE (W) -400606 PAN- AMNPM5228L VERSUS INCOME TAX OFFICER 3(1) B-WING ,6 TH FLOOR, ASHAR I T PARK, ROAD NO 16 WAGLE INDUSTRIAL ESTATE, THANE- 400605 APPELLANT RESPONDENT ASSESSEE REPENTED BY : SH. PARESH SHAH AR REVENUE REPRESEN TED BY : SH. B.S. BIST SR DR D ATE OF HEARING: 28/07/2016 DATE OF PRONOUN CEMENT: 05/08/2016 ORDER PER BENCH 1. ALL THESE APPEALS ARE FILED BY ASSESSEE(S) AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX APPEALS-2, THANE DATED 30 TH OCTOBER 2015 FOR ASSESSMENT YEAR 2010- 11. IN ALL APPEALS COMMON GROUNDS OF APPEAL ARE RAI SED BY ALL THE ASSESSEE AND THE ORDER OF FIRST APPELLATE AUTHORITY ARE ALSO COMMON THUS ALL APPEALS WERE HEARD TOGETHER AND BEING DECIDED BY COMMON ORDER. 2. IN ALL APPEALS THE ASSESSEE / APPELLANTS RAISED THE GROUNDS OF APPEALS THAT THEY WERE NOT ALLOWED TO AVAIL THE BENEFIT OF SECTION 89(1) O F THE ACT IN ALTERNATIVE TO THE RELIEF OF SECTION 10(10C) OF THE ACT BEFORE THE ASS ESSING OFFICER. 3. LD. AR OF THE ASSESSEE/ APPELLANTS ARGUED THAT TH E ADDITIONAL GROUND OF APPEAL MAY BE ADMITTED AND MATTER MAY BE RESTORED TO THE L OWER AUTHORITIES FOR CONSIDERATION OF THE RELIEF AS PROVIDED UNDER SECTI ON 89(1) OF THE ACT. LD DR FOR THE REVENUE HAS NO OBJECTION IF THE ADDITIONAL GRO UND OF APPEAL IS ADMITTED. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES. WE ADMIT THE ADDITIONAL GROUNDS OF APPEAL OF THE ALL THE APPELLANTS URGED B EFORE US REGARDING THE ALTERNATIVE CLAIM UNDER SECTION 89 OF THE ACT. WE N OTICE THAT THE PROVISO SECTION 89 OF THE ACT PROHIBITS RELIEF UNDER SECTION 89 OF THE ACT, IF ASSESSEE HAD CLAIMED THE EXEMPTION UNDER SECTION 10(10C). THE COROLLARY IS T HAT THE ASSESSEE CAN CLAIM RELIEF UNDER SECTION 89 OF THE ACT, IF EXEMPTION UN DER SECTION 10(10 C) IS NOT ITA NO 5845,47,48,5856 TO 5859/M/ 2015 ---AY 2010-11 AND ITA NO.5820 TO5824/M/2015& ITA NO. 17 TO 17 &27/M/2016 CLAIMED. IN THE INSTANT CASE, NO DOUBT, THESE ASSES SEES HAVE CLAIMED EXEMPTION UNDER SECTION 10(10 C) AND HENCE THEY ARE BARRED FR OM CLAIMING RELIEF UNDER SECTION 89 OF THE ACT. HOWEVER, IF THE RELIEF ALLOW ABLE UNDER SECTION 89 IS MORE BENEFICIAL TO THE ASSESSEE THAN THE BENEFIT AVAILAB LE BY CLAIMING EXEMPTION UNDER SECTION 10(10 C), IN OUR VIEW, THE ACT DOES NOT CAM E IN THE WAY OF THE ASSESSEE IN MAKING ALTERNATIVE CLAIM. WE NOTICE THAT CBDT HAS I NSTRUCTED ITS OFFICIAL, VIDE CIRCULAR NO.14(XL-39) DATED 11.04.1955 TO APPRAISE THE ASSESSEE ABOUT THE BENEFITS AVAILABLE TO THE ASSESSEES. ACCORDINGLY WE FIND MERIT IN THE ALTERNATIVE CONTENTION OF THE ASSESSEE. 5. ACCORDINGLY WE RESTORE ALL THE APPEALS /MATTER TO T HE FILE OF ASSESSING OFFICER TO CONSIDER THE CASE OF ALL THE APPELLANTS EITHER UNDE R SECTION 10(10C) OR SECTION 89 WHICHEVER IS MORE BENEFICIAL TO THE APPELLANTS. 6. WITH THESE OBSERVATIONS THE PRESENT APPEALS ARE ALL OWED FOR STATISTICAL PURPOSE. ORDER ANNOUNCED IN OPEN COURT ON 5 TH DAY OF AUGUST 2016. SD/- SD/- (B.R.BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/08/2016 C OPY 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. E COPY/