STARCITY ENTERTAINMENT P.LTD, MUMBAI V. DCIT CC 4(2), MUMBAI

ITA 6867/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 8024 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 23-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT SOMAIYA
• Assessee Lawyers: SUNIL K RAMANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO. 6867 /MUM/20 1 6 (ASSESSMENT YEAR 20 13 - 14 ) STARCITY ENTERTAINMENT P. LTD. RAHEJA CENTRE POINT 4 TH FLOOR, CST ROAD 294, VIDYA NAGARI M ARG SANTACRUZ (EAST) MUMBAI - 400 098. PAN: AAACS8292D VS. DCIT CC 4(2) ROOM NO. 1918 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI - 400021. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SUNIL K. RAMANI & SHRI VINAY SINHA DEPARTMENT BY S HRI NI SHANT SOMAIYA DATE OF HEARING 2 5 . 9 . 201 8 DATE OF PRONOUNCEMENT 25 . 9 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 1.8.2016 PASSED BY THE LEARNED CIT(A) - 52, MUMBAI AND IT RELATES TO A.Y. 2013 - 14. GROUNDS URGED BY THE ASSESSEE GIVE RISE TO FOLLOWING TWO ISSUES : - (I) DISALLOWANCE OF EXPENSES CLAIMED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE IS NOT ENGAGED IN ANY BUSINESS ACTIVITY. (II) NON - CONSIDERATION OF SHORT TERM CAPITAL LOSS OF ` 49.69 LAKHS ARISING ON SALE OF VEHICLE. 2. L EARNED AR SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND CONSTRUCTION, FINANCE AND INVESTMENT. THE ASSESSEE HAD STOPPED ITS REAL ESTATE ACTIVITY IN THE YEAR 2005 ON TEMPORARY BASI S BUT WAS CONTINUING WITH ITS FINANCE AND INVESTMENT ACTIVITIES. THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE HAS STOPPED BUSINESS ACTIVITIES AND ACCORDINGLY DISALLOWED THE EXPENSES CLAIMED BY THE ASSESSEE. THE LEARNED CIT(A) ALSO CONFIRMED THE SA ME. STARCITY ENTERTAINMENT P. LTD. 2 3. LEARNED AR SUBMITTED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN A.Y. 2009 - 10 TO 2012 - 13 IN ITA NOS. 236, 1523 & 4387/MUM/2013 & ITA NO. 5551/MUM/2016 AND THE TRIBUNAL , VIDE ITS ORDER D ATED 27.6.2017 , RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE ISSUE AFRESH. HE SUBMITTED THAT THE SECOND ISSUE URGED BY THE ASSESSEE MAY ALSO BE SET ASIDE TO THE FILE OF AO, AS THE ASSESSING OFFICER HAS NOT EXAMINED CERTAIN DOC UMENTS RELATING TO THE SAME. ACCORDINGLY, LEARNED AR SUBMITTED THAT BOTH GROUNDS MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THEM AFRESH. 4. LEARNED DR, ON THE CONTRARY, SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(A). 5. HAVING H EARD THE RIVAL CONTENTIONS, WE ARE OF THE VIEW THAT BOTH ISSUE S CONTESTED BY THE ASSESSEE IS REQUIRED TO BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR THE REASON THAT THE ISSUE RELATING TO CLAIM OF EXPENSES HAS BEEN RESTORED TO THE FILE OF THE ASSE SSING OFFICER BY THE COORDINATE BENCH IN THE EARLIER YEARS AND THE ASSESSEE LIKES TO FURNISH CERTAIN DOCUMENTS RELATING TO THE SECOND ISSUE, WHICH NEEDS TO BE EXAMINED BY THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE BOTH ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THEM AFRESH IN ACCORDANCE WITH LAW, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 25 . 9 .201 8 . SD/ - SD/ - (RAVISH SOOD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 25 / 9 / 20 1 8 STARCITY ENTERTAINMENT P. LTD. 3 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// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI