SHETH MERCANTILE CORPORATION, MUMBAI V. INCOME TAX OFFICER 13(3)(1), MUMBAI

ITA 7037/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7561 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 11-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: Y N THAKKAR
• Keywords: Earning of tax free income
• Section: 14A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) I.T.A. NO. 7037 /MUM/20 1 7 (ASSESSMENT YEAR 20 11 - 12 ) M/S. SHETH MERCANTILE CORPORATION 11/15, ESSAJI STREET MANDVI, MUMBAI - 400 003. PAN : AA CFS5130P VS. ITO 13(3)(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI Y.N. THAKKAR DEPARTMENT BY S MT. N. HEMALATHA DATE OF HEARING 5 . 4 . 201 8 DATE OF PRONOUNCEMENT 5 . 4 . 201 8 O R D E R PER B.R. BAS KARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.9.2017 PASSED BY THE LEARNED CIT(A) - 28, MUMBAI AND IT RELATES TO A.Y. 2011 - 12. 2. THE ISSUE URGED BY THE ASSESSEE RELATES TO DISALLOWANCE MADE BY THE ASSESSING OFFIC ER U/S. 14A OF THE ACT AND CONFIRMED BY THE LEARNED CIT(A). 3. AT THE TIME OF HEARING LEARNED AR SUBMITTED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE COORDINATE BENCH IN ASSESSEES OWN CASE IN A.Y. 2008 - 09 AND THE TRIBUNAL, VIDE ITS ORDER DATED 14.2.20 14 PASSED IN ITA NO. 949/MUM/2012 , HAS RESTRICTED THE DISALLOWANCE U/S. 14A OF THE ACT TO 20% OF THE EXEMPT INCOME. ACCORDINGLY, HE SUBMITTED THAT THE ADDITION MADE IN THIS YEAR MAY ALSO BE RESTRICTED TO 20% OF THE EXEMPT INCOME AS HELD IN A.Y. 2008 - 09. 4 . ON THE CONTRARY, LEARNED DR SUBMITTED THAT HON'BLE SUPREME COURT HAS RENDERED ITS LATEST DECISION ON 14A IN THE CASE OF MAXOPP INVESTMENT LTD. (CIVIL APPEAL NO. 104 - 109 OF 2015 DATED 12.2.2018 ), WHEREIN MANY PROPOSITIONS M/S. SHETH MERCANTILE CORPORATION 2 HAVE BEEN LAID DOWN . ACCORDINGLY, SHE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE ISSUE AFRESH IN THE LIGHT OF THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE ABOVE SAID CASE. 5. WHEN WE WENT THROUGH THE ORDER PASSED BY THE LEARN ED CIT(A), WE NOTICED THAT THE ASSESSEE HAS NOT CI TED DECISION RENDERED BY THE TRIBUNAL IN A.Y. 2008 - 09 BEFORE THE LEARNED CIT(A). WHEN IT WAS POINT ED OUT , THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS ALREADY MOVED A PETITION U/S. 154 OF THE ACT BEFORE T HE LEARNED CIT(A) AND THE SAME IS PENDING BEFORE HIM. 6. WHEN IT WAS OPINED BY THE BENCH THAT THE MATTER MAY ALSO REQUIRE FRESH EXAMINATION IN THE LIGHT OF THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF MAXOPP INVESTMENT LTD. (SUPRA) , THE LEARNED AR SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LEARNED CIT(A) FOR EXAMINING THE ISSUE AFRESH IN THE LIGHT OF THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE ABOVE SAID CASE AND ALSO CONSIDERING THE DECISION RENDERED BY T HE COORDINATE BENCH IN ASSESSEES OWN CASE IN A.Y. 2008 - 09. 7. LEARNED DR ALSO AGREED WITH THE SAME. 8. HAVING HEARD THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR EXAMINING THE ISSUE AFRES H BY DULY CONSIDERING THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF MAXOPP INVESTMENT LTD. (SUPRA) AND ALSO DECISION RENDERED BY THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN A.Y. 2008 - 09. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO HIS FILE FOR EXAMINING IT AFRESH. M/S. SHETH MERCANTILE CORPORATION 3 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 5 . 4 .201 8 . SD/ - SD/ - (SANDEEP GOSAIN ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 5 / 4 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. TH E 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