M/s.E.V.Radio Electricals, Cochin V. ITO, Ernakulam

MA 92/COCH/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9781 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 14-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA

Judgement Text

1 MA NO. 92 & 93/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.92 & 93/COCH/2012 (ARISING OUT OF I.T.A NO. 39 & 40/COCH/2010) (ASSESSMENT YEARS 2004-05 & 2005-06) M/S E.V. RADIO ELECTRICALS VS I.T.O., WD.2(2) LS PRESS ROAD ERNAKULAM ERNAKULAM, COCHIN 682 018 PAN : AAAFE5439R (APPLICANT) (RESPONDENT) APPLICANT BY : NONE WRITTEN SUBMISSION RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 21-12-2012 DATE OF PRONOUNCEMENT : 11-01-2013 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 2 MA NO. 92 & 93/COCH/2012 2. NO ONE APPEARED FOR THE TAXPAYER IN SPITE OF ISS UE OF NOTICE. HOWEVER, THE TAXPAYER HAS FILED AN APPLICATION REQU ESTING THE TRIBUNAL TO DISPOSE OF THE PETITIONS ON THE BASIS OF THE WRITTE N SUBMISSION. 3. WE HEARD SMT. S VIJAYAPRABHA, THE LD.DR AND PROC EEDED TO DISPOSE OF THE PETITIONS ON MERIT. SMT. VIJAYAPRABHA SUBMITT ED THAT THE COMMISSIONER OF INCOME-TAX(A) DISALLOWED 10% OF THE TOTAL EXPENSES UNDER THE HEADS TRANSPORTING & COOLIE, MISCELLANEOUS EXPE NSES, TRAVELLING, BROKERAGE COMMISSION AND ENTERTAINMENT. HOWEVER, T HIS TRIBUNAL WHILE CONSIDERING THE APPEAL OF THE TAXPAYER FOUND THAT D ISALLOWANCE OF EXPENSES AT 5% WOULD MEET THE ENDS OF JUSTICE INSTEAD OF 10%. IN THE ORDER OF THIS TRIBUNAL, THIS TRIBUNAL REFERRED TO ONLY THE MISCEL LANEOUS EXPENSES. HOWEVER, THE EXPENSES UNDER THE OTHER HEADS VIZ. TR ANSPORTING & COOLIE, TRAVELLING, BROKERAGE COMMISSION AND ENTERTAINMENT WERE NOT REFERRED TO. THEREFORE, ACCORDING TO THE LD.DR, THERE IS CONFUSI ON WHETHER THE DISALLOWANCE RESTRICTED BY THE TRIBUNAL IS ONLY WIT H RESPECT TO MISCELLANEOUS EXPENSES ONLY OR OTHER EXPENSES ALSO. 3 MA NO. 92 & 93/COCH/2012 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND THE WRITTEN SUBMISSIONS FILED BY THE TAXPAYER AS ALSO PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE TOTAL DISALLOWANCE WAS RS.1,07,222 WHI CH IS 10% OF RS.10,72,224 UNDER THE HEADING TRANSPORTING & COOLI E, MISCELLANEOUS EXPENSES, TRAVELLING, BROKERAGE COMMISSION AND ENTE RTAINMENT. THE COMMISSIONER OF INCOME-TAX(A) RESTRICTED THE DISALL OWANCE AT 10%. THIS TRIBUNAL WHILE CONSIDERING THE APPEAL OF THE TAXPAY ER FOUND THAT DISALLOWANCE @5% WOULD MEET THE ENDS OF JUSTICE. AC CORDINGLY, THE ASSESSING OFFICER WAS DIRECTED TO DISALLOW ONLY 5% INSTEAD OF 10%. HOWEVER, IN THE ORDER THE TRIBUNAL REFERRED ONLY TH E MISCELLANEOUS EXPENSES. OTHER EXPENSES LIKE TRANSPORTING & COOLI E, TRAVELLING, BROKERAGE COMMISSION AND ENTERTAINMENT WERE NOT REFERRED TO. THIS TRIBUNAL INTENDED TO RESTRICT THE DISALLOWANCE AT 5% IN RESP ECT OF ALL THE EXPENSES UNDER THE HEADING TRANSPORTING & COOLIE, MISCELLANE OUS EXPENSES, TRAVELLING, BROKERAGE COMMISSION AND ENTERTAINMENT. THE OMISSION REFERRED TO ABOVE IN RESPECT OF EXPENDITURE UNDER O THER HEADS, VIZ. TRANSPORTING & COOLIE, TRAVELLING, BROKERAGE COMMIS SION AND ENTERTAINMENT IS ONLY AN OVERSIGHT. IN FACT ALL THE EXPENDITURE CAN BE BROUGHT UNDER THE HEAD, MISCELLANEOUS EXPENDITURE. THEREFORE, THE AS SESSING OFFICER SHALL 4 MA NO. 92 & 93/COCH/2012 DISALLOW 5% OUT OF THE CLAIM OF RS.10,72,224 UNDER THE HEADS TRANSPORTING & COOLIE, MISCELLANEOUS EXPENSES, TRAVELLING, BROKE RAGE COMMISSION AND ENTERTAINMENT. 5. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION OF THE TAXPAYER IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH JANUARY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 11 TH JANUARY, 2013 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH