ZAFONIC FINLEASE & INVST. P.LTD., MUMBAI v. ASST.C.I.T.,RANGE-8(3), MUMBAI

ITA 2121/MUM/2008 | 2002-2003
Pronouncement Date: 07-01-2010 | Result: Allowed

Appeal Details

RSA Number 212119914 RSA 2008
Assessee PAN AAACZ0310K
Bench Mumbai
Appeal Number ITA 2121/MUM/2008
Duration Of Justice 1 year(s) 9 month(s) 10 day(s)
Appellant ZAFONIC FINLEASE & INVST. P.LTD., MUMBAI
Respondent ASST.C.I.T.,RANGE-8(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 07-01-2010
Date Of Final Hearing 16-12-2009
Next Hearing Date 16-12-2009
Assessment Year 2002-2003
Appeal Filed On 28-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH MUMBAI BEFORE SHRI R.V. ESWAR SENIOR VICE-PRESIDENT AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER ITA NO. 2121/MUM/2008 (ASSESSMENT YEAR: 2002-03) M/S. ZAFONIC FINLEASE & INVESTMENT ACIT RANGE - 8( 3) PVT. LTD. 124 ANDHERI UNIVERSLA AAYAKAR BHAVAN M .K. ROAD INDL. PREMISES J.P. ROAD VS. MUMBAI 400020 ANDHERI (W) MUMBAI 400058 PAN - AAACZ 0310 K APPELLANT RESPONDENT APPELLANT BY: SHRI VIPUL JOSHI RESPONDENT BY: SHRI MOHD. USMAN O R D E R PER B. RAMAKOTAIAH A.M. THIS APPEAL BY THE BY THE ASSESSEE IS AGAINST THE O RDER OF THE CIT(A)- XXIX DATED 09.01.2008. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUND: - 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACT ION OF THE ASSESSING OFFICER IN TAKING FACTORING INCOME OF RS.71 15 690/ - ON PROPORTIONATE BASIS WITHOUT APPRECIATING THE FACT T HAT THE APPELLANT HAD INCURRED A LOSS FROM THE BUSINESS OF NON-RECOVE RABILITY OF REMAINING DEBTS. 3. WHEN THE MATTER WAS POSTED FOR HEARING THE LEARNED COUNSEL FILED A DECLARATION IN FORM NO. 8 UNDER SECTION 158A(1) OF THE I.T. ACT THAT IDENTICAL QUESTION OF LAW IS PENDING BEFORE THE HON'BLE BOMBA Y HIGH COURT. THE DECLARATION FORM 8 IS AS UNDER: - I MR. M.K. VERGHESE SON OF LATE C.G. KOCHITTY . MR. M.K. VERGHESE BEING THE DIRECTOR OF ZAFONIC FINLEAE & INVESTMENT P. LTD . DO HEREBY DECLARE: ITA NO. 2121/MUM/2008 2 1. THAT THE FOLLOWING QUESTIONS OF LAW ARE PENDING IN THE CASE OF ZAFONIC FINLEASE & INVESTMENT P. LTD . BEFORE THE HIGH COURT ON AN APPEAL UNDER SECTION 260A IN RESPECT OF THE ASSE SSMENT YEAR 2003-04 . A COPY OF THE QUESTIONS OF LAW REFERRED TO THE HIG H COURT IS ENCLOSED. 2. THAT THE SAID QUESTIONS OF LAW ARE IDENTICAL WIT H THE QUESTIONS OF LAW ARISING IN THE CASE OF ZAFONIC FINLEASE & INVESTMENT P. LTD . IN RESPECT OF THE ASSESSMENT YEAR 2002-2003 WHICH I S PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL G BEING I.T.A. NO. 2121/M/08 3. THAT IS THE ASSISTANT COMMISSIONER OF INCOME-TAX 8 (3) AGREES TO APPLY TO THE CASE REFERRED TO IN PARAGRAPH 2 ABO VE THE FINAL DECISION ON THE QUESTION OF LAW IN THE CASE REFERRE D TO IN PARAGRAPH 1 ABOVE **I / THE ASSESSEE MENTIONED IN PARAGRAPH 1 AND 2 ABOVE SHALL NOT RAISE THE SAID QUESTIONS OF LAW IN THE CA SE REFERRED TO IN PARAGRAPH 2 ABOVE IN APPEAL BEFORE ANY APPELLATE AU THORITY OR FOR A REFERENCE BEFORE THE HIGH COURT UNDER SECTION 256 O R THE SUPREME COURT UNDER SECTION 257 OR IN APPEAL BEFORE THE SUP REME COURT UNDER SECTION 261. 4. THE QUESTION OF LAW ADMITTED BY THE HON'BLE BOMBAY HIGH COURT AS PER ANNEXURE IS AS UNDER: - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE TRIBUNAL WAS JUSTIFIED IN CONFIRMING THE A CTION OF THE RESPONDENT IN TAXING RS.3 15 776/- AS INCOME FROM FACTORING CONTRACT ON PROPORTIONATE / NOTIONAL BASIS ESPECI ALLY WHEN THE APPELLANT HAD IN FACT INCURRED LOSS? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE ORDER OF THE TRIBUNAL IS PERVERSE INASMUCH AS IT IS BASED ON SURMISES CONJECTURE AND SUSPICION BY TAKING INTO A CCOUNT EXTRANEOUS AND IRRELEVANT CONSIDERATIONS WHILE IGN ORING THE RELEVANT CONSIDERATIONS? 5. THE LEARNED D.R. HAS NO OBJECTION IF THE DECLARATIO N IS ADMITTED UNDER THE PROVISIONS OF THE ACT. CONSIDERING THE FA CT THAT SIMILAR ISSUE WAS INVOLVED IN A.Y. 2003-04 AND THE HON'BLE BOMBAY HIG H COURT HAS ADMITTED THE QUESTION OF LAW IN VIEW OF THE DECLARATION UND ER SECTION 158A(1) OF THE ACT WE DIRECT THE A.O. TO APPLY THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE ASSESSEES CASE ACCORDINGLY AND MODIFY THE ORDER AS PROVIDED IN THE SAID PROVISIONS. ITA NO. 2121/MUM/2008 3 6. IN THE RESULT APPEAL OF THE ASSESSEE IS CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY 2010. SD/- SD.- (R.V. ESWAR) (B. RAMAKOTAIAH) SENIOR VICE-PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED: 7 TH JANUARY 2010. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXIX MUMBAI 4. THE CIT VIII MUMBAI CITY 5. THE DR G BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P. ITA NO. 2121/MUM/2008 4 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.12.09 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 23.12.09 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 FILE SENT TO THE BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER