GIRNAR COLONIZERS P.LTD, MUMBAI V. ITO 9(1)(4), MUMBAI

ITA 7394/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0693 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Set aside
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.7394/M/2017 ASSESSMENT YEAR: 2007-08 M/S. GIRNAR COLONIZERS PVT. LTD., C/O MANDHANIA & ASSOCIATES, 6-A, PIL COURT, 6 TH FLOOR, 111 M.K. ROAD, CHURCHGATE, MUMBAI 400 020 PAN: AABCG5481B VS. ITO 9(1)(4), 2 ND FLOOR, AAYAKAR BHAVAN, CHURCHGATE, MUMBAI - 400020 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI HARI S. RAHEJA, A.R. REVENUE BY : SHRI CHAUDHARY ARUNKUMAR SINGH, D.R . DATE OF HEARING : 25.02.2019 DATE OF PRONOUNCEMENT : 24.05.2019 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 15.04.2013 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2007-08. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE GRO UNDS OF APPEAL IS AGAINST THE ORDER OF LD. CIT(A) REJECTING THE CLAIM OF 4 PAYMENTS AGGREGATING TO RS.20,63,610/- WHICH WERE P AID TO MUNICIPAL CORPORATION OF GREATER MUMBAI AS PROPERTY TAX WHEREBY UPHOLDING THE ORDER OF AO. ITA NO.7394/M/2017 M/S. GIRNAR COLONIZERS PVT. LTD. 2 3. THE FACTS IN BRIEF ARE THAT THIS IS THE SECOND R OUND OF APPEAL BEFORE US. THE ORIGINAL ASSESSMENT ORDER WA S PASSED UNDER SECTION 143(3) DATED 17.12.2009 IN WHICH THE AO DISALLOWED THE PROPERTY TAX INCLUDED IN THE CAPITAL WORK IN PROGRESS OF RS.1,82,47,454/- WHICH WAS APPEALED BEF ORE THE LD. CIT(A) AND LD. CIT(A) VIDE ORDER DATED 09.03.2011 D IRECTED THE ASSESSEE TO PRODUCE BEFORE THE AO THE PROPERTY TAX BILLS, NOTICES AS ISSUED BY THE BMC AND AO WAS DIRECTED TO ALLOW T HE RELIEF TO THE ASSESSEE SUBJECT TO VERIFICATION OF THESE DOCUM ENTS. PURSUANT TO THE LD. CIT(A)S ORDER DATED 09.3.2011 AO PASSED AN ORDER ON 29.07.2011 DETERMINING THE TOTAL INCOME AT RS.7,20,22,170/- ALLOWING THE DEDUCTION IN RESPECT OF PROPERTY TAX PAID VIDE LETTER DATED 08.04.2011, 30.06.2011 A ND 07.07.2011. AGAIN AGGRIEVED BY THE ORDER OF AO DAT ED 29.07.2011 THE ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) VIDE HER ORDER DATED 01.05.2013 DIRECTED THE AO TO VERIFY THE CLAIM OF THE ASSESSEE AFTER GIVING DUE O PPORTUNITY TO THE ASSESSEE OF BEING HEARD AND DECIDE THE ISSUE AC CORDINGLY. THEREAFTER, THE AO PASSED THE ORDER GIVING EFFECT T O LD. CIT(A)S ORDER DATED 12.3.2013 AND ALLOWED THE RELIEF AFTER VERIFICATION OF PROPERTY TAX, BILLS AND RECEIPTS TO THE TUNE OF RS. 94,79,591/- AS AGAINST THE CORRECT CLAIM OF PROPERTY TAX OF RS.1,3 2,59,667/-. THE LD. CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASS ESSEE BY ALLOWING THE RELIEF TO THE EXTENT OF RS.3,48,892/- PAID ON 02.08.1996 AND CONFIRMED THE REMAINING PAYMENTS TO THE TUNE OF RS.34,31,185/- AS PER DETAILS BELOW: S.NO. IN THE TABLE IN THE DATE AMOUN T (IN RS.) WHETHER CONFIRME D BY BMC WHETHER SUPPORTE D BY BANK DETAILS WHETHER APPEARIN G IN THE BANK STATEMEN T REASON FOR DISALLOWANC E ITA NO.7394/M/2017 M/S. GIRNAR COLONIZERS PVT. LTD. 3 NOTIC E TO BMC 1. 31.01.199 8 70729 0 NO NO NO NOT CONFIRMED BY BMC 2. 31.01.199 8 42253 3 NO NO NO NOT CONFIRMED BY BMC 3. 28.09.200 2 43378 7 NO YES YES NOT CONFIRMED BY BMC 4. 28.09.200 2 50000 0 NO YES YES NOT CONFIRMED BY BMC 5. 30.09.200 3 43378 7 YES YES YES NOT PAID ON OR BEFORE 20.09.2003 6. 30.09.200 3 93378 7 YES YES YES NOT PAID ON OR BEFORE 20.09.2003 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US IN RESPE CT OF ITEM NO.2, 3, 6 & 7 AMOUNTING TO RS.20,63,610/-. THE LD . A.R. VEHEMENTLY SUBMITTED BEFORE US THAT THE ASSESSEE HA S ACTUALLY PAID THE PROPERTY TAX TO THE MUNICIPAL CORPORATION WHICH WERE NOT CONFIRMED BY THE BMC. OUT OF WHICH ITEM AT SL. NO.2 & 3 WERE NOT SUPPORTED WITH THE BANK DETAILS WHEREAS TH E ITEM NO.6 & 7 WERE DULY SUPPORTED WITH THE BANK DETAILS AND A LSO IN RESPECT OF ITEM NO.2 & 3 THERE WAS NO BANK STATEMEN T AVAILABLE WITH THE ASSESSEE WHEREAS IN RESPECT OF ITEM NO.6 & 7 BANK STATEMENTS WERE PRODUCED BUT ALL THESE PAYMENTS WER E NOT CONFIRMED BY BMC. THE LD. A.R. ALSO REFERRED TO PA GE NO.6 OF THE PAPER BOOK WHICH GIVES ITEMWISE BIFURCATION OF EXPENSES ALSO SHOWING THE PROPERTY TAX WHICH WAS PAID RIGHT FROM THE YEAR 1996-97 TO 2007-08. AT PAGE NO.8 OF THE PAPER BOOK THE DETAILS OF ALL THE MUNICIPAL CORPORATION WERE GIVEN ALONG W ITH DATES, CHEQUE NUMBER, BANK, PERIOD AND AMOUNT ETC. FROM 02 .08.1996 ITA NO.7394/M/2017 M/S. GIRNAR COLONIZERS PVT. LTD. 4 TO 01.04.2005 AGGREGATING TO RS.1,82,47,454/-. THE LD. A.R. ALSO REFERRED TO THE COPIES OF LEDGER ACCOUNTS IN W HICH ALL THESE PAYMENTS WERE REFLECTED AND DULY PAID RIGHT FROM 19 96-97 TO 2006-07. SIMILARLY, THE LEDGER ACCOUNT IN RESPECT OF PROPERTY TAX PAYABLE WAS FILED AT PAGE NO.13 & 14. THE LD. A.R. THEN BROUGHT TO OUR ATTENTION THE LETTER ADDRESSED TO ITO DATED 13.09.2012 IN RESPONSE TO NOTICE UNDER SECTION 133(6) OF THE ACT DATED 13.08.212 WHEREIN IN THE LAST PARA IT IS STATED THA T SINCE THE PAYMENTS WERE MADE AT THE CASH COUNTER IT CAN NOT B E CONFIRMED WHETHER PAYMENT IS MADE BY ASSESSEE AND F URTHER THE DETAILS OF SR. NO.2, 3, 6 & 7 DO NOT TALLY WITH THE OFFICE RECORDS WHICH MAY BE NOTED. THE LD. A.R. THEREFORE STATED THAT BMC HAS NOT DISPUTED OR DENIED THE PAYMENTS HAVING BEE N RECEIVED BUT REFUSED TO CONFIRM THE SAME AS IT IS NOT POSSIB LE TO CONFIRM THE PAYMENTS SINCE THE PAYMENTS WERE MADE AT THE CA SH COUNTER. THE LD. A.R. THEREFORE SUBMITTED THAT ALL THE NECESSARY DETAILS WERE SUBMITTED BEFORE THE AUTHORITIES BELOW AND THE DISALLOWANCE IN RESPECT OF FIRST TWO PAYMENTS, THE BANK STATEMENT IS NOT AVAILABLE BUT THESE WERE DULY ACCO UNTED FOR IN THE BOOKS OF ACCOUNTS AND THE PAYMENTS WERE MADE TH ROUGH CHEQUES WHEREAS IN RESPECT OF REMAINING TWO PAYMENT S AT SL. NO. 6 & 7 EVEN THE BANK STATEMENTS ARE AVAILABLE BE SIDES BANK DETAILS ETC. WHILE DRAWING OUR ATTENTION TO PAGE N O.8 OF THE PAPER BOOK THE LD. A.R. SUBMITTED THAT ALL THESE PA YMENTS WERE DULY MADE THROUGH CHEQUES/DDS DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS AND THEREFORE CAN NOT BE REJECTED SIMPLY ON THE GROUND THAT THESE WERE NOT CONFIRMED BY THE BMC . THE LD. A.R. SUBMITTED THAT WHEN THE PAYMENTS WERE MADE THR OUGH ITA NO.7394/M/2017 M/S. GIRNAR COLONIZERS PVT. LTD. 5 BANKING CHANNEL AND DULY ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS, THE SAME MAY BE ALLOWED TO THE ASSESSEE. 5. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE O RDER OF LD. CIT(A) BY SUBMITTING THAT ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNTS, BILLS, ENTRIES AND BANK STATEMENTS IN RESPECT OF FIRST TWO PAYMENTS WHEREAS IN RESPECT OF THE REMAINING TW O PAYMENTS THE BANK STATEMENT WAS PRODUCED. THEREFORE, THE OR DER OF LD CIT(A) MAY KINDLY BE CONFIRMED. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THE DISPUTE IS WITH REGARD TO THE FOLLOWING PAYMENTS: S.NO. DATE AMOUNT (RS.) 1 31.01.1998 7,07,290 2 31.01.1998 4,22,533 3 28.09.2002 4,33,787 4 28.09.2002 5,00,000 TOTAL 20,63,610 7. WE OBSERVE THAT IN RESPECT OF FIRST TWO PAYMENTS , THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE THE BANK STAT EMENTS WHEREAS BANK DETAILS SUCH AS DATE, CHEQUE NO., NAME OF THE BANK, AMOUNTS WERE ALL FURNISHED BEFORE THE AO AND LD. CIT(A). SIMILARLY IN RESPECT OF THE NEXT TWO PAYMENTS THE A SSESSEE BESIDES PRODUCING THE DETAILS AS STATED ABOVE ALSO PRODUCED THE BANK STATEMENT. AFTER PERUSING THE FACTS BEFORE US THE DETAILS OF PROPERTY TAX PAID FOR THESE YEARS, COPIES OF LEDGER ACCOUNTS, COPIES OF BANK STATEMENT, WE ARE OF THE VIEW THAT A SSESSEE SHOULD BE ALLOWED THESE PAYMENTS AS THE ASSESSEE HA S PRODUCED ALL THE NECESSARY DETAILS. IN RESPECT OF FIRST TWO ITEMS THE ASSESSEE HAS PRODUCED THE BANK DETAILS SUCH AS CHEQ UE NO M ITA NO.7394/M/2017 M/S. GIRNAR COLONIZERS PVT. LTD. 6 LEDGER COPIES EXCEPT THE BANK STATEMENT BUT IN RESP ECT THE REMAINING TWO ITEMS THE ASSESSEE HAS EVEN PRODUCED BANK STATEMENT. UNDER THESE FACT WE ARE OF THE VIEW THAT THESE EXPENSES SHOULD BE ALLOWED TO THE ASSESSEE. MOREOVE R THE PAYMENTS ARE VERY OLD. WE, THEREFORE, ARE INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO ALLOW RS. 20,63,610/-. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24.05.2019. SD/- SD/- ( RAM LAL NEGI) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24.05.2019. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.