ITO 6(2)2, v. DECCAN EXPRESS TRANSPORT P. LTD,

MA 191/MUM/2010 | 2005-2006
Pronouncement Date: 24-09-2010 | Result: Allowed

Appeal Details

RSA Number 19119924 RSA 2010
Assessee PAN AAACD2959G
Bench Mumbai
Appeal Number MA 191/MUM/2010
Duration Of Justice 5 month(s) 30 day(s)
Appellant ITO 6(2)2,
Respondent DECCAN EXPRESS TRANSPORT P. LTD,
Appeal Type Miscellaneous Application
Pronouncement Date 24-09-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 24-09-2010
Assessment Year 2005-2006
Appeal Filed On 25-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH MUMBAI BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER MA NO. 191/MUM/2010 (ARISING OUT OF ITA NO. 3664/MUM/2008) (ASSESSMENT YEAR: 2005-06) INCOME TAX OFFICER - 6(2)(2) M/S. DECCAN EXPRESS T RANSPORT P. LTD. ROOM NO. 510 AAYAKAR BHAVAN 101 KUTCH MEMON TRUST BLDG. M.K. ROAD MUMBAI 400020 VS. 272 NARSHI NATH STREET MASJID MUMBAI 400009 PAN - AAACD 2959 G APPELLANT RESPONDENT APPELLANT BY: SHRI R.S. SRIVASTAVA RESPONDENT BY: SHRI M.K. GOPAL O R D E R PER B. RAMAKOTAIAH A.M. THIS MISCELLANEOUS APPLICATION BY THE REVENUE IS AG AINST THE ORDER OF THE ITAT DATED 17.04.2009 ARISING OUT OF ITA NO. 36 64/MUM/2008 FOR A.Y. 2005-06. 2. REVENUE HAS RAISED TWO GROUNDS WITH REFERENCE TO AD DITION OF ` 7 50 000/- AND ` 1 50 000/- MADE BY THE A.O. WITH REFERENCE TO FREIG HT CHARGES AND ROAD EXPENSES BUT DELETED BY THE CIT(A ). IT WAS THE SUBMISSION THAT WHILE DISPOSING OFF THE APPEAL THE ITAT RELIE D ON THE APPEAL FOR A.Y. 2003-04 AND 2004-05 DATED 17.04.2009 DECIDED IN ITA NO. 901/MUM/2007 AND ITA NO. 3881/MUM/2007 WHEREIN WHILE CONCURRING WITH THE PART OF THE CIT(A)S ORDER THE TRIBUNAL FURTHER CONFIRMED THE D ISALLOWANCE TO THE EXTENT OF 10% OF THE TOTAL CASH PAYMENT OF FREIGHT CHARGES AND 50% OF ROAD EXPENSES THUS PARTLY ALLOWING THE DISALLOWANCE IN THE CASE OF FREIGHT CHARGES AND FULLY CONFIRMING THE DISALLOWANCE MADE BY A.O. BY REVERSING CIT(A)S ORDER. HOWEVER WHILE FOLLOWING THE ABOVE SAID ORDERS THE ITAT HOWEVER HAS CONFIRMED THE CIT(A)S ORDER AND DISMI SSED THE REVENUE MA NO. 191/MUM/2010 M/S. DECCAN EXPRESS TRANSPORT P. LTD. 2 APPEAL IN TOTO WITHOUT RESTRICTING THE DISALLOWANCE AS WAS DONE IN EARLIER YEARS. 3. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDERS IN A.Y. 2003-04 AND 2004-05 HAVE BEEN CONTES TED BEFORE THE HON'BLE BOMBAY HIGH COURT AND THE HON'BLE HIGH COURT VIDE I TA NOS. 2615 AND 2616 OF 2009 DATED 05.02.2010 HAS RESTORED THE ISSU E BACK TO THE FILE OF THE ITAT FOR THOSE ASSESSMENT YEARS DIRECTING AS UNDE R: - 5. WE ARE OF THE VIEW THAT THE INTERESTS OF JUSTIC E WOULD REQUIRE THAT AN OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO MEET THE QUERY WHICH WAS RAISED BY THE TRIBUNAL ON THE QUESTION AS TO WHETHER RECEIPTS OF THE TRUCK DRIVERS IN RESPECT OF THE PAY MENT OF FREIGHT IN CASH ARE AVAILABLE FOR VERIFICATION. FOR THE PURPOSE AFO RESAID IT WOULD BE APPROPRIATE TO REMAND THE PROCEEDINGS ONLY ON THIS ASPECT TO THE TRIBUNAL. THE TRIBUNAL WOULD BE AT LIBERTY TO VERIF Y WHETHER THE RECEIPTS ARE GENUINE AND WHETHER THEY WERE PRODUCED BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR IN APPEAL BEFORE THE CIT(A). IN ORDER TO ENABLE A FRESH DETERMINATIO N TO BE MADE ON THIS ASPECT THE IMPUGNED ORDER OF THE TRIBUNAL IS SET A SIDE TO THE AFORESAID EXTENT AND THE PROCEEDINGS ARE REMITTED B ACK TO THE TRIBUNAL FOR A FRESH DECISION. THE APPEAL IS DISPOSED OF. IN THE CIRCUMSTANCE THERE SHALL BE NO ORDER AS TO COSTS. 4. IN VIEW OF THE ABOVE THE LEARNED COUNSEL SUBMITTED THAT THIS MA CAN BE KEPT PENDING TILL THE ISSUE IS DECIDED IN EARLIE R YEARS OR IN THE ALTERNATE HAS NO OBJECTION FOR RECALLING THE ORDER FOR FRESH HEARING. 5. WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM THE ORDE RS THERE OCCURRED A MISTAKE IN DISPOSING THE REVENUE APPEAL WHILE STATING THAT THE EARLIER YEARS APPEAL WERE ALLOWED IN ASSESSEES FAV OUR WHEREAS THE FACT WAS THAT REVENUE WAS PARTLY SUCCESSFUL ON THE ISSU E OF FREIGHT EXPENSES AND FULLY AS FAR AS DISALLOWANCE OF ROAD EXPENSES A RE CONCERNED. NOW THAT THE EARLIER YEARS ORDERS ITSELF WAS RESTORED TO THE FILE OF THE ITAT FOR FRESH CONSIDERATION AS PER THE DIRECTIONS OF THE HON'BLE BOMBAY HIGH COURT REFERRED ABOVE IN THE INTEREST OF JUSTICE WE RECA LL THE ORDER FOR THIS ASSESSMENT YEAR AND RESTORE THE APPEAL FOR FRESH HE ARING IN ACCORDANCE WITH LAW AND FACTS. THE APPEAL IS ACCORDINGLY RECAL LED FOR FRESH HEARING AND FIXED FOR HEARING ON 22 ND NOVEMBER 2010. SINCE BOTH THE PARTIES ARE MA NO. 191/MUM/2010 M/S. DECCAN EXPRESS TRANSPORT P. LTD. 3 INFORMED IN THE OPEN COURT THERE IS NO NEED TO ISS UE SEPARATE NOTICE FOR POSTING THIS APPEAL. 6. IN THE RESULT MA OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH SEPTEMBER 2010. SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED: 24 TH SEPTEMBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VI MUMBAI 4. THE CIT VI MUMBAI CITY 5. THE DR D BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.