ACIT 20(1), MUMBAI V. ALARSIN, MUMBAI

ITA 9116/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78773 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 29-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N JAYENDRAN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 5319/MUM/2011 (ASSESSMENT YEAR: 2008-09) ITA NO. 8942/MUM/2010 (ASSESSMENT YEAR: 2007-08) M/S. ALARSIN A C I T, CRICLE 20(1) C/O. NATVARLAL VEPARI & CO. ORICON HOUSE, 4TH FLOOR 12 K, DUBASH MARG MUMBAI 400023 VS. 6TH FLOOR, PIRAMAL CHAMBERS LALBAUG, PAREL, MUMBAI PAN - AAEFA5667R APPELLANT RESPONDENT ITA NO. 5901/MUM/2011 (ASSESSMENT YEAR: 2008-09) ITA NO. 9116/MUM/2010 (ASSESSMENT YEAR: 2007-08) A C I T, CRICLE 20(1) M/S. ALARSIN 6TH FLOOR, PIRAMAL CHAMBERS LALBAUG, PAREL, MUMBAI VS. C/O. NATVARLAL VEPARI & CO. ORICON HOUSE, 4TH FLOOR 12 K, DUBASH MARG MUMBAI 400023 PAN - AAEFA5667R APPELLANT RESPONDENT ASSESSEE BY: SHRI N. JAYENDRAN REVENUE BY: SHRI MAURYA PRATAP DATE OF HEARING: 22.04.2014 DATE OF PRONOUNCEMENT: 22.04.2014 O R D E R PER D. MANMOHAN, V.P. THESE CROSS APPEALS FILED BY THE ASSESSEE AND THE R EVENUE PERTAIN TO A.Y. 2007-08 AND 2008-09. 2. THE ISSUE INVOLVED IN THE APPEAL FILED BY THE REVEN UE FOR A.Y. 2008-09 AS WELL AS THE APPEALS FILED BY THE ASSESSEE ARE IN TERCONNECTED WHEREAS IN THE APPEAL FILED BY THE REVENUE FOR A.Y. 2007-08 AN ADDITIONAL ISSUE IS ITA NO. 5319+3/MUM/2011 M/S. ALARSIN 2 INVOLVED, I.E. WITH REGARD TO DISALLOWANCE OF TELEP HONE EXPENSES, REPAIRS & MAINTENANCE EXPENSES AND CAR DEPRECIATION IN ADDITI ON TO THE ADDITION ON ACCOUNT OF PROMOTEE SERVICE CHARGES. 3. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE PLACED BEFORE US A COPY OF THE ORDER OF ITAT A BENCH, MU MBAI IN ASSESSEES OWN CASE FOR A.Y. 2006-07 (ITA NO. 3731/MUM/2010 & ITA NO. 3932/MUM/ 2010 DATED 25.10.2011) WHEREIN THE ISSUE CONCERNING PROMTOEE SERVICES CHARGES WAS CONSIDERED BY THE ITAT IN DETAIL AND HE LD THAT THE DISALLOWANCE OF ANY PORTION OF THE SAID EXPENDITURE IS NOT WARRA NTED. IN OTHER WORDS, THE PLEA OF THE ASSESSEE WAS ACCEPTED WHEREAS THE PLEA OF THE REVENUE WAS REJECTED. IN THE INSTANT CASE ALSO THE CIT(A) CONFI RMED A PORTION OF THE DISALLOWANCE ON WHICH THE ASSESSEE PREFERRED AN APP EAL WHEREAS WITH REGARD TO DELETION OF PORTION OF DISALLOWANCE THE REVENUE IS IN APPEAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE LIGH T OF THE AFORECITED DECISION THE ENTIRE CLAIM HAS TO BE CONSIDERED IN FAVOUR OF THE ASSESSEE. 4. THE LEARNED D.R. FAIRLY ADMITTED THAT THE ISSUE STA NDS COVERED BY THE AFORECITED DECISION AND NO FRESH FACTS WERE PLACED BEFORE US TO CONTRADICT THE FINDINGS OF THE ITAT/TO DISTINGUISH THE FACTS IN TH E YEAR UNDER CONSIDERATION. 5. WITH REGARD TO A.Y. 2007-08 GROUND NO. 2 OF THE REV ENUE READS AS UNDER: - 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND IN CIR CUMSTANCES OF THE CASE IN DELETING THE ADDITION MADE BY THE AO OF RS. 1,04,076/- OUT OF TELEPHONE EXPENSES, RS.4,59,304/- OUT OF REPAIR AND MAINTENANCE EXPENSES AND RS.3,42,910/- OUT OF CAR D EPRECIATION. 6. AS COULD BE NOTICED FROM THE ORDER PASSED BY THE CI T(A), THE ASSESSEE ADMITTED THAT FBT PROVISIONS ARE APPLICABLE. SINCE THE ASSESSEE PAID FBT ON THESE EXPENSES, THE CIT(A) CONCLUDED THAT THERE IS NO CASE FOR DISALLOWANCE OF ANY PORTION OF THE EXPENSES. 7. HERE ALSO THE LEARNED D.R. COULD NOT POINT OUT ANY INFIRMITY IN THE ORDER PASSED BY THE CIT(A). 8. ACCORDINGLY, WE HAVE HEARD THE LEARNED D.R. AND THE LEARNED COUNSEL FOR THE ASSESSEE AND CAREFULLY PERUSED THE RECORD. HAVING REGARD TO THE ITA NO. 5319+3/MUM/2011 M/S. ALARSIN 3 CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE D ECISION OF THE ITAT AS WELL AS THE FACT THAT THE ASSESSEE PAID FBT ON THE EXPEN DITURE INCURRED, WHICH IS SUPPOSED TO BE FOR THE BENEFIT OF THE PARTNERS, WE ARE OF THE VIEW THAT NO DISALLOWANCE IS CALLED FOR EITHER UNDER THE HEAD P ROMOTEE SERVICE CHARGES OR WITH REGARD TO PERSONAL NATURE OF EXPENDITURE SU CH AS TELEPHONE EXPENSES, REPAIRS AND MAINTENANCE EXPENSES, ETC. WE , THEREFORE, DISMISS THE APPEALS FILED THE REVENUE AND ALLOW THE APPEALS FIL ED BY THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND APRIL, 2014. SD/- SD/- (N.K. BILLAIYA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 22 ND APRIL, 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 31, MUMBAI 4. THE CIT XI, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.