THE MANGALOREAN GARDEN HOMES CO OP HSG SOC. LTD, MUMBAI V. ITO 19(3)(3), MUMBAI

ITA 7480/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88482 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: PRADIP KEDIA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI , BEFORE SHRI D. MANMOHAN, VICE PRESIDENT (M.Z.) AN D SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.7480/MUM/2012 (A.Y.2009-10) THE MANGALOREAN GARDEN CO - OP. HSG. SOCIETY LTD. REBELLO ROAD, 132, HILL ROAD BANDRA (W), MUMBAI 400 050. GIR NO./PAN : AAAAT 3420 G (APPELLANT ) VS. THE ITO - 19(3)(3) ROOM NO.303, 3 RD FLR. PIRAMAL CHAMBERS, LALBAUGH , PAREL MUMBAI-400 012. (RESPONDENT) APPELLANT BY : SHRI PRADIP KEDIA RESPONDENT BY : SHRI VIVEK BATRA DATE OF HEARING : 05 /0 3 /2015 DATE OF PRON OUNCEMENT : 05 /0 3 /2015 ORDER PER CHANDRA POOJARI, A.M: THIS APPEAL IS BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) DATED 28/09/2012 FOR THE ASSESSMENT YEAR 2009-10. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WITH RE GARD TO THE DISALLOWANCE OF RS.7,83,960/- U/S.40(A)(IA) OF THE INCOME TAX AC T. 2. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE A SSESSEE IS HAVING NO INCOME UNDER THE HEAD PROFIT AND GAINS FROM BUSINE SS. BEING SO, THE PROVISIONS OF SEC.40(A)(IA) IS NOT APPLICABLE TO TH E FACTS OF THE CASE. THE LD. DR IS NOT ABLE TO CONTROVERT THE ARGUMENT OF THE LD . AR. 2 ITA NO.7480/M UM/2012 3. WE HAVE HEARD BOTH PARTIES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. SIMILAR ISSUE CAME FOR CONSIDERATION BEFORE THIS TRIBUNAL IN THE CASE OF SHARMA KAJARIA & CO. IN ITA NO.1288/KOL/2011 ORD ER DATED 17/2/2012 FOR THE ASSESSMENT YEAR 2006-07 WHEREIN THE TRIBUNA L OBSERVED THAT SEC.40(A)(IA) WOULD RESTRICT THE DEDUCTION WHICH AR E OTHERWISE PERMISSIBLE U/S. 30 TO 38 OF THE INCOME TAX ACT. IN OTHER WORDS , AS A RESULT OF THIS SECTION, THE DISALLOWANCE CAN BE MADE ONLY IN RESPE CT OF AMOUNT WHICH IS SOUGHT TO BE DEDUCTED UNDER THESE SECTIONS. AS A CO ROLLARY TO THIS POSITION, UNLESS A DEDUCTION IS CLAIMED IN RESPECT OF THE SAI D AMOUNT, U/S. 30 TO 38 OF THE ACT, THE DISALLOWANCE UNDER SECTION 40(A)(IA ) CANNOT COME INTO PLAY AT ALL. 4. BEING SO, IN OUR OPINION IT IS APPROPRIATE TO RE MIT THE ISSUE TO THE FILE OF THE AO TO EXAMINE WHETHER THE ASSESSEE CLAIMED A NY DEDUCTION U/S. 30 TO 38 OF THE ACT AND DECIDE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/03/2015 ! ' # $%& 05/03/2015 ' SD/- SD/- ( / D. MANMOHAN ) ( / CHANDRA POOJARI ) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; $% DATED 05/03/2015 . % . ./JV, SR. PS 3 ITA NO.7480/M UM/2012 ()* ()* ()* ()* +*!) +*!) +*!) +*!) / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0' ()% , , / DR, ITAT, MUMBAI 6. '12 3 / GUARD FILE. % % % % / BY ORDER, .*) () //TRUE COPY// 4 44 4 / 5 5 5 5 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI