ADDL.C.I.T. RG.3(3), MUMBAI V. STUP CONSULTANTS PVT. LTD., MUMBAI

ITA 5973/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2416 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 05-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBRAMANIAN
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 5973/MUM/2012 ASSESSMENT YEAR: 2009-10 THE A CIT , CIRCLE - 3 (3), ROOM NO. 609, 6 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI- 400 020. VS. M/S. STUP CONSULTANTS PVT. LTD., 1004-5, RAHEJA CHAMBERS, 213, FREE PRESS JOURNAJ MARG, NARIMAN POINT, MUMBAI- 400 021. PAN- AABCS1945E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. NITIN WAGHMODE RESPONDENT BY : SHRI. S.H. SUBRAMANIAN DATE OF HEARING: 17/10 /2016 DATE OF PRONOUNCEMENT: 17/10/201 6 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 07/05/2012 PASSED BY THE LD CIT(APPEALS)-7, MUMBAI FOR THE ASS ESSMENT YEAR 2009-10, WHEREBY THE LD. CIT(A) PARTLY ALLOWED THE APPEAL FI LED BY THE ASSESSEE AGAINST ASSESSMENT ORDER DATED 30/11/2011 PASSED BY THE ADD L. COMMISSIONER OF INCOME-TAX, RANGE-3(3), MUMBAI. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING EFFECTIVE GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE DISALL OWANCE OF CLAIM OF 2 ITA NO. 5973/MUM/2012 ASSESSMENT YEAR: 2009-10 WRITE-OFF OF EXCESS AMOUNT DEPOSITED WITH INCOME-TA X DEPARTMENT WHILE DEPOSITING DEDUCTION ON PAYMENTS TOWARDS TDS ACCOUNT. (RS. 10,74,176/-) WITHOUT APPRECIATING THE FACT THAT EXP ENSES CLAIMED WERE GROSS OF TDS AND HENCE THE LOSS CLAIMED BY THE ASSESSES WOULD AMOUNT TO DOUBLE DEDUCTION TO THE ASSESSEE A ND ALSO THAT THE REFUND DUE ON TDS RETURN IS TO BE CLAIMED IN THE TD S RETURN FILED IN THE TDS SECTION. 2. 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITI ON OF RS. 6,47,816/- BEING COST OF FURNITURE REDUCED FROM THE PROJECT F EE ACCOUNT WITHOUT APPRECIATING THE FACT THAT THE PROJECT FEE ALREADY INCLUDES PAYMENT TOWARDS OFFICE FURNITURE AS INDICATED BY THE RELEVA NT CONTRACT SHEET. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT RECEIP T OF RS. 66,82,143/- FROM LETTING OUT THE PROPERTY BE TAXED UNDER THE HE AD INCOME FROM BUSINESS AND PROFESSION INSTEAD OF INCOME FROM HOU SE PROPERTY, AS HELD BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THE FACT THAT THE INTENTION OF THE ASSESSEE WAS TO LET OUT THE PROPER TY ON RENT AS SUCH THE INCOME THERE FROM SHOULD BE ASSESSED AS INCOME FROM HOUSE PROPERTY AS HELD BY THE HONBLE SUPREME COURT IN T HE CASE OF SHAMBHU INVESTMENT PVT. LTD. (129 TAXMAN 70). 3. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIV E FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10,00, 000/- AND AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRES ENT APPEAL IS NOT MAINTAINABLE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMIT TED THAT THE TAX EFFECT IN THE PRESENT CASE IS RS.7,13,370/- AS WORKED OUT BY THE RESPONDENT/ASSESSEE. 3 ITA NO. 5973/MUM/2012 ASSESSMENT YEAR: 2009-10 5. WE FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCULAR. SIN CE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID THAT THE INSTRU CTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRESENT APPEAL FILE D BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 17/10/2016 / 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 PRAMILA