ACIT CIR 16(2), MUMBAI V. LAXMI MANI AIYER, MUMBAI

ITA 8270/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9442 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH O RAJORA
• Keywords: Diversion of income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI SANJAY ARORA (ACCOUNTANT MEMBER) ITA NO.8270/MUM/2011 ASSESSMENT YEAR: 2008-09 ACIT, CIRCLE 16(2), MATRU MANDIR, TARDEO ROAD, MUMBAI. LAXMI MANI AYER, L/1, BREACH CANDY APARTMENTS, BHULABHAI DESAI ROAD, MUMBAI-26 PA NO.AABPA 7143 B (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI MANOJ KUMAR RESPONDENT BY: SHRI MAHESH O RAJORA DATE OF HEARING: 21.11.2012 DATE OF PRONOUNCEMENT: 5. 12.2012 ORDER PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2008-09 AGAINST ORDER DATED 20.9.2011 OF LD CIT(A) -27, MUMBAI ON FOLLOW ING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE A. 0. WI THOUT APPRECIATING THAT THE FIRM DOES NOT HAVE ANY CONTROL OVER THE CHARGE CREATED BY THE PARTNERSHIP DEED ON THE GROSS PROFIT OF THE FIRM IN FAVOUR OF THE SPOUSE/HEIRS OF THE DECEASED PARTNERS WHICH WOULD C ONSTITUTE DIVERSION OF INCOME BY WAY OF OVERRIDING TITLE WHICH WILL CO NSTITUTE REVENUE RECEIPT COMING WITHIN THE MEANING OF SEC.28(IV) OF THE IN C OME-TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE A. 0. WI THOUT APPRECIATING THAT THE PATNA HIGH COURT JUDGEMENT IN THE CASE OF JAYA BHASKARAN 168 ITR 256 RELIED ON BY THE ASSESSEE, IS DISTINGUISHABLE F ROM THE FACTS OF THE INSTANT CASE, INASMUCH AS CHARGE BY THE SPOUSE/HEIR OF THE DECEASED PARTNER IS ON THE GROSS PROFIT AND NOT ON THE NET P ROFIT OF THE FIRM. ITA NO.8270/MUM/2011 ASSESSMENT YEAR: 2008-09 3 5. IN THE RESULT, APPEAL FILED BY DEPARTMENT IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2012 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 5 TH DECEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),27, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY XVI , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI