ITO 7(2)-1, MUMBAI V. RAKSHIT INVESTMENT P. LTD, MUMBAI

ITA 6258/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71977 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-12-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.6258/M/2012 (AY: 2006 - 2007) ITO - 7(2) - 1, R.NO.618A, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. M/S. RAKSHIT INVESTMENT P. LTD., 14 MARHANDA, 84, A.B. ROAD, WORLI, MUMBAI 400 018. ./ PAN : AAACR 2951 C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SANJEEV JAIN, DR / RESPONDENT BY : SHRI RAJESH SHAH / DATE OF HEARING : 18.12.2013 / DATE OF PRONOUNCEMENT : 18.12.2013 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 11.10.2012 IS AGAINST THE ORDER OF THE CIT (A) - 13, MUMBAI DATED 25.7.2012 FOR THE ASSESSMENT YEAR 2006 - 2007. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) ERRED ON FACT IN LAW BY ALLOWING THE EXPENDITURE OF RS. 38,33,174/ - AS ADVERTISEMENT EXPENDITURE THOUGH SUCH EXPENDITURE WAS NOT CLAIMED IN RETURN OF INCOME. 2. THE LD CIT (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING EXPENDITURE OF RS. 38,3 3,174/ - WHICH COULD ONLY BE CLAIMED EITHER IN RETURN U/S 139(1) OR IN REVISED RETURN U/S 139(5) WITHIN AN YEAR OF COMPLETION OF ASSESSMENT WHICHEVER IS EARLIER AND THEREFORE, THE CLAIM BY THE ASSESSEE OF THIS AMOUNT AFTER EXPIRY OF ONE YEAR WAS BARRED BY L IMITATION. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A)S DECISION IS CONTRARY TO LAW BECAUSE THE TIME LIMIT FOR REVISION OF RETURN WAS OVER AND THEREFORE, WHAT IS DENIED TO ASSESSEE BY LEGISLATURE, CANNOT BE ALLOWED BY C IT (A) WHO IS CREATURE OF STATUTE. 4. THE LD CIT (A) HAS ERRED IN LAW ON FACTS BY EXTENDING THE TIME LIMIT FOR MAKING A CLAIM BEYOND THE PERIOD SPECIFIED U/S 139(5) AND THUS HAS CLEARLY TRAVELED BEYOND THE COMPETENCE IN LAW NOT TO DO SO. 2 5. THE LD CIT (A) S ORDER IS PERVERSE IN LAW AND ON FACTS AND DESERVES TO BE SET ASIDE. 3. AT THE OUTSET, SHRI RAJESH SHAH , LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSEE MADE A CLAIM OF E XPENDITURE OF RS. 38,33,174/ - O N A C C O U N T O F ADVERTISEMENT EXPENSES BY WAY OF FILING A LETTER BEFORE THE ASSESSING OFFICER. AO DID NOT ALLOW THE SAID CLAIM OF THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NO TIME TO FILE THE REVISED RETURN OF INCOME. MATTER TRAVELLED TO THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE RELIED ON VARIOUS DECISIONS INCLUDING THAT OF THE J UDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LIMITED VS. CIT (284 ITR 323) . FURTHER, ASSESSEE ALSO DEMONSTRATED THE GENUINENESS OF THE EXPENDITURE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) ALLOWED THE CLAIM OF THE ASSESSEE. AGGRIEVED WITH THE DECISION OF THE CIT (A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 5. DURING THE PROCEEDINGS BEFORE US, BOTH THE LD REPRESENTATIVES OF THE PARTIES AGREED THAT THE JUDGMENT OF THE HON BLE APEX COURT IN THE CASE OF GOETZE (INDIA) LIMITED (SUPRA) PERMITS RAISING OF ANY ISSUE FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITIES AND CERTAINLY NOT BEFORE THE ASSESSING OFFICER, W H E R E T H E ASSESSEE NEEDS TO MAKE A CLAIM ONLY BY FILING A REVISED RETURN OF INCOME. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LIMITED (SUPRA). WE HAVE ALSO GONE THROUGH THE ORDER OF THE CIT (A) IN PARTICULAR. ON PERUSAL OF THE SAID ORDER OF THE CIT (A), WE FIND THAT CONSIDERING THE CIRCUMSTANCES PREVAILED IN THE INSTANT CASE, CIT (A) HAS RIGHTLY ENTERTAINED THE CLAIM OF THE ASSESSEE AND ALLOWED THE APPEAL. CONSIDERING THE SAME, WE ARE OF THE OPINIO N THAT THE DECISION OF THE CIT (A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISMISSED . 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . 3 ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2013. S D / - S D / - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 18 .12 .2013 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI