LITOLIER INTERIOR P. LTD, V. ACIT CIR 5(2),

MA 293/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7292 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON

Judgement Text

1 MA N O.293/M/2011,LITOLIER INTERIOR P. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A BEFORE SHRI R.V. EASWAR, HONBLE PRESIDENT AND SHRI R.K. PANDA, A.M. M.A. NO. 293/MUM/2011 ARISING OUT OF ITA NO. 313/MUM/2010 ASSESSMENT YEAR 2005-06 M/S LITOLIER INTERIOR PRIVATE LIMITED, 106, FREE PRESS HOUSE, NARIMAN POINT, MUMBAI 400 021. PAN AAACL 6987E VS. ACIT, CIRCLE 5(2), 5 TH FLOOR, AAYAKAR BHAWAN, M.K. ROAD, MUMBAI. 20 APPLICANT RESPONDENT APPLICANT BY SHRI PIYUSH CHATURVEDI RESPONDENT BY SHRI P.K.B. MENON DATE OF HEARING 16 . 9 .2011 DATE OF PRONOUNCEMENT PER R.K. PANDA, A.M. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N REQUESTS THE TRIBUNAL TO RECTIFY THE ORDER U/S 254(2) OF THE INC OME TAX ACT, 1961 SINCE REVISED GROUND NO. 6 OF THE APPEAL WHICH WAS ARGUED IN DETAIL AT THE TIME OF HEARING HAS NOT BEEN DECIDED BY THE TRIBUNAL. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING T O GROUND NO. 6 OF THE REVISED GROUNDS OF APPEAL SUBMITTED THAT THE ASSESS EE HAS CHALLENGED THE ORDER OF THE LD. CIT(A) SUSTAINING THE DISALLOWANCE OF ` 85,534/- MADE BY THE A.O. BEING 50% OF REPAIR AND MAINTENANCE CHARGES CLAIMED BY THE ASSESSEE. 2 MA N O.293/M/2011,LITOLIER INTERIOR P. LTD. 2 2.1 REFERRING TO THE COPY OF THE ORDER OF THE TRIBU NAL FOR A.Y. 2003-04 AND 2004-05 THE LD. COUNSEL FOR THE ASSESSEE DREW THE A TTENTION OF THE BENCH TO PAGE 7 & 8 OF THE SAID ORDER AND SUBMITTED THAT THE DELETION OF REPAIRS AND MAINTENANCE EXPENSES BY THE LD. CIT(A) HAS BEEN UPH ELD BY THE TRIBUNAL FOR A.Y. 2003-04. 2.2 REFERRING TO PARA 25 OF THE ORDER OF THE TRIBUN AL, HE SUBMITTED THAT THE DISALLOWANCE OF REPAIR AND MAINTENANCE CHARGES OF ` 2,68,317/- FOR THE A.Y. 2004-05 HAS BEEN DELETED BY THE TRIBUNAL FOLLOWING THE ORDER FOR A.Y. 2003-04. HE SUBMITTED THAT SINCE THE ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL AND IT WAS ARGUED BEFORE THE TRIBUNAL AT THE TIME OF HEARING, THEREFORE, APPROPRIATE ORDER MAY BE PASSED . 3. THE LD. D.R., ON THE OTHER HAND, WHILE OPPOSING THE M.A. FAIRLY CONCEDED THE ABOVE ARGUMENT OF THE LD. COUNSEL FOR THE ASSES SEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH SIDES. AFTER VERIFICATION OF THE LOG BOOK IT WAS SEEN THAT THE L D. COUNSEL HAD INDEED ARGUED THIS GROUND AT LENGTH AT THE TIME OF HEARING. HOWEV ER, THE TRIBUNAL WHILE PASSING THE ORDER HAS NOT CONSIDERED AND ADJUDICATE D THIS GROUND FOR WHICH A MISTAKE APPARENT HAS CREPT IN THE ORDER OF THE TRIB UNAL WHICH NEEDS RECTIFICATION U/S 254(2) OF THE ACT. WE, THEREFORE RECTIFY THE ORDER OF THE TRIBUNAL TO THE EXTENT MENTIONED AS UNDER: PARA 18 OF THE ORDER OF THE TRIBUNAL DT. 27.4.201 1 IS MODIFIED AS UNDER:- GROUND OF APPEAL NO. 6 BY THE ASSESSEE READS AS UN DER:- THE. LD. CIT(A) ERRED IN SUSTAINING THE DISALLOWANC E MADE BY THE A.O. FOR ` 85,534/- BEING THE 50% OF REPAIR & MAINTENANCE CHARGES INCURRED BY THE APPELLANT. 18.1 AFTER HEARING BOTH THE SIDES WE FIND THE A.O. FOLLOWING HIS ORDER FOR A.Y. 2004-05 DISALLOWED AN AMOUNT OF ` 1,71,068/- UNDER THE HEAD REPAIRS AND MAINTENANCE EXPENDITURE. WE FIND 3 MA N O.293/M/2011,LITOLIER INTERIOR P. LTD. 3 THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003-0 4 AND 2004- 05 HAS ALLOWED SUCH EXPENDITURE ON THE GROUND THAT DISALLOWANCE OF 50% OF SUCH EXPENSES IS ONLY ON AD HOC BASIS WITHOUT ANY PARTICULAR REASON. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, W E SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE AD DITION. GROUND OF APPEAL NO. 6 BY THE ASSESSEE IS ACCORDINGLY ALLOWED . 5. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 7.10.2011. SD/- SD/- (R.V. EASWAR) ( R.K. PANDA) PRESIDENT ACCOUNTANT MEM BER MUMBAI, DATED 7.10.2011 RK COPY TOTHE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) - CONCERNED, MUMBAI 3. THE CIT, CONCERNED, MUMBAI 4. THE DR BENCH, A 5. MASTER FILE TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI