DCIT 16(3)), MUMBAI v. NEW LOOK BRASSIERE CO., MUMBAI

ITA 7816/MUM/2011 | 2008-2009
Pronouncement Date: 30-10-2013 | Result: Dismissed

Appeal Details

RSA Number 781619914 RSA 2011
Assessee PAN AAAFN1454B
Bench Mumbai
Appeal Number ITA 7816/MUM/2011
Duration Of Justice 1 year(s) 11 month(s) 11 day(s)
Appellant DCIT 16(3)), MUMBAI
Respondent NEW LOOK BRASSIERE CO., MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-10-2013
Assessment Year 2008-2009
Appeal Filed On 18-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI SANJAY ARORA ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN JUDICIAL MEMBER ITA NO. 7816/MUM/2011 ASSESSMENT YEAR: 2008 - 09 ACIT - 16(3) MATRU MANDIR TARDEO ROAD MUMBAI - 400 00 7 VS. M/S. NEW LOOK BRASSIER CO. 204 J.S.S. ROAD GIRGAUM MUMBAI - 400 004 PAN: AAAFN 1454 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NISHIT GANDHI REVENUE BY : SHRI S.S. RANA DATE OF HEARING : 22.10.2013 DATE OF PRONOUNCEMENT : 30 . 10 .2013 O R D E R PER DR . S.T.M. PAVALAN J M: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD.CIT(A) - 27 MUMBAI DATED 23.08.2011 FOR THE ASSESSMENT YEAR 2008 - 09 . 2. BRIEFLY STATED THAT T HE AS S ESSEE A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF MANUFACTURING UNDERGARMENTS DURING THE A.Y. 2004 - 05 HAD CLAIMED EXPENSES OF RS. 64 66 583/ - TOWARDS COMPENSATION INCURRED ON INTRODUCING VOLUNTARY RETIREMENT SCHEME F OR ITS EMPLOYEES. IN T HE ASSESSMENT COMPLET ED U/S 143(3) FOR THE AFOREMENTIONED ASSESSMENT YEAR WAS REVISED U/S.154 OF THE ACT ON THE GROUND THAT U/S 35DDA OF THE ACT THE ASSESSEE WAS ENTITLED TO CLAIM ONLY 1/5 TH OF SUCH AMOUNT. ACCORDINGLY THE EXPENDITU RE WAS RESTRICTED TO RS.12 93 316/ - AND THE BALANCE AMOUNT WAS DISALLOWED OBSERVING THAT THE SAME WAS ALLOWABLE @ 1/5 TH EVERY YEAR FOR A FURTHER PERIOD OF FOUR YEARS. NOW FOR THE YEAR UNDER CONSIDERATION I .E. A.Y. 2008 - 09 THE ASSESSEE HAD NOT CLAIM ED THE ENTITLED AMOUNT OF RS.12 93 316/ - BEING 1/5 TH OF THE ABOVE AMOUNT IN ITS RETURN OF INCOME FILED ELECTRONICALLY. HOWEVER THE SAME WAS CLAIMED IN THE STATEMENT OF COMPUTATION FILED BEFORE THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS BY FURNISHING NECESSARY FACTS. THE AO DID NOT ALLOW THE SAID CLAIM ON THE GROUND THAT IT WAS NOT MADE IN THE RETURN OF INCOME BY RELYING ON THE DECISION OF GOETZE INDIA LTD. VS. CIT (2006) 284 ITR 323 (SC). ITA NO. 7816/MUM/2011 M/S. NEW LOOK BRASSIER CO. ASSESSMENT YEAR: 2008 - 09 2 ON APPEAL THE LD.CIT(A) HELD THAT THE DECISION OF GOETZE INDIA PVT. LTD. DOES NOT APPLY TO THE POWERS OF THE APPELLATE AUTHORITIES TO ADMIT A CLAIM WHICH ARISES FROM THE FACTS BORNE ON RECORD. F URTHER BY RELYING UPON THE DECISION OF THE ITAT MUMBAI IN THE CASE OF CHICAGO NEUMATIC INDIA PVT. LTD. VS. DCIT (15 SOT 252) THE LD. CIT(A) DIRECTED THE AO TO ALLOW THE CLAIM OF THE ASSESSEE. AGGRIEVED BY THE IMPUGNED ORDER THE REVENUE IS IN APPEAL BEFORE US. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD IT IS PERTINENT TO NOTE THAT THE ASSESSEE IS ENTITLED FOR RE LIEF VIDE THE ORDER U/S 154 FOR THE A.Y. 2004 - 05 WHEREIN IT HAS BEEN HELD THAT 1/5 TH OF THE TOTAL EXPENSES WILL BE ALLOWED FOR A PERIOD OF FIVE YEARS IS NOT DISPUTED. HENCE THE LIMITED ISSUE BEFORE US IS TO DECIDE WHETHER THE LD.CIT(A) IS JUSTIFIED IN ALL OWING THE CLAIM OF THE ASSESSEE AT THE APPELLATE STAGE WHICH THE ASSESSEE HAS NOT CLAIMED IN THE RETURN OF INCOME BUT CLAIMED THE SAME DURING THE ASSESSMENT PROCEEDINGS. IN THIS REGARD WE AGREE WITH THE FINDINGS OF THE LD.CIT(A) THAT THE DECISION OF GOETZ E INDIA PVT. LTD. DOES NOT APPLY TO THE POWERS OF THE APPELLATE AUTHORITIES TO ADMIT A CLAIM WHICH ARISES FROM THE FACTS BORNE ON RECORD. ALSO THE LD.CIT(A) HAS CORRECTLY RELIED ON THE DECISION OF THE ITAT MUMBAI IN THE CASE OF CHICAGO NEUMATIC INDI A PVT . LTD. VS. DCIT (SUPRA ) WHEREIN IT HAS BEEN HELD THAT THE AO IS BOUND TO COMPUTE THE LEGITIMATE INCOME BASED ON THE FACTS OF THE CASE. ACCORDINGLY WE FIND THAT THE LD.CIT(A) IS JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE AT THE APPELLATE STAGE WHICH T HE ASSESSEE HAS NOT CLAIMED IN THE RETURN OF INCOME BUT CLAIMED THE SAME DU RING THE ASSESSMENT PROCEEDINGS. IN VIEW OF THAT MATTER WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF THE LD.CIT(A) DIRECTING THE AO TO ALLOW THE SAID CLAIM AND THE SAME IS UPHEL D. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN CO URT ON THIS 30 TH DAY OF OCTOBER 2013. SD/ - SD/ - ( SANJAY ARORA ) (DR. S.T.M. PAVALAN) AC COUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 30 .10 . 2013. * S RIVASTAVA ITA NO. 7816/MUM/2011 M/S. NEW LOOK BRASSIER CO. ASSESSMENT YEAR: 2008 - 09 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT ( A) CONCERNED MUMBAI THE DR B BENCH // TRUE COPY // BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.