BHARAT BRIGHT BARS P.LTD, MUMBAI V. INCOME TAX OFFICER 5(1)(2), MUMBAI

MA 89/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7085 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 90; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM M .A. NO S . 89, 90 & 91/MUM/2018 (ARISING OUT OF ITA NO S . 1283, 1282 & 1284/MUM/2017) ( ASSESSMENT YEAR S : 2009 - 10, 2010 - 11 & 2011 - 12 ) M/S. BHARAT BRIGHT BARS PVT. LT D. 4, 1 ST FLOOR, SARASWATI BHAVAN, LAMINGTON ROAD, MUMBAI - 400 007 VS. ITO - 5(1)(2), MUMBAI PAN/GIR NO. AACCM 2937 R ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI BHARAT KUMAR RESPONDENT BY : SHRI ASHISH KUMAR DATE OF HEARING : 25.05.2018 DATE OF PRONOUNCEMENT : 01.08 .2018 O R D E R PER S HAMIM YAHYA, A. M.: TH ESE ARE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AGAINST THE COMMON ORDER PASSED BY THE TRIBUNAL IN ITA NO S . 1282 TO 1284/MUM/2017 FOR ASSESSMENT YEARS 2009 - 10 TO 2011 - 12 VIDE ORDER DATED 03.07.2017. 2. THE COMMON ISSUE RAISED IN THE MISCELLANEOUS APPLICATIONS READS AS UNDER: 1. THE APPLICANT HEREIN RECEIVED THE ORDER THIS COMMON FOR THE A Y 2009 - 10,2010 - 11 AND A Y 2011 - 12 DATED 03/07/2017 RECEIVED COPY OF ORDER IS A TTACHED HEREWITH AND MARKED AS ANNEXUR E - A. 2. THE HONORABLE TRIBUNAL PARTLY ALLOWED APPEAL OF THE ASSESSEE. 3. IN THIS WHOLE APPEAL THERE WAS TWO ISSUE ONE WAS BOGUS PURCHASES AND OTHER WAS DIRECTOR REMUNERATION. 4. LD. ASSESSING OFFICER RECEIVED THIS OR DER AND SEND A NOTICE TO ASSESSEE AND NOTICE AS MARKED AT ANNEXUR E - B. 2 M/ S. BHARAT BRIGHT BARS PVT. LTD. DISALLOW THE DIRECTORS REMUNERATION. IT IS NOT THE CASE THAT THE REMUNERATION IS BOGUS, IT HAS BEEN SOLELY DISALLOWED AS IN THE OPINION OF THE REVENUE AUTHORITIES THERE WAS NO JUSTIFICA TION FOR SUCH AN INCREASE IN THE SALARY AS THEY WERE NOT CONVINCED THAT THE INCREASE IN TURNOVER IS ONLY BECAUSE OF EFFORTS OF THE DIRECTOR, 1 FIND THAT REVENUE AUTHORITIES IN THIS CASE ARE TRYING TO ENTER INTO THE SHOES OF THE BUSINESSMAN, WHICH IS NOT PE RMISSIBLE. ACCORDINGLY I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 6. FROM ABOVE FINDING OF HONORABLE TRIBUNAL DELETED DIRECTOR REMUNERATION ADDITION SAME WE PRAYED TO LD. A.O. THAT TRIBUNA L DELETED REMUNERATION ADDITION MADE BY YOUR OFFICE AND GIVE THE EFFECT THE SAME BUT HE STATED THAT TRIBUNAL MENTION THAT ORDER IS SET A SIDE AND HE TAKEN A VIEW THAT ISSUE REQUIRE TO ADJUDICATE FRESH AND HE ISSUED NOTICE FOR SAME. SUBMISSION: 7. EVEN THO UGH THE ORDER PASSED BY THE HON'BLE BENCH WAS SPEAKING ORDER, BUT FOR SATISFACTION OF A.O. AND TO REMOVE DISPUTE, WE PRAY THAT KINDLY ISSUE CLARIFICATION ON FINDING OF ITAT ORDER THAT TRIBUNAL DELETED THE ADDITION ON ACCOUNT OF REMUNERATION. 8. WE PRAYING THAT APPELLANT HAVE NO ISSUE ON SAID ORDER BUT WE NEED TO CLARIFY TO A.O. THAT TRIBUNAL HAS BEEN DELETED ADDITION. 4. IN THE PREMISES AFORESAID, THE APPLICANT PRAYS THAT: - D. KINDLY ISSUE A CLARIFICATION SO THAT DISPUTE BETWEEN AO AND ASSESSEE CAN BE END. 3 . I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTED THAT THE ORDER OF THE ITAT WAS VERY CLEAR ON THE ISSUE OF DIRECTORS REMUNERATION AND THE ITAT HAD DIRECTED FOR A DELETION OF THE ADDITION. IN THIS VIEW OF THE MATTER, I AM OF THE CONSIDERED OPINION THAT NO CLARIFICATION IS REQUIRED IN THIS REGARD. IF AFTER AN ORDER BY THE ITAT, THE ASSESSING OFFICER CHOOSES NOT TO FOLLOW THE SAME, IN MY CONSIDERED OPINION, THE REMEDY DOES NOT LIE IN FILING T HE MISCELLANEOUS APPLICATIONS BEFORE THE ITAT AS ABOVE. HENCE, THESE M ISCELLANEOUS APPLICATIONS STAND DISMISSED. 3 M/ S. BHARAT BRIGHT BARS PVT. LTD. 5. IN THE RESULT, THE SE MISCELLANEOUS APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.08.2018 SD/ - (S HAMIM YAHYA) A CCOUNTANT MEMBER MUMBAI ; DATED : 01.8.2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI