THE ITO 5(2)(2), MUMBAI V. M/S. MIRINDA DISTRIBUTORS PVT. LTD, MUMBAI

ITA 7544/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55649 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-09-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 19-12-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YOGESH A THAR
• Section: 143(3); 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A NO.7544/ MUM/2007 ASSESSMENT YEAR: 1999-2000 INCOME TAX OFFICER 5(2)(2) .. APPELLANT AAYAKAR BHAVAN, M.K. ROAD, MUMBAI VS MIRINDA DISTRIBUTORS PVT LTD. .. RESPONDEN T 29, MAMA PARMANAND MARG, OPERA HOUSE, MUMBAI-04. PA NO.AABCM 0282 C APPEARANCES: P.K.B,.MENON, FOR THE APPELLANT YOGESH A THAR, , FOR THE RESPONDENT DATE OF HEARING : 27.9.2011 DATE OF PRONOUNCEMENT : 25 -10-2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CALL ED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED 5 TH OCTOBER, 2007, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, F OR THE ASSESSMENT YEAR 1999- 2000 ON THE FOLLOWING GROUNDS: (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT NO SPECIFIC DEFECT WAS FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THAT SECTION 145 OF THE ACT, 1961 WA S NOT APPLICABLE. (B) THE LD CIT (A) SHOULD HAVE ALLOWED THE APPORTION ING OF EXPENSES TO SHARE TRADING ACTIVITY BASED ON TURNOVER OF SHARE TRADING A CTIVITY VIS--VIS TOTAL TURNOVER. I.T.A NO.7544/ MUM/2007 ASSESSMENT YEAR: 1999-2000 2 2. THERE IS NO DISPUTE THAT THE ISSUE IN APPEAL IS SQUARE LY COVERED BY TRIBUNALS ORDER, IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1998-99 . AS A MATTER OF FACT, THE CIT(A), IN THE IMPUGNED ORDER OBSERVED THAT HE CASE LAWS RELIED UPON BY THE LD AO ARE NOT APPLICABLE IN THE INSTANT CASE AND IT HARD LY MATTERS WHETHER THE DEPARTMENT HAS GONE IN APPEAL AGAINST THE ORDER OF HO NBLE ITAT FOR A.Y. 1998-99 IN THE APPELLANTS OWN CASE OR NOT, THE ORDER OF HONBLE ITAT IN ASSESSEES OWN CASE IS BINDING ON THE AUTHORITIES BELOW. THUS, I DO NOT FIN D THE ACTION OF LD AO IN CONVENING THE DISCLOSED PROFIT IN THE TRADING BUSINESS OF SHARES IN TO LOSS, JUSTIFIED EITHER LEGALLY OR FACTUALLY IN THE FACTS AND CIRCUMSTANCES OF THE INST ANT CASE AS DISCUSSED AND DETAILED ABOVE. THEREFORE, THE LD AO IS DIRECTED TO ACCEPT THE DISCLOSED PROFIT IN THE TRADING BUSINESS OF SHARES. THE APPEAL SUCCEEDS ON THIS GRO UND. 3. LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY AGREES THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE, BY TRIBUNALS ORDER IN ASSESSEES O WN CASE, BUT STILL RELIES VEHEMENTLY ON THE ORDER OF THE ASSESSING OFFICER. 4. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MAT TER THAN THE VIEW TAKEN BY THE COORDINATE BENCH IN ASSESSEES OWN CASE FOR IMMEDIAT ELY PRECEDING YEAR AND WHICH HAS ONLY BEEN FOLLOWED BY THE CIT(A). LEARNED DEPARTMENTAL REPRESENTATIVE ALSO DID NOT POINT OUT ANY REASONS TO TAKE ANY OTHER V IEW OF THE MATTER. IN OUR CONSIDERED VIEW, THEREFORE, CIT(A) WAS QUITE JUSTIFIE D IN FOLLOWING TRIBUNALS ORDER. WE APPROVE THE ACTION AND DECLINE TO INTERFERE IN T HE MATTER. 5. IN THE RESULT, APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2011 SD/- (D.MANMOHAN) VICE PRESIDENT SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 25 TH OCTOBER, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),V, MUMBAI 4. COMMISSIONER OF INCOME TAX, MV-V , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI