M/s Tulsi Theatre, Lucknow V. A.C.I.T, Lucknow

SA 13/LKW/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0225 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YASHVANT SINGH
• Assessee Lawyers: A P SINGH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 166/LKW/2018 ASSESSMENT YEAR: 2009 - 10 M/S TULSI THEATRE 12, RANI LAXMI BAI MARG H AZRATGANJ LUCKNOW V. DY. CIT RANGE II LUCKNOW T AN /PAN : AAAFT5956G (APP ELL ANT) (RESPONDENT) S.P. NO.13/LKW/2018 [IN ITA NO. 166/LKW/2018] ASSESSMENT YEAR: 2009 - 10 M/S TULSI THEATRE 12, RANI LAXMI BAI MARG HAZRATGANJ LUCKNOW V. DY. CIT RANGE II LUC KNOW T AN /PAN : AAAFT5956G (APP LIC ANT) (RESPONDENT) ASSESSEE BY: SHRI A. P. SINGH, ADVOCATE DEPARTMENT BY: SHRI YASHVANT SINGH, D.R. DATE OF HEARING: 27 0 7 201 8 DATE OF PRONOUNCEMENT: 03 0 8 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS A PPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 1, LUCKNOW DATED 16/1/2018. THE ASSESSEE HAS ALSO FILED STAY PETITION FOR STAY OF OUTSTANDING DEMAND OF RS.2,95,292/ - RAISED BY THE DEPARTMENT . S.P. NO.13/LKW/2018 & ITA NO.166/LKW/2018 PAGE 2 OF 3 2 . AT THE OUTSET LD. A.R. OF THE ASSESSEE S UBMITTED THAT IF THE APPEAL OF THE ASSESSEE IS HEARD AND ADJUDICATED ON PRIORITY BASIS, HE WILL NOT PRESS FOR STAY PETITION, TO WHICH THE LD. D.R. HAS NO OBJECTION. 3 . SINCE WE HAVE DECIDED TO HEAR AND ADJUDICATE THE APPEAL, STAY PETITION HAS BECOME INFRUCTUO US AND ACCORDINGLY WE REJECT THE SAME. 4 . COMING TO THE APPEAL OF THE ASSESSEE, T HE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM HAVING BUSINESS INCOME AND INCOME FROM HOUSE PROPERTY. IN THE ASSESSMENT PROCEEDINGS, ASSESSING OFFICER HA D ASKED THE ASSESSEE FOR JUSTIFICATION OF PAYMENT OF ELECTRICITY BILL TO THE TUNE OF RS.6,86,720/ - . ASSESSING OFFICER HAD CONDUCTED SPOT ENQUIRY TWICE AND WAS CONVINCED AND HAD ACCEPTED THE RETURNED INCOME. ORIGINAL ASSESSMENT COMPLETED UNDER SECTION 143 (3) OF THE ACT WAS REOPENED AND THE AMOUNT OF RS.6,86,720/ - PAID AS ELECTRICITY BILL WAS DISALLOWED AND AS A RESULT OF WHICH , SECOND ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3)/147 OF THE ACT AND A DEMAND OF RS. 3,48,292/ - WAS RAISED BY THE DEPARTMENT, OUT OF WHICH RS.53,000/ - HAS BEEN PAID BY THE ASSESSEE ON 4/2/2017. THEREAFTER ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE LD. CIT(A), LUCKNOW AND THE LD. CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 16/1/2018. AGAINST THE ORDER OF T HE LD. CIT(A), ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL ON 6/3/2018 . 5 . LD. A.R. OF THE ASSESSEE SUBMITTED BEFORE US THAT ASSESSING OFFICER HAD SENT A NOTICE OF DEMAND DATED 12/3/2018 DIRECTING THE ASSESSEE TO DEPOSIT THE BALANCE AMOUNT OF RS. 2,95,2 92/ - , FAILING TO WHICH COERCIVE MEASURES WILL BE ADOPTED. LD. A.R. OF THE ASSESSEE VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE FACT THAT BANQUET HALL , WITH REGARD TO WHICH ELECTRICITY BILL IS IN DISPUTE , WAS NOT IN EXISTENCE IN FINAN CIAL YEAR 2008 - 09. BANQUET HALL CAME INTO S.P. NO.13/LKW/2018 & ITA NO.166/LKW/2018 PAGE 3 OF 3 EXISTENCE W.E.F. FINANCIAL YEAR 2015 - 16 ONLY. ELECTRICITY EXPENSES INCURRED DURING FINANCIAL YEAR 2008 - 09 WAS FOR THE COMMON AREA AND OTHER PORTIONS WHICH WERE IN THE POSSESSION OF THE ASSESSEE. LD. A.R. OF THE ASSESSEE FURTHER PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF THESE FACTS. 6 . THE LD. D.R. PLACED RELIANCE UPON THE ORDERS OF THE AUTHORITIES BELOW. 7 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONT ENTIONS AND WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE RAISED BY THE LD. A.R. OF THE ASSESSEE RELATING TO EXISTENCE OF BANQUET HALL AT THE RELEVANT POINT OF TIME REQUIRES DETAILED FACTUAL VERIFICATION AND, THEREFORE, IN THE INTEREST OF JUSTICE, WE SET AS IDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION OF THE ISSUE AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 8 . IN THE RESULT, STAY PETITION OF THE ASSESSEE IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 / 0 8 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 RD AUGUST , 201 8 JJ: 2707 COPY FORWARDED TO: 1 . APPELLAN T 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR