INDOCO REMIDIES LTD, V. ACIT CEN CIR 34,

MA 90/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0678 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Assessee Lawyers: PANKAJ JAIN
• Keywords: Gift
• Section: 37(1); 37

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI .. , !'# $ $ $ $ % &' , ( !'# !) BEFORE SHRI P.M. JAGTAP, AM AND SHRI. SHRI AMIT SHU KA, JM *$*$ $'+ 90 /MUM/2013 ARISING OUT OF ITA NO. 7373/MUM/2011 ( (+ . $/. (+ . $/. (+ . $/. (+ . $/. / / / / ASSESSMENT YEAR : 2008-09) M/S INDOCO REMEDIES LTD., 166, C.S.T. ROAD, SANTACRUZ (E), MUMBAI 400 020. + + + + / VS. ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 34, MUMBAI. #1 !./ PAN : AAACJ 0380C ( 12 / // / APPELLANT ) .. ( 3412 / RESPONDENT ) 12 5 6 ! / APPLICANT BY : SHRI JITENDRA JAIN & SHRI PANKAJ JAIN 3412 5 6 ! / RESPONDENT BY : SHRI A.K. KARDAM !+$ 5 / // / DATE OF HEARING : 7 -6-13 78/ 5 / DATE OF PRONOUNCEMENT : 7-6-13 '& / O R D E R PER P.M. JAGTAP, A.M . : BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 23-10-2012 PASSED IN ITA NO. 7373/MUM/2011 FOR A.Y. 2008-09. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED IN THE PRESENT MIS C. APPLICATION FILED BY THE ASSESSEE AND FURTHER REITERATED BY THE LD. COUNSEL FOR THE A SSESSEE AT THE TIME OF HEARING BEFORE US, THERE ARE CERTAIN MISTAKES IN THE ORDER OF THE TRIB UNAL INASMUCH AS THE ISSUE RELATING TO MA 90/MUM/2013 2 THE DISALLOWANCE OUT OF PERSONALIZED SALES PROMOTIO N EXPENSES WAS DECIDED BY THE TRIBUNAL SUSTAINING THE SAME TO THE EXTENT OF 25% F OLLOWING THE EARLIER YEARS ORDER OVERLOOKING THAT THIS ISSUE WAS NOT INVOLVED IN THE YEAR UNDER CONSIDERATION. SIMILARLY, THE DISALLOWANCE OUT OF EXPENSES INCURRED ON GIFTS TO DOCTORS WAS SUSTAINED BY THE TRIBUNAL TO THE EXTENT OF 15% FOLLOWING THE ORDERS OF THE TRIBUNAL FOR THE EARLIER YEARS ON ACCOUNT OF UNVERIFIABLE AND UNVOUCHED ELEMENT OV ERLOOKING THE FACT THAT THE DISALLOWANCE ON THIS ISSUE WAS MADE BY THE A.O. IN THE YEAR UNDER CONSIDERATION I.E A.Y. 2008-09 BY APPLYING EXPLANATION TO SECTION 37( 1) OF THE ACT AND NOT ON THE GROUND OF INVOLVEMENT OF ANY UNVERIFIABLE AND UNVOU CHED ELEMENT. SINCE THESE MISTAKES OCCURRED IN THE ORDER OF THE TRIBUNAL ARE APPARENT FROM RECORD AND THE LD. D.R. HAS ALSO AGREED WITH THE SAME, WE RECTIFY THE SAID MISTAKES BY DELETING LAST 8 (EIGHT) LINES OF THE ORDER OF THE TRIBUNAL OF PARA 10 AS AP PEARING ON PAGE 7 AND SUBSTITUTING THE SAME IN THE FOLLOWING MANNER: AS THE ISSUE INVOLVED IN THE YEAR UNDER CONSIDERAT ION AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO ASSESSMENT YE ARS 2001-02 TO 2004-05, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL FOR T HE SAID YEARS AND HOLD THAT THE EXPENSES INCURRED BY THE ASSESSEE ON GIFTS TO DOCTO RS CANNOT BE DISALLOWED BY INVOKING EXPLANATION TO SECTION 37(1) OF THE ACT. WE THEREF ORE DIRECT THE A.O. TO CONSIDER THE ALLOWABILITY OF THE SAID EXPENSES UNDER THE PROVISI ONS OF SECTION 37 OF THE ACT AFTER NECESSARY VERIFICATION. GROUND NO. 1 OF REVENUES APPEAL IS ACCORDINGLY DISMISSED. 3. AS A RESULT OF THE ABOVE RECTIFICATION, PARA 13 OF THE TRIBUNALS ORDER ALSO STANDS MODIFIED TO THE EFFECT THAT THE APPEAL OF THE REVEN UE FOR A.Y. 2008-09 IS DISMISSED. 4. IN THE RESULT, THE MISS. APPLICATION FI LED BY THE ASSESSEE IS ALLOWED. 9 : (+ .9 *$*$ $'+ #$ ; 5 <= ORDER PRONOUNCED IN THE OPEN COURT ON 7-6-13. . '& 5 78/ >'+: 7-6-13 8 5 SD/- SD/- ( AMIT SHUKLA ) ( P.M. JAGTAP ) !'# / JUDICIAL MEMBER ( !'# / ACCOUNTANT MEMBER MUMBAI ; >'+ DATED 07 / 06/2013 MA 90/MUM/2013 3 $.(+.!./ RK , SR. PS '& 5 3(%* K*/ '& 5 3(%* K*/ '& 5 3(%* K*/ '& 5 3(%* K*// COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. 3412 / THE RESPONDENT. 3. L () / THE CIT(A)- 41, MUMBAI 4. L / CIT C-III, MUMBAI 5. *$O 3((+ , , / DR, ITAT, MUMBAI I BENCH 6. P. Q / GUARD FILE. '&+! '&+! '&+! '&+! / BY ORDER, !4* 3( //TRUE COPY// R R R R/ // /!< !< !< !< ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI