PARMES DIAMONDS EXPORTS PRIVATE LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(2), MUMBAI

MA 135/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3244 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 23-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUSUM BA NSAL
• Assessee Lawyers: RAKESH MOHAN

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 135/MUM/2018 ARISING OUT OF ITA NO. 2016 /MUM/2016 ASSESSMENT YEAR 201 2 - 13 PARMES DIAMONDS EXPORTS PRIVATE LIMITED 2205, PANCHRATNA 22 ND FLOOR M. P. MARG, OPERA HOUSE, MUMBAI - 400004 PAN AA ACP2104P V. THE ASSISTANT COMMISSIONER OF INCOME - TAX , CENTRAL CIRCLE - 1(2), OLD CGO BUILDING M K ROAD, MUMBAI - 400020 APPLICANT RESPONDENT APPELLANT BY SHRI RAKESH MOHAN RESPONDENT BY MS. KUSUM BANSAL (DR) DATE OF HEARING : 22 - 02 - 2019 DATE OF PRONOUNCEMENT : 27 - 02 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCEL L ANEOUS APPLICATION IN MA NO. 135/MUM/2018 ARISI NG OUT OF APPEAL IN ITA NO. 2016 /MUM/2016 SEEKING RECTIFICATION OF AN MISTAKE APPARENT F ROM RECORDS IN AN ORDER DATED 21.12 .2017 PASSED BY INCOME - TAX APPELLATE TRIBUNAL , C BENCH, MUMBAI FOR ASSESSMENT YEAR 2012 - 13 . 2. WHEN THIS MISCELLANEOUS APPLICATION WAS CALLED FOR HEARING TODAY, AT THE OUTSET LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER DATED 21.12.2017 PASSED BY ITAT NEEDED TO BE RECALLED AS THE TRIBUNAL OUGHT TO HAVE DELETED THE ENTIRE ADDITION ON ACCOUNT OF ADHOC DISALLOWANCE OF 5% OF VEHICLE EXPENSES, TEA AND SUNDRY EXPENSES CONFIRMED BY LEARNED CIT(A) WHICH LED TO DISALLOWANCE TO THE TUNE OF RS. 1,89, 609/ - , AS AGAINST 15% OF DISALLOWANCE OF VEHICLE EXPENSES, TEA AND SUNDRY EXPENSES MADE BY THE AO , MA NO. 135/MUM/2018 ARISING OUT OF ITA NO. 2016/MUM/2016 2 WHICH WAS MAINLY DUE TO SELF SUPPORTED VOUCHERS SUBMITTED BY THE ASSESSEE AND IN THE LACK OF THIRD PART EVIDENCES/VERIFICATIONS. THE LEARNED CIT(A) HELD THAT THE SE TEA AND SUNDRY EXPENSES WERE MAINLY TOWARDS VEGETABLE, FARSAN, CONSUMPTION OF GAS, GROCERIES ETC AND HENCE ADDITIONS TO THE TUNE OF 5% WAS CONFIRMED AS PERSONAL ELEMENT IN THESE TYPES OF EXPENSES CANNOT BE RULED OUT. THE TRIBUNAL VIDE ITS ORDER DATED 21 .12.2017 REDUCED THE ADDITIONS TO RS. 1,00,000/ - OUT OF RS. 1,82,609/ - SUSTAINED BY LEARNED CIT(A) , KEEPING IN VIEW FACTUAL MATRIX OF THE CASE . THE LEARNED COUNSEL SUBMITTED THAT THE ADDITION S ON ADHOC BASIS CANNOT BE MADE AS THE ASSESSEE IS A COMPANY. THE LEARNED COUNSEL ALSO SUBMITTED THAT THERE ARE DECISIONS OF THE TRIBUNAL WHEREIN ENTIRE ADDITIONS WERE DELETED IN SUCH CASES. SO FAR AS PLEA OF THE ASSESSEE THAT ORDER BEING PRONOUNCED IN THE OPEN COURT BY THE TRIBUNAL DELETED THE ENTIRE ADDITIONS , WAS IMMEDIATELY WITHDRAWN BY LEARNED COUNSEL FOR THE ASSESSEE ON BEING CONFRONTED WITH LOG BOOK WHICH PROVED THAT CONTENTION AS RAI SED BY THE ASSESSEE WAS NOT CORRECT. 3. THE LEARNED DR SUBMITTED THAT IF CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE ARE ACCEPTED, THEN IT WILL LEAD TO REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMITTED. 4. AFTER HEARI NG BOTH THE PARTIES A ND PERUSING THE MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT APPEAL IN ITA NO. 2016/MUM/2016 FILED BY THE ASSESSEE WAS HEARD ON 21.12.2017 . IN THIS CASE, ADHOC DISALLOWANCE OF 15% OF VEHICLE EXPENSES , TEA AND SUNDRY EXPENSES WERE MADE BY THE AO MAINLY ON ACCOUNT OF THE FACT THAT THE ASSESSEE SUBMITTED SELF SUPPORTING VOUCHERS WHICH COULD NOT BE VERIFIED WITH THIRD PARTY EVIDENCE , WHICH DISALLOWANCE STOOD REDUCED TO 5% BY LEARNED CIT(A) BECAUSE PERSONAL ELEMENT IN THESE TYPE OF EXPENSES CANNOT B E RULED OUT . THE ITAT FURTHER REDUCED THE DISALLOWANCE TO RS. 1,00,000/ - OUT OF RS. 1,82,609/ - SUSTAINED BY LEARNED CIT(A). THE REVENUE DID NOT FILE ANY APPEAL AGAINST THE RELIEF GRANTED BY LEARNED CIT(A). THE TRIBUNAL BASED ON FACTUAL MATRIX OF THE CASE, UPHELD DISALLOWANCE TO THE TUNE OF RS. 1,00,000/ - VIDE ORDER DATED 21.12.2107. IN OUR CONSIDERED VIEW, THE ITAT HAS TAKEN A DECISION BASED ON ENTIRE FACTUAL MATRIX OF THE CASE WHICH CANNOT BE FAULTED WITH AND WHAT ASSESSEE VIDE THIS MA NO. 135/MUM/2018 ARISING OUT OF ITA NO. 2016/MUM/2016 3 MA IS SEEKING REVIEW OF THE TRIBUNAL ORDER DATED 21.12.2017 WHICH IS NOT PERMISSIBLE WITHIN LIMITED MANDATE OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961 AS ONLY MISTAKES APPARENT FROM RECORD CAN BE RECTIFIED WITHIN LIMITED MANDATE OF SECTION 254(2) . THUS,T HIS MA STOOD DISMISSED . 4 . THUS, THIS M.A. NO. 135 /MUM/201 8 ARISI NG OUT OF APPEAL IN ITA NO. 2016 /MUM/20 16 FOR AY 2012 - 13 FILED BY THE ASSESSEE IS DISMISSED ORDER PRON OUNCED IN THE OPEN COURT ON 27 .02 .201 9 27 . 02.2019 SD/ - SD/ - ( MAHAVIR SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 27 . 02 .201 9 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI