DCIT, CHENNAI V. Akshaya Pvt Ltd., CHENNAI

MA 60/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5860 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 28-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: S SRIDHAR
• Keywords: Rectification of order

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI ... , . , %& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MISCELLANEOUS PETITION NO.60/MDS/2017 IN I.T.A.NO. 2114/MDS/2015 ( / ASSESSMENT YEAR : 2010-11) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE- I(1), CHENNAI VS M/S. AKSHAYA PVT. LTD., G SQUARE, 46, RAJIV GANDHI SALAI, KANDANCHAVADI, CHENNAI 600 096 PAN: AAFCA1708D (PETITIONER) ( / RESPONDENT) APPLICANT BY : SMT. S. VIJAYAPRABHA, JCIT /RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE /DATE OF HEARING : 13.10.2017 /DATE OF PRONOUNCEMENT : 23.10.2017 / O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER: THE MISCELLANEOUS PETITION IS FILED BY THE REVENUE PRAYING FOR RECTIFICATION OF MISTAKE APPARENT ON RECORD BY RECALLING THE ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO. 2114/MDS/2015 DATED 24.08.2016. 2. THE REVENUE HAS MADE THE FOLLOWING SUBMISSION FO R RECTIFYING THE MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 24.08.2016 IN ITA NO.2114/MDS/2015 FOR THE ASSESSMENT YEAR 201 0-11:- 2 MP NO.60/MDS/2017 1. IT IS HUMBLY SUBMITTED THAT THE OBSERVATION OF THE HONBLE ITAT IN THE ABOVE ORDER THAT THE REVENUE HAS ACCEPT ED THE DECISION OF LD.CIT(A) IN THE ISSUE OF DISALLOWANCE U/S.40A(2)(B) IN THE RELIED YEAR I.E. AY 2009-10 IS INCORRECT. 2. THE LD.CIT(A) RELYING ON THE DECISION IN THE ASS ESSEES CASE FOR AY 2009-10 BY LD.CIT(A), CENTRAL-I, CHENNAI DAT ED 31.03.2014 DELETED THE DISALLOWANCE U/S.40A(2)(B). E. THE REVENUES APPEAL BEFORE THE HONBLE ITAT, CH ENNAI ON THIS ISSUE WAS DECIDED IN ITA NO.1840/MDS/2014 DATE D 19.06.2015 FOR AY 2009-10, IN THE ASSESSEES OWN CA SE, WHEREIN THE HONBLE ITAT HAS REMITTED BACK THE IMPUGNED ISS UE TO FILES OF AO TO RE-EXAMINE THE ISSUE AFRESH IN THE LIGHT O F AGREEMENTS, NATURE OF BUILDING AND FACILITIES AVAILABLE THEREON AFTER REASONABLE OPPORTUNITY TO THE ASSESSEE. 4. IT IS RESPECTFULLY SUBMITTED THAT THE HONBLE TR IBUNAL MAY BE PLEASED TO REMIT THE IMPUGNED ISSUE FOR FRESH VERIF ICATION IN RESPECT OF AY 2010-11 ALSO, FOLLOWING THE OWN DECIS ION FOR AY 2009-10 IN ITA NO.1840/MDS/2014 DATED 19.06.2015. 3. THE LD.AR COULD NOT CONTROVERT TO THE SUBMISSIO N OF THE LD. REVENUE AUTHORITIES. 4. AFTER HEARING BOTH SIDES, WE FIND MERIT IN THE S UBMISSION OF THE LD.DCIT IN THE MISCELLANEOUS PETITION DATED 28. 02.2017. THIS BENCH OF THE TRIBUNAL BY OVERSIGHT HAD HELD THAT TH E LD.CIT(A) HAD FOLLOWED THE ORDER OF HIS PREDECESSOR DATED 31.03.2 014 FOR ALLOWING THE APPEAL OF THE ASSESSEE IN ITS FAVOUR. HOWEVER PARA 5 3 MP NO.60/MDS/2017 OF THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009-10 IN ITA NO.1840/MDS/2014, VI DE ORDER DATED 19.06.2015, THE ISSUE HAS BEEN DECIDED AS FOL LOWS: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE MANAGING DIRECTOR LET OUT A PORTION OF THE BUILDING TO THE ASSESSEE-COMPANY @ RS.83/- PER SQ.FT. HOWEVER, THE VERY SAME BUILDING WAS LET OUT TO M/S. HOME SOLUTIONS RETAIL INDIA PVT. LTD. @ 70/- PER SQ.FT. THE ASSESSING OFFICER FOUND THAT THE PAYMENT MADE BY THE ASSESSEE TO THE MANAGING DIRECTOR IS VE RY HIGH WHEN COMPARED TO PAYMENT RECEIVED BY THE VERY SAME MANAG ING DIRECTOR FROM THIRD PARTY. THE ASSESSEE CLAIMS THA T WHAT WAS LET OUT TO ASSESSEE-COMPANY IS INCLUSIVE OF CAFETERIA/G ARDENS AND OTHER INTERIOR DECORATIONS. HOWEVER, COPIES OF THE AGREEMENTS ARE NOT AVAILABLE BEFORE THIS TRIBUNAL. THEREFORE, THIS TRIBUNAL IS UNABLE TO EXAMINE THE NATURE OF THE BUILDING WHI CH WAS LET OUT TO THE ASSESSEE-COMPANY AND M/S. HOME SOLUTIONS RET AIL INDIA PVT. LTD. IN THE ABSENCE OF ANY MATERIAL ON RECORD, THIS TRIBUNAL IS UNABLE TO EXPRESS ANY OPINION ON THE MATTER. AC CORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND T HE ENTIRE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL REEXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE AGREEMENTS, THE NATURE OF THE BUILDING AND THE FACILITIES AVAILABLE THEREON, THAT MAY BE FILED BY THE ASSESSE E AND THEREAFTER DECIDE THE MATTER IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE . THEREFORE IT IS EVIDENT THAT THE TRIBUNAL HAS REMIT TED BACK THE MATTER TO THE FILE OF LD.AO IN ORDER TO RE-EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE AGREEMENTS, THE NATURE OF THE B UILDING AND THE FACILITIES THEREON. HENCE IT IS CLEAR THAT THERE I S A MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 24.08.2016 WHICH IS APP ARENT ON 4 MP NO.60/MDS/2017 RECORD. THEREFORE THE SAME IS HEREBY RECTIFIED AND THE ISSUE IS REMITTED BACK TO THE FILE OF LD.AO WITH SIMILAR DIR ECTION RENDERED IN THE DECISION OF THE TRIBUNAL DATED 19.06.2015 IN IT A NO.1840/MDS/2014. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON THE 23 RD OCTOBER, 2017 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) /ACCOUNTANT MEMBER /CHENNAI, ! /DATED 23 RD OCTOBER, 2017 RSR . $%&' ()& /COPY TO: 1. APPLICANT 2. RESPONDENT 3. * ( ('% )/CIT(A) 4. * /CIT 5. &,- . /DR 6. -/ % /GF.