FIRDAUS JEHANGIR DADABHOY, V. ITO WD 16(1)(1),

MA 609/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0092 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 30-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: HRISHIKESH PUROHIT
• Keywords: Business income
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, F MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 609/MUM/2011 ARISING OUT OF : ITA NO.6040/M/2006 ASSESSMENT YEAR : 2003-04 FIRDAUS JEHANGIR DADABHOY B-603 SHALIMAR APARTMENT COMBALLA HILL ROAD MUMBAI-400 036. PAN NO.: AENPD 3721 N THE INCOME TAX OFFICER WARD 16(1)(1) MATRU MANDIR, TARDEO ROAD MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI HRISHIKESH PUROHIT RESPONDENT BY : SHRI O.P. MEENA DATE OF HEARING : 08.02.2013 DATE OF PRONOUNCEMENT : 08.02.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE REQUESTING FOR AMENDMENT OF THE ORDER DATED 18.12.2 009 OF THE TRIBUNAL IN ITA NO.6040/M/06 FOR THE ASSESSMENT YEAR 2003-04. T HE ASSESSEE IN THE MISCELLANEOUS APPLICATION HAS POINTED OUT THAT THE TRIBUNAL HAS WRONGLY REFERRED TO THE ASSESSEE AS PROPERTY DEALER. THE AS SESSEE WAS NOT PROPERTY DEALER NOR HAD ANY INCOME FROM PROPERTY DEALINGS. I T HAS ALSO BEEN SUBMITTED THAT THE TRIBUNAL HAD WRONGLY MENTIONED THAT THE AU THORITIES BELOW HAD GIVEN A FINDING THAT NO BUSINESS ACTIVITY HAD BEEN CARRIE D OUT BY THE ASSESSEE WHICH WAS CONTRARY TO THE FINDING OF THE AUTHORITIES. IT IS, THEREFORE, REQUESTED THAT THE ORDER MAY BE AMENDED. 2. WE HAVE HEARD BOTH PARTIES, PERUSED THE RECORDS CONSIDERED THE MATTER CAREFULLY. THE ASSESSEE HAS FILED THE MISCEL LANEOUS APPLICATION POINTING OUT CERTAIN APPARENT MISTAKES IN THE ORDER OF THE T RIBUNAL. WE FIND FROM THE MA NO.609/M/11 ARISING OU T OF ITA NO.6040/M/06 A.Y: 03-04 2 ORDER OF AO THAT THE AO HAD ACCEPTED THAT THE ASSES SEE WAS DOING BUSINESS IN THE NAME OF MODESTA SYSTEMS , AND INCOME FROM WH ICH HAD BEEN CONSIDERED AS BUSINESS INCOME. THE AO, HOWEVER DISA LLOWED THE EXPENSES AND HAD CONSIDERED THE GROSS PROFIT RATE AS NET PRO FIT. THE AO HAD ALSO CONSIDERED INTEREST INCOME AS INCOME FROM OTHER SOU RCES AND AFTER EXCLUDING INTEREST INCOME THERE WAS LOSS AND, THEREFORE, NO D EDUCTION UNDER SECTION 80IB WAS ALLOWED. CIT(A) UPHELD THE VIEW OF THE AO OF TREATING INTEREST INCOME AS INCOME FROM OTHER SOURCES AND DISALLOWANC E OF DEDUCTION UNDER SECTION 80IB. CIT(A) IN PARA-1 OF THE ORDER ALSO ME NTIONED THAT THE ASSESSEE WAS CARRYING ON BUSINESS OF MODULAR FURNITURE UNDER THE NAME AND STYLE OF MODESTA SYSTEMS, THEREFORE, THE OBSERVATION OF THE TRIBUNAL IN THE 2 ND SENTENCE OF PARA-5 THAT BOTH LOWER AUTHORITIES HAD GIVEN A CATEGORICAL FINDING THAT NO BUSINESS ACTIVITY HAD BEEN CARRIED ON BY TH E ASSESSEE IS NOT CORRECT. THERE IS THUS AN APPARENT MISTAKE. WE, THEREFORE, D ELETE THE SECOND SENTENCE IN PARA-5 OF THE ORDER OF THE TRIBUNAL IN WHICH IT HAS BEEN MENTIONED THAT LOWER AUTHORITIES HAD GIVEN A FINDING THAT NO BUSIN ESS ACTIVITY HAD BEEN CARRIED ON BY THE ASSESSEE. FURTHER, THE ASSESSEE H AD SHOWN ONLY INCOME FROM HOUSE PROPERTY. THE ASSESSEE HAD NOT SHOWN ANY INCOME FROM PROPERTY DEALINGS. HOWEVER THE TRIBUNAL IN PARA -2 HAS REFER RED THE ASSESSEE AS A PROPERTY DEALER WHICH OBVIOUSLY IS AN APPARENT MIST AKE. WE, THEREFORE, AMEND THE ORDER AND DELETE THE WORDS A PROPERTY DE ALER APPEARING IN THE 1 ST LINE OF PARA-2 OF THE ORDER OF THE TRIBUNAL. 3. IN THE RESULT THE MISCELLANEOUS APPLICATION IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8.2.2013. SD/- SD/- ( DINESH KUMAR AGARWAL) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 8.2.2013. JV. MA NO.609/M/11 ARISING OU T OF ITA NO.6040/M/06 A.Y: 03-04 3 COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.