ASST CIT 10(2), V. RELAGISTICS INDIA P.LTD,

MA 368/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0064 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND SAXENA
• Keywords: Business expenditure
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P M JAGTAP , AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO. 368/MUM/2012 ARISING OUT OF ITA NO.2272/MUM/2010 (ASST YEAR 2005-06 ) THEASST COMMR OF INCOME TAX 10(2), MUMBAI VS M/S RELOGISTICS INDIA P LTD OFF NO.01 CASABLANCA SECTOR 11 BELAPUR NAVI MUMBAI 400 005 (APPLICANT) (RESPONDENT) PAN NO. AAACR3050J ASSESSEE BY SH ARVIND SAXENA REVENUE BY SH DIPAK KUMAR SINHA DT.OF HEARING 1 ST FEB 2013 DT OF PRONOUNCEMENT 1ST FEB 2013 ORDER PER VIJAY PAL RAO, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION BY THE REVENUE IS D IRECTED AGAINST THE ORDER DATED 28.12.2011 OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2005-06 WHEREBY THE APPEAL OF THE REVENUE WAS DISPOSED OFF. 2 THE GRIEVANCE OF THE REVENUE AS STATED IN THE MIS CELLANEOUS APPLICATION IS THAT WHILE DECIDING THE APPEAL, THE TRIBUNAL HAS NO T ADJUDICATED THE GROUND NOS 2 & 3 AND THEREFORE, THERE IS AN APPARENT MISTAKE ON RE CORD WHICH REQUIRES TO BE RECTIFIED. 3 WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. IN THE APPEAL FIL ED BY THE REVENUE, THE FOLLOWING GROUNDS WERE RAISED: MA 368/M/2012 . 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT(A) ERRED IN NOT SUSTAINING THE ACTION OF THE ASSESSING OFFICER IN ENHANCING THE GROSS PROFIT BY ESTIMATING AT 8%, IN SPITE OF THE FA CT THAT OPPORTUNITY WAS GRANTED TO ASSESSEE AND ASSESSEE HAD FAILED TO SUBM IT ANY EXPLANATION AS TO WHY GROSS PROFIT SHOULD NOT BE CONSIDERED AT 8% OF TOT AL RECEIPTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFI CER OF THE AMOUNT BEING INTEREST PAID ON BORROWED CAPITAL BY NOT APPRECIATING THE FACT THAT IN THE ABSENCE OF ANY EVIDENCE TO OTHERWISE PROVE THE OTHE R DEBTS AS SHOWN BY THE ASSESSEE COMPANY. IT IS BE ASSUMED THAT THE MONEY B ORROWED ON. INTEREST HAS BEEN UTILIZED BY THE ASSESSEE FOR GIVING INTERES T FREE ADVANCES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ID. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFI CER OF 1/5TH OF PERSONAL EXPENSES DEBITED TO THE P&L A/C, ON THE BASIS THAT SINCE THE ASSESSEE WAS A COMPANY, THERE COULD NOT HAVE BEEN ANY ELEMENT OF P ERSONAL USE AND AS THE EXPENSES WERE INCURRED TOWARDS TRAVELLING AND CON VEYANCE OF EMPLOYEES IT IS BUSINESS EXPENDITURE. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE A BOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4 AS IT IS CLEAR FROM THE IMPUGNED ORDER OF THE TRI BUNAL THAT THE GROUND NOS. 2 & 3 ARE LEFT UN-ADJUDICATED WHILE DISPOSING THE APPEA L OF THE REVENUE VIDE ORDER DATED 20.12.2011. HENCE, AN APPARENT MISTAKE HAS C REPT IN THE IMPUGNED ORDER OF THE TRIBUNAL TO THE EXTENT OF NON ADJUDICATION OF T HE GROUND NOS 2 & 3. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE MISTAKE APPARENT ON RECORD FOR NON ADJUDICATION OF GROUND NOS 2 & 3 IS REQUIRED TO BE RECTIFIED U/S 254(2) OF THE I T ACT. ACCORDINGLY, WE RECALL THE IMPUGNED ORDER DATED 28. 12.2011 FOR THE LIMITED PURPOSE OF ADJUDICATION OF GROUND NOS 2 &3 AND THE APPEAL O F THE REVENUE IS DIRECTED TO BE LISTED FOR HEARING ON THESE GROUNDS IN THE NORMAL C OURSE. 4 THE REGISTRY IS DIRECTED TO FIX THE APPEAL ACCORD INGLY FOR HEARING. MA 368/M/2012 . 3 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS ALLOWED. ORDER PRONOUNCEMENT IN THE OPEN COURT ON THIS 1 ST DAY OF FEB 2013 SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 1ST FEB 2013 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI