DCIT 2(2), V. KHIMJI POONJA FREIGHT FORWARDERS P LTD,

MA 159/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3844 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 10-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Assessee Lawyers: BIREN GABBHAWALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI R.S. PADVEKAR, J.M. AND SHRI A.L. GEHLO T, A.M. M.A. NO.159/M/10 (IN ITA NO. 2477/M/2007 ASSESSMENT YEAR: 2004-05) DY. COMMISSIONER OF INCOME-TAX, APPLICANT 2(2), ROOM NO. 545, AAYAKAR BHAVAN, MUMBAI 400 020 VS. M/S KHIMJI POONJA FREIGHT FORWARDERS P. LTD., RESP ONDENT 19-21, DALAL STREET, FORT, MUMBAI 400 001 APPELLANT BY : MR. VIRENDRA OJHA RESPONDENT BY : MR. BIREN GABBHAWALA ORDER PER A.L. GEHLOT, A.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARISES OUT OF THE ORDER OF ITAT A-1 BENCH, MUMBAI BENCHES, M UMBAI, IN APPEAL ITA NOS. 2477 & 3668/MUM/2007 DATED 25 TH MARCH, 2009. 2. IT HAS BEEN POINTED OUT IN MA THAT IN AY 2003-04 50% OF MUKADAMI EXPENSES DISALLOWED BY THE AO ON ACCOUNT O F SELF-MADE VOUCHERS. THE CIT(A) RESTRICTED IT AT 10% AND ON AP PEAL FILED BY THE REVENUE BEFORE ITAT, THE ITAT RESTRICTED IT AT 20% WHEREAS ON SIMILAR FACTS IN THE YEAR UNDER CONSIDERATION, THE CIT(A) FOLLOWED AY 2003-04 AND RESTRICTED TO 10%. THUS, THE ITAT IN 2004-05 WAS WRONGLY RESTRICTED 10% INSTEAD OF 20%. AFTER HEARIN G LD. LEARNED REPRESENTATIVES OF THE PARTIES, WE FIND THAT IMPUG NED ORDER FOR AY 2004-05 IS DATED 25.03.2009 WHEREAS THE ORDER OF IT AT FOR 2003-04 IS DATED 26.03.2009, THEREFORE, IT IS THE WRONG SUB MISSION OF THE REVENUE THAT THE ORDER OF ITAT FOR 2003-04 HAS NOT BEEN FOLLOWED IN AY 2004-05, OTHER WISE ALSO, WE FIND THAT IN AY 200 4-05 THE ITAT HAS GIVEN INDEPENDENT FINDING THAT IT IS A CASE OF ESTIMATION AND IN CASE OF ESTIMATION SOME GUESS WORK IS THERE. EACH Y EAR IS AN M.A. NO. 159/M/10 M/S KHIMJI POONJA FREIGHT FORWARDERS P. LTD. 2 INDEPENDENT YEAR FOR THE PURPOSE OF INCOME TAX, WE, THEREFORE, DO NOT FIND ANY SUBSTANCE IN THIS CONTENTION OF THE RE VENUE. SIMILARLY, IN PARA 5 OF MA, IT WAS POINTED OUT THAT SIMILAR FA CTS IN ANOTHER CASE DISALLOWABLE IS RESTRICTED TO 25%. IN THE LIGH T OF ABOVE DISCUSSION, WE DO NOT FIND ANY SUBSTANCE IN THIS CO NTENTION ALSO, THEREFORE, THE SAME IS DISMISSED. THE REVENUE FAILE D TO POINTED OUT ANY APPARENT MISTAKE IN THE ORDER OF ITAT, WHICH CA N BE RECTIFIED U/S 254(2). WE, THEREFORE, REJECT THE MA OF THE REV ENUE. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. PRONOUNCED ON THIS 4 TH DAY OF JUNE, 2010 SD/- SD/- (R.S. PADVEKAR) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 4 TH JUNE, 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV M.A. NO. 159/M/10 M/S KHIMJI POONJA FREIGHT FORWARDERS P. LTD. 3 S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 4.6.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 9.6.10 SR.P.S/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.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER