ALUMILITE ARCHITECTURAL PRIVATE LIMITED , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 1(1), MUMBAI

MA 902/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6763 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.902/M/2017 (ARISING OUT OF ITA NO.6753/M/2014) ASSESSMENT YEAR: 2010-11 M/S. ALUMILITE ARCHITECTURAL PVT. LTD., 5 TH FLOOR, DHIRAJ CHAMBERS, HAZARIMAL SOMANI MARG, FORT, MUMBAI 400 001 PAN: AABCA 0567C VS. DEPUTY COMMISSIONER OF INCOME TAX-1(1), ROOM NO.533, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI HITEN VASANT, A.R. REVENUE BY : MS. ARJU GARODIA, D.R. DATE OF HEARING : 01.06.2018 DATE OF PRONOUNCEMENT : 19.06.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEE KS THE RECTIFICATION OF ORDER DATED 28.09.2017 PASSED IN IT A NO.6753/M/2014 FOR A.Y. 2010-11. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT THE S AID ORDER CONTAINS SOME APPARENT AND PRIMA FACIE MISTAK ES AS REGARDS THE FACTS WHICH NEED TO BE RECTIFIED. THE LD. A.R. STATED THAT THE ACTUAL PAYMENT DURING THE YEAR WAS RS.16,07,870/- TO MR. DINESH OJHA, SITE IN-CHARGE FOR PAYMENT TO LABOURERS AND INCURRING OTHER EXPENSES AT THE SI TE WHEREAS THE TRIBUNAL WHILE PASSING THE ORDER HAS MISTOOK TH E SAME AT MA NO.902/M/2017 (ARISING OUT OF ITA NO.6753/M/2014) M/S. ALUMILITE ARCHITECTURAL PVT. LTD. 2 RS.30,09,259/- WHICH IN FACT RELATED TO PRECEDING P REVIOUS YEAR THAN THE YEAR UNDER CONSIDERATION. THE LD. A.R . CONTENDED THAT WHILE DECIDING THE APPEAL THE HONBL E TRIBUNAL RESTRICTED THE DISALLOWANCE TO RS.20 LAKHS AND PART LY ALLOWED THE GROUND BY MISTAKING THE TOTAL PAYMENT AT RS.30,09 ,259/- WHEREAS AS A MATTER OF FACT THE ACTUAL PAYMENT WAS RS.16,07,870/- AND PARTLY ALLOWING THE APPEAL BY DI RECTING THE ADDITION AT RS. 20.00 LACS IS AN INADVERTENT ERROR. ACCORDINGLY, THE LD. A.R. PRAYED THAT THE SAID ORDER PASSED BY THE TRIBUNAL NEEDS TO BE RECTIFIED AND PRAYED THAT THE SAME MAY BE RECTIFIED ACCORDINGLY. 3. THE LD. D.R., ON THE OTHER HAND, FAIRLY AGREED TO THE MISTAKE IN THE SAID ORDER AND LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE IM PUGNED ORDER. WE FIND FROM THE PERUSAL OF THE ORDER THAT THE TOTAL PAYMENTS MADE TO MR. DINESH OJHA FOR FURTHER PAYMEN T TO LABOUR AND FOR SITE EXPENSES WAS TAKEN AT RS.30,09,259 /- WHEREAS AS A MATTER OF FACT ONLY RS.16,07,870/- WAS PAID DURING THE YEAR. THE SAID MISTAKE HAS OCCURRED BEC AUSE WHILE PASSING THE ORDER THE SAID FIGURE WAS WRONGLY TAKEN AND THUS THE ADDITION PARTLY SUSTAINED AT RS.20 LAKHS WAS WRO NG AS BEING APPARENT ON THE FACE OF THE ORDER. WE ARE, TH EREFORE, OF THE CONSIDERED VIEW THAT THIS IS A MISTAKE IN THE S AID ORDER MA NO.902/M/2017 (ARISING OUT OF ITA NO.6753/M/2014) M/S. ALUMILITE ARCHITECTURAL PVT. LTD. 3 WHICH NEEDS TO BE RECTIFIED AND IS BEING RECTIFIED IN THE FOLLOWING PARAS. 5. THE SAID ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN PARA NO.5 WHICH IS REPRODUCED AS UNDER: 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIE S BELOW. WE FIND THAT THE ASSESSEE IS A CONTRACTOR AND DEVELOPING/WORKING ON VARIOUS SITES FOR WHICH LABOURERS WERE EMPLOYED AND SUPERVISED BY SHRI DADA KADAM AND HE USED TO DISBURSE THE SALARIES IN CASH AT THE SITES BY TAKIN G THE SAME ON THE BASIS OF REQUISITION FROM MR. DINESH OJHA WHO WAS CASHIER OF THE ASSESSEE. DURING THE COURSE OF HEARING BEFORE US, THE ASSESSEE PRODUCED THE SOME SAMPLE RECEIPTS TAKEN FROM THE LABORERS WHICH PROVED THAT THE ASSESSEE HA S MAINTAINED BOOKS AND OTHER RECORDS OF THE PAYMENTS TO THE LABORERS. IT IS CUST OMARY IN THE BUSINESS OF CONSTRUCTION TO PAY WAGES THROUGH THE SUPERVISOR/MU NSHIS AND THEREFORE, WE ARE IN AGREEMENT WITH THE CONCLUSION DRAWN BY THE LD.CI T(A) THAT ALL THESE PAYMENTS WERE NOT GENUINE. HOWEVER SOME REASONABLE DISALLOWA NCE SHOULD MEET THE ENDS OF JUSTICE AS THE ASSESSEE HAS FAILED TO FURNISH THE N ECESSARY DOCUMENTARY EVIDENCES BEFORE THE LOWER AUTHORITIES. ACCORDINGLY WE DIRECT THE AO TO RESTRICT DISALLOWANCE ON ACCOUNT VARIOUS DEFICIENCIES AND NON VOUCHED CAS H PAYMENTS AT RS.20,00,000/- THIS GROUND IS PARTLY ALLOWED. 6. A PERUSAL OF THE SAID ORDER REVEALS THAT RS.20 LA KHS HAS BEEN SUSTAINED BY THE BENCH BY WRONGLY TAKING THE F IGURE OF TOTAL PAYMENT AT RS.30,09,259/-. WE, THEREFORE, ARE INCLINED TO APPLY THE SAME RATIO AND AFTER TAKING THE TOTAL PAYMENTS MADE FOR FURTHER EXPENSES TO MR. DINESH OJHA THE AD DITIONS AT RS.10,68,590/- BY TAKING THE PAYMENT TO MR. DINESH O JHA AT RS.16,07,870/- AS AGAINST RS.30,09,259/- TAKEN EARL IER IN THE IMPUGNED ORDER. ACCORDINGLY, THE ADDITION TO THE EX TENT OF RS.10,68,590/- IS SUSTAINED. THE ORDER DATED 28.09.2 017 STANDS AMENDED TO THIS EXTENT. MA NO.902/M/2017 (ARISING OUT OF ITA NO.6753/M/2014) M/S. ALUMILITE ARCHITECTURAL PVT. LTD. 4 7. THE MISCELLANEOUS APPLICATION IS ALLOWED AND OR DER DATED 28.09.2017 PASSED IN ITA NO.6753/M/2014 FOR A.Y. 2010- 11. STANDS AMENDED ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 19.06.2018. SD/- SD/- (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19.06.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.