E-COOL GAMING SOLUTIONS P.LTD, MUMBAI v. ASST CIT CIR 6(2), MUMBAI

ITA 5265/MUM/2012 | 2007-2008
Pronouncement Date: 11-10-2013 | Result: Allowed

Appeal Details

RSA Number 526519914 RSA 2012
Assessee PAN AABCE3886A
Bench Mumbai
Appeal Number ITA 5265/MUM/2012
Duration Of Justice 1 year(s) 1 month(s) 21 day(s)
Appellant E-COOL GAMING SOLUTIONS P.LTD, MUMBAI
Respondent ASST CIT CIR 6(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 11-10-2013
Assessment Year 2007-2008
Appeal Filed On 21-08-2012
Judgment Text
E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI .. !'# $ $ $ $ %$$ $&; ( !'# !) BEFORE SHRI P.M. JAGTAP AM AND SHRI VIVEK VARMA J M !./ I.T.A. NO.5265 /MUM/2012 ( (+ & $ & (+ & $ & (+ & $ & (+ & $ & / / / / ASSESSMENT YEAR : 2007-08 M/S E-COOL GAMING SOLUTIONS PRIVATE LIMITED 135 CONTINENTAL BUILDING DR. A.B. ROAD WORLI MUMBAI 400 018. + + + + / VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 6(2) AAYAKAR BHAVAN MUMBAI -20. #- !./ PAN : AABCE 3886 A ( -. / // / APPELLANT ) .. ( /0-. / RESPONDENT ) ASSESSEE BY SHRI RAJESH CHAMARIA ASSESSEE BY : SHRI PITAMBAR DAS !+$ 1 / // / DATE OF HEARING : 09-10-2013 23 1 / DATE OF PRONOUNCEMENT : 11-10-2013 [ '4 / O R D E R PER P.M. JAGTAP A.M . : .. !'# THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A) 12 MUMBAI DATED 19-6-2012 AND THE SOLITAR Y ISSUE ARISING OUT OF THE SAME RELATES TO THE DISALLOWANCE OF RS. 23 21 523/- MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF ASSESSEE S CLAIM FOR DEDUCTION OF SALES TAX PAID IN THE EARLIER YEAR BUT CLAIMED IN T HE YEAR UNDER CONSIDERATION ON THE GROUND THAT THE LIABILITY FOR THE SAID SALES TAX WAS CRYSTALISED IN THAT YEAR AS A RESULT OF THE DECISION OF HONBLE SUPREME COURT. ITA 5265/M/12 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE AS SESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF KENLOTT GAMING SOLUTIONS P. LTD. VS. ACIT RENDERED VIDE ITS ORDER DATED 8 TH AUGUST 2012 IN ITA NO. 5016/MUM/2011 WHEREIN A SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE FOR THE FOLLOWING REASONS GIVEN IN PARA NO. 7:- 7. AS IS CLEARLY EVIDENT FROM THE ORDER OF THE HON BLE SUPREME COURT REPRODUCED ABOVE THE LOTTERY TICKETS WERE HELD TO BE NOT GOODS BY THE HONBLE SUPREME COURT ON WHICH TAX COULD BE IEVIED AS PER THE PROVISIONS OF THE SALES TAX ACT. THE AMOUNT IN QUESTION PAYABLE B Y THE ASSESSEE THUS CEASED TO BE A SALES TAX LIABILITY AS A RESULT OF T HE ORDER OF THE. HONBLE SUPREME COURT DATED 27TH JULY 2006 (SUPRA) AND IT THEREFORE NO MORE REMAINED A STATUTORY LIABILITY. THE DECISION RENDER ED BY THE LEARNED CIT(APPEALS) WHILE CONFIRMING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF SALES TAX TREATING THE SAME AS A STATUTORY LIABILIT Y IN OUR OPINION THEREFORE IS NOT WELL FOUNDED. THE SAID LIABILITY WAS NOT A STAT UTORY LIABILITY AND SINCE IT WAS A DISPUTED LIABILITY WHICH WAS SETTLED FINALLY AS A RESULT OF THE DECISION RENDERED BY THE HONBLE SUPREME COURT ON JULY 27 2 006 WE FIND MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE SAID DISPUTED LIABILITY WAS CRYSTALLIZED IN THE PREVIOUS YEAR REL EVANT TO ASSESSMENT YEAR 2007-08 I.E. THE YEAR UNDER CONSIDERATION. WE THER EFORE ARE OF THE VIEW THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION ON ACCOUNT OF THE SAID LIABILITY IN THE YEAR UNDER CONSIDERATION. HAVING DECIDED THIS ISSUE IN PRINCIPLE WE HOWEVER FIND THAT THERE ARE VARIOUS FACTUAL ASPECTS WHICH N EED TO BE VERIFIED/EXAMINED BEFORE THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON A CCOUNT OF SALES TAX LIABILITY IS FINALLY ALLOWED SUCH AS PROOF OF PAYMENT TREA TMENT GIVEN IN THE BOOKS OF ACCOUNTS IN THE EARLIER YEARS ETC. WE THEREFORE R ESTORE THIS ISSUE TO THE FILE OF THE AO FOR CONSIDERING AND ALLOWING THE CLAIM OF TH E ASSESSEE ON MERIT AFTER SUCH VERIFICATION/EXAMINATION. 3. AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WEL L AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO THE CASE OF KENLOTT GAMING SOLUTIONS P. LTD. (SUPRA) WE RESPECTFULLY FOLLOW THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL RENDERED IN THE SAID CASE AND HOLD THAT TH E ASSESSEE IS ENTITLED FOR DEDUCTION ON ACCOUNT OF THE IMPUGNED SALES TAX LIAB ILITY IN THE YEAR UNDER CONSIDERATION WHEN THE SAID LIABILITY WAS CRYSTALIS ED. IT IS HOWEVER OBSERVED THAT AFTER DECIDING THIS ISSUE IN FAVOUR OF THE ASS ESSEE IN PRINCIPLE THE MATTER WAS RESTORED BY THE TRIBUNAL IN THE CASE OF KENLOTT GAMING SOLUTIONS P. LTD. ITA 5265/M/12 3 (SUPRA) TO THE FILE OF THE A.O. FOR VERIFICATION/EX AMINATION OF CERTAIN FACTUAL ASPECTS SUCH AS PROOF OF PAYMENT TREATMENT GIVEN I N THE BOOKS OF ACCOUNT IN THE EARLIER YEARS ETC. BEFORE THE CLAIM OF THE ASSE SSEE FOR DEDUCTION ON ACCOUNT OF SALES TAX LIABILITY COULD BE FINALLY ALLOWED. AC CORDINGLY WE RESTORE THIS MATTER TO THE FILE OF THE A.O. IN THE PRESENT CASE WITH A DIRECTION TO CONSIDER AND ALLOW THE CLAIM OF THE ASSESSEE ON MERIT AFTER SUCH VERIFICATION/EXAMINATION. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER 2013. . '4 1 23 5'+6 11-10-2013 3 1 SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP ) ( !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 5'+ DATED 11-10-2013 [ $.(+.!./ RK SR. PS '4 1 /(7% 8% '4 1 /(7% 8% '4 1 /(7% 8% '4 1 /(7% 8% / COPY OF THE ORDER FORWARDED TO : 1. -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 9 () / THE CIT(A)12 MUMBAI. 4. 9 / CIT 6 MUMBAI 5. %$< /((+ / DR ITAT MUMBAI E BENCH 6. =& > / GUARD FILE. '4+! '4+! '4+! '4+! / BY ORDER !0% /( //TRUE COPY// ? ? ? ?/ // /!@ !@ !@ !@ ( DY./ASSTT. REGISTRAR) / ITAT MUMBAI