MEHTA JAISING DEVELOPERS, MUMBAI V. ADDL CIT RG 15(2), MUMBAI

ITA 6746/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2789 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M RAJAN
• Assessee Lawyers: SAMEER G DALAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 6746 /MUM/20 13 : (A.Y : 2009 - 10 ) M/S. MEHTA JAISING DEVELOPERS 398, KIRTI KUNJ, 14 TH ROAD, KHAR (W), MUMBAI 400 052 PAN : AA BTM0713F ( APPELLANT ) VS. A DDL. CIT , RANGE - 15 (2), MUMBAI (RESPONDENT) ASSESSEE BY : SHRI SAMEER G. DALAL REVENUE BY : SHRI M. RAJAN DATE OF HEARING : 27/09 /2016 DATE OF PRONOUNCEMENT : 30 / 09 /2016 O R D E R PER G.S. PANNU , AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 26 , MUMBAI DATED 04.09.2013 , PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHICH IN TURN HAS ARISEN FROM ORDER DATED 08.12.2011 PASSED BY THE ASSESSING OFFICER, MUMBAI UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN UPHOLDING DISALLOWANCE MADE ON ACCOUNT OF PROFESSIONAL FEES PAID RS.10,20,000 TO THE MEMBERS OF A.O.P U/S. 40(BA) OF INCOME TAX ACT, 1961. 2 M/S. MEHTA JAISING DEVELOPERS ITA NO. 6746/MUM/2013 2. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) HAS WRONGLY CONSIDERED STATUS OF YOUR APPELLANT AS AN A.O.P., IN FACT YOUR APPELLANT IS AN INDIVIDUAL. FO R TAXATION PURPOSE SAME IS TREATED AS AN A.O.P. 3. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE DISPUTE RAISED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF TRIBUNAL IN THE CASE OF ASSESSEE FOR PRECEDIN G THREE ASSESSMENT YEARS OF 2006 - 07, 2007 - 08 AND 2008 - 09 RENDERED BY THE TRIBUNAL VIDE ITA NOS. 286/MUM/2011, 571/MUM/2012 AND 7391/MUM/2012 DATED 19.9.2013, 1.7.2015 AND 14.8.2014 RESPECTIVELY . IT WAS ALSO STATED THAT THE SAID PRECEDENTS CONTINUE TO HOLD THE FIELD AND THEY HAVE NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND IT IS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. THE ASSESSING OFFICER HAS CONSIDERED THE STATUS OF ASSESSEE AS AOP AND ACCORDINGLY, HE HELD THAT PAYMENT OF PROFESSIONAL FEE OF RS.10,20,000/ - TO MEMBERS OF AOP WAS DISALLOWABLE IN TERMS OF SEC. 40(BA) OF THE ACT. CIT(A) HAS ALSO AFFIRMED THE STAND OF ASSESSING OFFICER BASED ON HI S EARLIER DECISION IN THE CASE OF ASSESSEE FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. 5. BEFORE US, IT HAS BEEN POINTED OUT THAT THE SAID DISPUTE CAME UP BEFORE THE TRIBUNAL INITIALLY FOR ASSESSMENT YEAR 2006 - 07, WHEREIN VIDE ORDER DATED 19.9.2013 A SIMILA R ADDITION HAS BEEN DELETED. IT WAS POINTED OUT THAT THE SAID DECISION OF TRIBUNAL HAS BEEN FURTHER FOLLOWED BY THE TRIBUNAL IN ASSESSMENT YEAR 2008 - 09 VIDE ORDER DATED 14.8.2014 3 M/S. MEHTA JAISING DEVELOPERS ITA NO. 6746/MUM/2013 (SUPRA) AND FOR ASSESSMENT YEAR 2007 - 08 VIDE ORDER DATED 1.7.2015 (SUPRA) . THE AFORESAID FACTUAL MATRIX HAS NOT BEEN CONTROVERTED BY THE LD. DR BEFORE US. AS A CONSEQUENCE, FOLLOWING THE AFORESAID PRECEDENTS, WE SET - ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITION. 6. IN THE RESULT, APP EAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 0 T H SEPTEMBER, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 3 0 T H SEPTEMBER , 2016 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI