TOSHVIN ANALYTICAL P.LTD, MUMBAI V. DCIT 1(3), MUMBAI

ITA 804/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6677 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 16-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Assessee Lawyers: RUTURAJ GURJAR
• Keywords: Rectification of order; Revised return; Revenue expenditure
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.804/M/2016 ASSESSMENT YEAR: 2009-10 M/S. TOSHVIN ANALYTICAL PVT. LTD., 103, S.J. HOUSE, 1 ST FLOOR, SITARAM MILLS COMPOUND, NM JOSHI MARG, LOWER PAREL, MUMBAI 400 011 PAN: AABCT 4482D VS. DCIT 1(3)(2), ROOM NO.540, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. RD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI RUTURAJ GURJAR, A.R. REVENUE BY : SHRI V. JUSTIN, D.R. DATE OF HEARING : 26.06.2018 DATE OF PRONOUNCEMENT : 28.06.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 18.12.2015 OF THE COMMISSIONE R OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2009-10. 2. THE VARIOUS REVISED GROUNDS RAISED BY THE ASSESS EE ARE AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING DISALLOWANCE OF 4/5TH OF RENOVATION EXPENDITURE, WI THOUT APPRECIATING THAT THE EXPENDITURE WAS REVENUE IN NATURE AND INCU RRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE APPELLANT'S BUSI NESS; AS SUCH, THE SAME ITA NO.804/M/2016 M/S. TOSHVIN ANALYTICAL PVT. LTD. 2 WAS FULLY ALLOWABLE IN THE YEAR OF INCURRING THE SA ME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT C ONSIDERING / APPRECIATING THE APPELLANT'S SUBMISSIONS DULY MADE BEFORE HIM FROM TIME TO TIME IN RESPECT OF THE ISSUES RAISED IN GRO UNDS IN RESPECT OF RENOVATION EXPENDITURE, AND IN RESPECT OF THE ADDIT IONAL GROUNDS, DULY RAISED BEFORE HIM. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE APPELLANT HAD NOT FILED REVISED RETURN OF INCOME WI THIN PRESCRIBED TIME LIMIT WHILE ADJUDICATING THE ADDITIONAL GROUND VIDE RECTIFICATION ORDER DATED 15/07/2016 WHICH WAS RECEIVED BY ASSESS EE ON 18/08/2017. 4. REASONS ASSIGNED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) ARE VAGUE, WRONG, INSUFFICIENT AND CONTRARY TO LAW. 3. THE ISSUE RAISED IN GROUND NO.1 & 2 IS AGAINST T HE CONFIRMATION OF DISALLOWANCE TO THE TUNE OF 4/5 TH OF THE RENOVATION EXPENDITURE INCURRED BY THE ASSESSEE ON A LEASED PREMISES WHICH WAS OF REVENUE NATURE AND WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE AND ALSO THAT LD. CIT(A) HAS FAILED TO CON SIDER AND APPRECIATE THE ASSESSEES SUBMISSION AS MADE BEFORE THE APPELLATE AUTHORITY IN THE APPELLATE PROCEEDING. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS INCURRED EX PENDITURE BY WAY OF RENOVATION ON THE LEASED PROPERTY WHICH W AS CLAIMED AS REVENUE EXPENDITURE BY THE ASSESSEE ON T HE GROUND THAT EXPENDITURE WAS OF REVENUE NATURE AND I NCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. WE FURTHER FIND THAT THE ASSESSEE HAS FI LED WRITTEN SUBMISSION BEFORE THE LD. CIT(A) TO THIS EFFECT THA T THE SAID EXPENDITURE IS OF REVENUE NATURE ALONG WITH BILLS A ND VOUCHERS. THE ASSESSEE HAS ALSO RELIED ON A DECISIO N OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AMW AY INDIA ITA NO.804/M/2016 M/S. TOSHVIN ANALYTICAL PVT. LTD. 3 WHICH WAS NOT CONSIDERED BY THE APPELLATE AUTHORITY WHILE PASSING THE ORDER. MOREOVER, THE ORDER PASSED BY LD. CIT(A) IS VERY CRYPTIC AND BRIEF. UNDER THESE CIRCUMSTANCE S, WE ARE OF THE VIEW THAT THE MATTER SHOULD BE RESTORED TO T HE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE SAME AS PER FACTS AND LAW AFTER AFFORDING REASONABLE OPPORTUNIT Y TO THE ASSESSEE. ACCORDINGLY, GROUND N.1 & 2 ARE ALLOWED FOR STATISTICAL PURPOSES. 5. THE ISSUE RAISED IN GROUND NO.3 IS AGAINST THE OR DER OF THE LD. CIT(A) HOLDING THAT THE REVISED RETURN WAS N OT FILED WITHIN THE PRESCRIBED TIME WHILE ADJUDICATING THE A DDITIONAL GROUND IN THE RECTIFICATION ORDER DATED 15.07.2016 RECEIVED BY THE ASSESSEE ON 18.08.2017. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THERE IS A CONTRADICTION IN THE FINDINGS OF THE LD. CIT(A) IN PARA 3 OF THE APPELLATE ORDER DATED 18.12.2015. THE LD. CIT(A) MENTIONED THAT THE ORIGI NAL RETURN WAS FILED ON 30.09.2009 WHEREAS THE REVISED R ETURN WAS FILED ON 23.11.2009 WHICH APPEARED TO BE CORREC T AFTER PERUSING THE COPIES OF ACKNOWLEDGEMENT FILED BY THE ASSESSEE IN THE PAPER BOOK AT PAGE NO.1 & 4 WHEREAS WHILE PAS SING THE ORDER UNDER SECTION 154 OF THE ACT ARISING OUT OF T HE ORDER DATED 18.12.2015 WHICH IS THE ORDER UNDER APPEAL BE FORE US. THE LD. CIT(A) IN PARA 5 OF THE SAID ORDER NOTED THA T THE REVISED RETURN HAS NOT BEEN FILED WITHIN THE STIPUL ATED TIME AS PRESCRIBED IN THE INCOME TAX ACT AND THEREFORE THE LD. CIT(A) HAS NOT CONSIDERED THE SAME AND THUS REJECTED THE A DDITIONAL ITA NO.804/M/2016 M/S. TOSHVIN ANALYTICAL PVT. LTD. 4 GROUND RAISED BY THE ASSESSEE. SINCE THERE ARE SEV ERAL INFIRMITIES IN THE OBSERVATION OF THE LD. CIT(A) ON THIS ISSUE, WE DEEM IT FIT TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER AFFORDING REASONABL E OPPORTUNITY TO THE ASSESSEE AND DECIDE THE SAME AS PER FACT AND LAW. 7. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.06.2018. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 28.06.2018. * 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 ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.