ADDL CIT 3(2), MUMBAI V. INDIAN RAYON & INDS. LTD ( NOW KNOWN AS ADITYA BIRLA NUVO LTD), MUMBAI

ITA 797/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6238 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 23-11-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJEEV DUTT
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI S.V. MEHROTRA (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO. 797/MUM/2010 ASSESSMENT YEAR- 2003-04 THE ACIT, 3(2), AAYAKAR BHAVAN, MUMBAI-400 020 M/S. INDIAN RAYON & INDUS. LTD., (NOW KNOWN AS ADITYA BIRLA NUVO LTD.), A-4, ADITYA BIRLA CENTRE, S.K. AHIRE MARG, WORLI, MUMBAI-400 030 PAN-AAACI 1747H (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SHRI MANISH SHAH RESPONDENT BY: SHRI SANJEEV DUTT O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 3.11.2009 PASSED BY THE LD. CIT(A)-7 FOR THE ASSESSMENT YEAR 2003-04 DELETING THE ADDITION OF RS 20,42,471/- U/S 40A(9) MADE BY THE A.O. IN THE ORDER PASSED U/S 143(3) R.W.S. 263 OF T HE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGINA L ASSESSMENT U/S 143(3) IN THIS CASE WAS COMPLETED ON 31.01.2006. S UBSEQUENTLY, THE CONCERNED CIT, MUMBAI SET-ASIDE THE ORIGINAL ORDER BY EXERCISING HIS POWER U/S 263 AND DIRECTED THE AO TO PASS FRESH ORD ER U/S 143(3) IN RESPECT OF PAYMENT MADE TO INDRAYON SCHOOL OF RS. 2 0,42,471/-. THE SAID AMOUNT WAS PAID BY THE ASSESSEE TO THE ABOVE MENTIO NED SCHOOL BEING 50% OF THE TUITION FEE OF THE CHILDREN OF ITS EMPLO YEES. WHILE GIVING EFFECT TO THE ORDER OF THE CIT, THE AO INVOKED THE PROVISI ONS OF SECTION 40A(9) OF THE ACT AND DISALLOWED THE EXPENSES OF RS 20,42,471 /-. ITA NO. 797/M/10 2 3. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION MADE BY THE AO OF RS. 20,42,471/-. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS ON APPEAL BEFORE US. 4. THE LEARNED AR OF THE ASSESSEE, IN THE COURSE OF APPELLATE PROCEEDINGS, BROUGHT TO OUR NOTICE THAT THE ORDER O F THE CIT, ON THE BASIS OF WHICH THE PRESENT PROCEEDINGS HAVE EMANATED, HAS BEEN SET ASIDE BY THE ORDER OF THE ITAT IN ITA NO 7513/MUM/2007 FOR T HE AY 2003-04 DATED 19 TH AUGUST OF 2009 WHEREIN THE BENCH HAS SET ASIDE THE ORDER OF THE CIT DATED 19.10.2007 BY OBSERVING AS UNDER: IN THIS YEAR, THE REASONS GIVEN BY THE LD CIT BY USING HIS POWERS U/S 263 TO SET ASIDE THE ASSESSMENT ORDER I S IDENTICAL AS IN THE EARLIER ASSESSMENT YEARS 1987-88, 2001-02 AND 2002- 03. THE TRIBUNAL HAD ALREADY CONSIDERED THE ISSUE WHETHER THERE WAS A JUSTIFICATION ON THE PART OF THE LD CIT TO INVOKE SECTION 263 AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY QUASHING THE ORDERS PASSED U/S 263. AS IN THIS YEA R, THE REASONS ARE IDENTICAL FOR INITIATING THE PROCEEDING S U/S 263, WE THEREFORE, FOLLOWING THE REASONS GIVEN IN ASSESSEE S OWN CASE IN ITA NO. 3111 TO 3113/M/2006, ORDER DATED 23.4.2008 QUASH THE PROCEEDINGS INITIATED U/S 263 AND ALSO CANCEL T HE ORDER DATED 19.10.2007 WHICH IS THE SUBJECT MATTER OF THI S APPEAL. 5. IN VIEW OF THIS ORDER OF THE ITAT, THE ORDER OF THE CIT DT 19.10.2007 HAS BEEN SET ASIDE. CONSEQUENTLY, THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF THE CIT DT 19.10.2007 AND THE CIT(A)S ORD ER THEREON DOES NOT SURVIVE. HENCE THE APPEAL OF THE REVENUE DOES NOT S URVIVE. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF NOVEMBER, 2010 SD/- SD/- (S.V. MEHROTRA) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30 TH NOVEMBER, 2010 RJ ITA NO. 797/M/10 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 797/M/10 4 DATE INITIALS 1 DRAFT DICTATED ON: 25.11.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 26.11.2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______