DAULAT AUTOMOBILES, MUMBAI V. ITO 17 (1)(3), MUMBAI

ITA 7094/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8348 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 201; 13; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM / I.T.A. NO S . 7094 & 7095 / MUM/ 20 1 8 ( / ASSESSMENT YEAR S : 201 2 - 1 3 & 2014 - 15 ) DAULAT AUTOMOBILES 42, R. KAMANI MARG, BALLARD ESTATE, FOR T, MUMBAI - 400001 . / VS. ITO 17(1)(3) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AAAFD 0919 R ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 18/02/2020 /DATE OF PRONOUNCEMENT: 20 / 0 4 / 2020 / O R D E R PER SHAMIM YAHYA, AM: THESE APPEALS BY THE ASSESSEE ARE AGAINST THE O RDER OF THE LD. CIT(A) DATED 03.05.2018 AND PERTAIN TO A.YS.2012 - 13 & 2014 - 15 . 2. THE ISSUE RAISED FOR A.Y.2012 - 13 IS THAT THE CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 1,14,572/ - MADE BY AO ON ACCOUNT OF ADHOC DISALLOWANCE @ 15% OF RS.7,63,811/ - BEING EXPENDITURE FOR LABOUR & SERVICE CHARGES, COMMISSION, MISCELLANEOUS EXPENSE, REPAIR S, PRINTING AND ACCESSORIES ETC . F OR AY 2013 - 14 THE ISSUE IS SAME ONLY FIGURES ARE OF RS. 1,05,751/ - AD DITION UPHELD IN RESPECT OF EXPENDITURE TOTALLY OF RS.7,05,003/ - . 3. IN THE A SSESSMENT ORDER, THE AO MADE THE DISALLOWANCE BY SIMPLY NOTING THAT THE IMPUGNED EXPENDITURE INCURRED IN CASH AND ASSESSEE BY : NONE REVENUE BY: SHRI CHAIT ANYA ANJARIA ITA. NOS. 7094 & 7095/M/2018 A.YS. 2012 - 13 & 2014 - 15 2 NON - BUSINESS ELEMENT IN THE SAME CANNOT BE RULED OUT. H ENCE, HE MADE ESTIMATED THE DISALLOWANCE OF 15%. UPON ASSESSEE APPEAL, THE LD. CIT(A) C ONFIRMED THE SAME. 4 . AGAINST THE ABOVE ORDER, THE ASSESSEE IS AN APPEAL BEFORE THE HONBLE ITAT. I HAVE HEARD THE LD. DR AND PERUSED THE RECORDS . NONE - APPEARED ON BEHALF OF THE ASSESSEE. 5. UP ON CAREFUL CONSIDERATION I NOTE THAT TH E ADHOC DISALLOWANCE @ 15% IS DONE BY AO. THIS IS SOLELY BASED UPON THE OBSERVATION THAT THE EXPENDITURE IS IN CASH AN D ELEMENT OF PERSONAL USE CANNOT BE RULED OUT. I ALSO NOTE THAT BEFORE THE LD. CIT(A) ASSESSEE HAS VEHEMENTLY DISPUTED THAT ALL THE EXPENDITURE S ARE IN CASH. IN MY CONSIDERED OPINION , THE ADDITION IS BASED UPON SURMISE AND CONJECTURES TOTALLY UNSUSTAINABLE IN LAW. IN MY CONSIDERED OP INION, THE INTEREST OF JUSTICE WHICH SERVED IF THE DISALLOWANCE IS RESTRICTED TO 5% AS AGAINST THE 15% DONE BY AUTHORITIES BELOW. 6. ACCORDINGLY, I DIRECT THAT DISALLOWANCE BE RESTRICTED TO 5% INSTEAD OF 15% OF IMPUGNED EXPENDITURE . IN THE RESULT , THESE APPEALS FILED BY THE ASSESSES STAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 /0 4 /2020 S D/ - ( SHAMIM YAHYA ) / ACCOUNTANT MEMBER MUMBAI; DATED : 20 / 04/2020 V IJAY PAL SINGH/SR. PS ITA. NOS. 7094 & 7095/M/2018 A.YS. 2012 - 13 & 2014 - 15 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// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI