IND-AUST MARITIME P.LTD, NAVI MUMBAI V. DCIT 10(3), MUMBAI

ITA 7599/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4059 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: L
• Next Hearing Date: 27-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Additional evidence
• Section: 143(3); 14A; 37

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI L BENCH BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & RAM LAL NEGI,JUDICIAL MEMBER /.ITA NO.7599/MUM/2013, /ASSESSMENT YEAR-2010-11 M/S. IND-AUST MARITIME PRIVATE LIMITED,715, J.K. CHAMBERS, SECTOR- 17,VASHI, NAVI MUMBAI-400 073. PAN:AAACI 7515 H VS. DY. CIT -10(3) AAYAKAR BHAVAN MUMBAI-400 020. ( / APPELLANT) ( / RESPONDENT) /.ITA NO.7585/MUM/2013, /ASSESSMENT YEAR-2010-11 DY. CIT -10(3) AAYAKAR BHAVAN,MUMBAI-400 020. VS. M/S. IND-AUST MARITIME PRIVATE LIMITED. ( / APPELLANT) ( / RESPONDENT) /ASSESSEE BY : NONE / REVENUE BY : SHRI PANKAJ KUMAR-DR / DATE OF HEARING : 27.01.2016 / DATE OF PRONOUNCEMENT : 03.02.2016 , 1961 1961 1961 1961 254 254 254 254( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DTD.04.10.2013 OF THE CIT(A)- 22,MUMBAI THE ASSESSEE AND THE ASSESSING OFFICER(AO)HAVE FILED CROSS APPEALS FOR THE YEAR UN DER APPEAL.ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF SHIP MANAGEMENT AND PROVIDING TECHNICAL AND ALLIED SERVICES ETC.FILED ITS RETURN OF INCOME ON 01/10/2010,DECLARING TOTAL INCOME AT RS.5 .37 CRORES.THE AO COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ACT ON 30.01.2013 DET ERMINING THE INCOME OF THE ASSESSEE AT RS. 6.39 CRORES. 7599/MUM/2013: 2 .EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE I S ABOUT DISALLOWANCE OF RS.82.62 LAKHS UNDER THE HEAD COMMISSION PAYMENT.DURING THE ASSESSMENT P ROCEEDINGS,THE AO FOUND THAT THE ASSESSEE HAD CLAIMED EXPENDITURE OF RS.82,62,000/- AS COMMISSION CHARGES PAID TO GREATSHIP GLOBAL OFFSHORE SERVICES PTE.LTD.(GGOSPL).HE DIRECT ED THE ASSESSEE TO FILE DETAILS WITH REGARD TO THE SAID EXPENSES.AS PER THE AO THE ASSESSEE HAD FILED DETAILS ABOUT PAYMENT AND HAD CLAIMED THAT SAME WAS ALLOWABLE AS PER THE PROVISIONS OF SE CTION 37 OF THE ACT.AFTER CONSIDERING THE SAME,HE HELD THAT THE ASSESSEE HAD MADE PAYMENT ON THE BASIS OF THE INVOICE DTD.08.03.2010,THAT DETAILS OF SERVICES RENDERED WERE NOT FILED,THAT IT DID NOT FURNISH MOU TO JUSTIFY PAYMENT OF COMMISSION,THAT FORM 15CB WAS NOT PRODUCED,THAT TDS WAS NOT DEDUCTED BY IT,THAT IT HAD FAILED TO ESTABLISH BENEFIT DERIVED OUT OF THE PAYMENT MAD E TO GGOSPL.FINALLY,HE DISALLOWED THE COMMISSION PAYMENT,AMOUNTING TO RS.82.62 LAKHS,CLAI MED BY THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).BEFORE HIM IT WAS CONTENDED THAT IT HAD PRODUCED ALL THE DOCUMENTS WITH REGARD TO THE COMMISSION PAYMENT,THAT COPY OF INVOICE,FORM 15CB AND THE MOU ENTERED IN TO BETWEEN ITA/7599 & 7585/M/13,AY.10-11-IND.AUST MARITIME 2 IT AND THE FOREIGN COMPANY WERE SUBMITTED VIDE LETT ER DATED 18.01.2013.BEFORE HIM THE ASSESSEE PRODUCED A CONFIRMATION LETTER OF GGOSPL DATED 13.0 9.2010 THAT GAVE DETAILS ABOUT THE PAYMENT OF COMMISSION.IN THE LETTER THE FOREIGN COMPANY STA TED THAT IT HAD RENDERED TECHNICAL AND PROFESSIONAL SERVICES TO THE ASSESSEE.THE FAA MENTI ONED THAT THE CONFIRMATION LETTER AND THE MOU WERE NOT FILED BEFORE THE AO,THAT THE ASSESSEE HAD NOT MADE ANY APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES,1962(RULES)FOR ADMISSIO N OF ADDITIONAL EVIDENCES.REFERRING TO SUB RULE 4 OF THE RULE 46 AND MANY A CASES,HE DID NOT C ONSIDER BOTH THE DOCUMENTS WHILE DECIDING THE APPEAL. HE ALSO HELD THAT THERE WAS NO EVIDENCE OF RENDERING OF SERVICES BY GGSOPL. FINALLY,HE REJECTED THE APPEAL FILED BY THE ASSESSE E. 4. DURING THE COURSE OF HEARING NONE APPEARED BEFORE U S,AS STATED EARLIER.DEPARTMENTAL REPRESENTATIVE (DR)RELIED UPON THE ORDER OF THE AO AND THE FAA. 5. WE HAVE HEARD THE DR PERUSED THE MATERIAL BEFORE U S. WE FIND THAT THE AO HAD MENTIONED IN HIS ORDER THAT THE ASSESSEE HAD PRODUCED CERTAIN DO CUMENTS,THAT HE HAD NOT MENTIONED AS TO WHICH DOCUMENTS WERE FURNISHED,THAT THE ASSESSEE HAD FILE D THE MOU AND THE CONFIRMATION LETTER OF GGSOPL BEFORE THE FAA,THAT HE DID NOT CONSIDER THE SAME AND REJECTED THEM UNDER RULE 46A OF THE RULES,THAT PAYMENT MADE BY THE ASSESSEE TO THE SUPPLIER OF SERVICES WAS ROUTED THROUGH BANKING CHANNELS.CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE,WE ARE OF THE OPINION THAT THE MATTER NEEDS FURTHER VERIFICATION AND INVESTIGATION,THAT THE FAA SHOULD NOT HAVE DECIDED THE APPEAL ON A HYPER TECHNICAL GROUND.THER EFORE,IN THE INTEREST OF JUSTICE,WE ARE RESTORING BACK THE ISSUE TO THE FILE OF THE AO,WHO WILL DECIDE THE MATTER AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND AFTER CONSIDERING THE DOCUMENTS FILED BEFORE THE FAA.THE APPELLANT-COMPANY IS DIRECTED TO EXTEND FULL COOPERATION TO THE AO IN SUBMITTING ALL THE NECESSARY DOCUMENTS.EFFECTIVE GR OUND IS DECIDED IN FAVOUR OF THE ASSESSEE,IN PART. ITA NO.7585/MUM/2013: 6. SOLITARY GROUND RAISED BY THE AO DEALS WITH ADDITIO N MADE BY HIM AND REDUCED BY THE FAA U/S. 14A OF THE ACT.ON A QUERY BY THE BENCH,THE DR FAIRLY CONCEDED THAT THE TAX INVOLVED IN THE APPEAL FILED BY THE AO WAS BELOW MONETARY TAX LIMIT PRESCRIBED BY THE CBDT VIDE CIRCULAR NO.21/2015 DATED 10. 12.2015.THEREFORE,WE ARE DISM ISSING THE APPEAL FILED BY THE AO AS NOT MAINTAINABLE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PAR TLY ALLOWED AND APPEAL OF THE AO IS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD FEBRUARY, 2016. 3 , 2016 SD/- SD/- ( /RAM LAL NEGI) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 03.02. 2016 . . . .. . JV.SR.PS. ITA/7599 & 7585/M/13,AY.10-11-IND.AUST MARITIME 3 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.