ACIT, New Delhi v. Shri John Mellor, New Delhi

ITA 4858/DEL/2009 | 2004-2005
Pronouncement Date: 22-04-2010 | Result: Dismissed

Appeal Details

RSA Number 485820114 RSA 2009
Assessee PAN AIWPM7591A
Bench Delhi
Appeal Number ITA 4858/DEL/2009
Duration Of Justice 3 month(s) 29 day(s)
Appellant ACIT, New Delhi
Respondent Shri John Mellor, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 22-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 22-04-2010
Date Of Final Hearing 22-04-2010
Next Hearing Date 22-04-2010
Assessment Year 2004-2005
Appeal Filed On 24-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NOS.4857 & 4858/DEL/2009 ASSESSMENT YEAR : 2004-05 ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-46(1) NEW DELHI. VS. SHRI JOHN MELLOR C/O G.R. AGNIHOTRI ADVOCATE E-1/14 VASANT VIHAR NEW DELHI. PAN : AIWPM7591A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.K. GUPTA SR. DR RESPONDENT BY : SHRI G.R. AGNIHOTRI ADVOCATE O R D E R PER R.P. TOLANI JUDICIAL MEMBER: THESE ARE REVENUES APPEALS DIRECTED AGAINST THE O RDERS OF THE CIT (A) DATED 13.10.2009 FOR ASSESSMENT YEAR 2004-05. ITA NO.4857/DEL/2009 2. THE FOLLOWING GROUNDS ARE RAISED:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITIONS MAD E BY THE A.O. IN RESPECT OF :- 1. INCLUSION OF TAX BORNE BY THE EMPLOYER IN SALAR Y FOR THE PURPOSE OF CALCULATING PERQUISITE VALUE FOR RENT FREE ACCOM MODATION PROVIDED BY THE EMPLOYER. ITA NO.4857 & 4858/DEL/2009 2 2. GROSSING UP OF TAX BORNE BY THE EMPLOYER U/S 19 5A BY REJECTING THE PLEA OF THE ASSESSEE FOR EXEMPTION U/ S 10 (10CC) OF IT ACT. 3. THE DEPARTMENT HAS NOT ACCEPTED THE DECISIONS RE LIED UPON BY THE LD. CIT (A)-XXX. THE APPELLANT CRAVES THE RIGHT TO ALTER AMEND ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 3. THE LD. DR RELIED ON THE ORDER OF ASSESSING OFFI CER. 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET CONTENDS THAT THE LD. CIT (A) DELETED THE ABOVE ADDITIONS WITH THE FOLLOWING OBSERVATIONS:- 5. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A PPELLANT AND THE ASSESSMENT ORDER MADE BY THE A.O. AS WELL A S THE REMAND REPORT. THE ONLY ISSUE OF DISPUTE IN THIS CASE IS THAT THE ASSESSEE CLAIMED THAT TAX BORNE BY THE EMPLOYER IS A NON MON ETARY BENEFIT THEREFORE EXEMPT U/S 10(10CC) OF THE IT ACT AND SH OULD NOT BE INCLUDED IN SALARY FOR COMPUTATION OF RENT FREE ACC OMMODATION AND NEITHER IT SHOULD BE SUBJECTED TO GROSSING UP WHER EAS THE A.O. HAS STATED IN HIS ASSESSMENT ORDER THAT THE TAX BORNE B Y EMPLOYER CONSIDERED BY THE ASSESSEE AS NON-MONETARY BENEFIT IS A MONETARY BENEFIT AND THEREFORE INCLUDED THIS IN SALARY FOR C OMPUTING THE PERQUISITE VALUE OF RENT FREE ACCOMMODATION AND ALS O HELD THAT TAX PAID BY THE EMPLOYER IN RESPECT OF THIS BENEFIT IS NOT ELIGIBLE FOR EXEMPTION AND IS TO BE GROSSED UP. HOWEVER THIS I SSUE IS COVERED IN ASSESSEE FAVOUR IN VIEW OF THE FOLLOWING ORDERS OF THE DELHI ITAT. I. RBF RIGS CORPORATION ITA NOS.1801 & ORS. II. FUMIO GOTO ITA NO.204/DEL/07 FOLLOWING THE ORDER OF THE JURISDICTIONAL TRIBUNAL IN THE CASES OF RBF RIGS CORPORATION AND FUMIO GOTO ON IDENTICAL FA CTS THE ADDITION OF RS.19 59 110/- MADE BY THE A.O. ON ACCO UNT OF DISALLOWANCE OF EXEMPTION U/S 10(10CC) AND CONSEQUE NTIAL GROSSING UP IS DELETED. 5. IT WAS CONTENDED THAT ITAT SPECIAL BENCH JUDGEME NT IN THE CASE OF RBF RIGS CORPORATION CONTINUES TO BE A GOOD LAW THEREF ORE THE LD. CIT (A) HAS RIGHTLY UPHELD THE ADDITION. ITA NO.4857 & 4858/DEL/2009 3 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. LD. DR HAS NOT CONTROVERTED THE ITAT JUDGEMENTS IN THE CASE OF RBF RIGS CORPORATION LIC (RBFRC) VS. ACIT (2007) 109 ITD 141 (DEL) (SB) AND FUMIO GOTO (SUPRA). THE LD. CIT (A)S ORDER HAVING RELIED ON THE ABOVE SPEC IAL BENCH DECISIONS WE SEE NO INFIRMITY IN THE ORDER OF LD. CIT (A) ON THIS IS SUE WHICH IS UPHELD. THE REVENUES APPEAL IS DISMISSED. ITA NO. 4858/DEL/2009 7. THE FOLLOWING GROUNDS ARE RAISED:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN:- 1. DELETING THE PENALTY U/S 271(1)(C) AMOUNTING TO RS.6 13 508/-. 2. THE DEPARTMENT HAS NOT ACCEPTED THE DECISIONS LD. C IT (A)- XXX IN RESPECT OF ORDER U/S 144 OF THE IT ACT IN T HE ABOVE CASE WHICH IS THE BASIS OF CANCELING THE PENALTY U/S 271 (1)(C). THE APPELLANT CRAVES THE RIGHT TO ALTER AMEND ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 8. SINCE WE HAVE ALREADY UPHELD THE ORDER OF LD. CI T (A) ON MERITS THE DELETION OF PENALTY U/S 271(1)(C) ON THE SAME ISSUE IS ALSO UPHELD. THIS APPEAL OF THE REVENUE IS ALSO DISMISSED. 9. IN THE RESULT THE REVENUES APPEALS ARE DISMISSED . . THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.04.20 10. [K.G. BANSAL] [R.P. TOLANI] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 22.04.2010. DK ITA NO.4857 & 4858/DEL/2009 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES