RANI RAM MUKERJI, v. DCIT,

MA 88/MUM/2010 | misc
Pronouncement Date: 01-04-2010 | Result: Partly Allowed

Appeal Details

RSA Number 8819924 RSA 2010
Assessee PAN AALPM8973B
Bench Mumbai
Appeal Number MA 88/MUM/2010
Duration Of Justice 1 month(s) 19 day(s)
Appellant RANI RAM MUKERJI,
Respondent DCIT,
Appeal Type Miscellaneous Application
Pronouncement Date 01-04-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 01-04-2010
Assessment Year misc
Appeal Filed On 11-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI T.R. SOOD AM AND SMT. ASHA VIJAYARAG HAVAN JM M.A. NO.88/MUM/2010 (ARISING OUT OF I.T(SS)A.NOS.90 & 93/MUM/2008) BLOCK ASSESSMENT YEARS :1990-91 TO 2001-02 MISS RANI RAM MUKERJI 701 VIDYA APARTMENTS 7 TH FLOOR JANKI KUTIR CHURCH ROAD JUHU MUMBAI 400 049. PAN: AALPM 8973 B VS. THE DY. COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE 22 R.NO. 403 AAYAKAR BHAVAN MUMBAI 400 020. (APPLICANT) (RESPONDENT) APPLICANT BY BY : SHRI B.V. JHAVERI RESPONDENT BY : SHRI NAVIN GUPTA O R D E R PER T.R. SOOD AM: THROUGH THIS MISC. APPLICATION THE ASSESSEE HAS SO UGHT RECTIFICATION OF AN ERROR IN THE ORDER OF THE TRIBUNAL IN IT(SS)A NOS. 90 & 93/MUM/08 VIDE CONSOLIDATED ORDER DATED 7 TH JANUARY2008. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO PARA 7 TO 14 OF THE MISCELLANEOUS APPLICATION. HE SUBMITTED THAT AN ADD ITION OF RS. 9 LAKHS HAS BEEN UPHELD IN RESPECT OF UNACCOUNTED REMUNERATION FOR THE MOVIE BUS ITNA SA KHWAB HAI. HE ALSO REFERRED TO PARAS 45 TO 55 OF THE ORDER OF THE TRIBUNAL. HE POINTED OUT THAT THE A.O. HAD MADE ADD ITION OF RS. 21 LAKHS ON THE BASIS OF THE NOTINGS IN THE DIARY. ACCORDING TO THE ASSESSING OFFICER SINCE THE FIGURE OF 48 WAS MENTIONED IN THE DIARY AND ULT IMATELY ASSESSEE HAD SHOWN ONLY A SUM OF RS. 27 LAKHS AS REMUNERATION FO R THE MOVIE BUS ITNA SA KHWAB HAI. THE ASSESSING OFFICER MADE AN ADDITION OF RS. 21 LAKHS. THE TRIBUNAL UPHELD THE ADDITION ONLY FOR RS. 9 LAKHS B Y OBSERVING THAT THE DIARY ITSELF SHOWED THAT THE CONTRACT WAS FOR RS. 36 LAKH S. HOWEVER THE TRIBUNAL DID NOT AGREE WITH THE SUBMISSIONS ON BEHALF OF THE ASSESSEE THAT LATER ON THE REMUNERATION WAS REDUCED TO RS. 27 LAKHS. FOR T HIS THE TRIBUNAL MANO.88/M/2010 MS.RANI RAN MUKERJI 2 OBSERVED THAT WHEN THE DIARY WAS METICULOUSLY MAINT AINED THEN WHY THIS FIGURE WAS NOT CHANGED IN THE DIARY AND IN THIS REG ARD HE QUOTED PARA 53 OF THE ORIGINAL ORDER WHICH READS AS UNDER: WE PARTLY AGREE WITH THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAVE ORIGINALLY ASKED FO R A SUM OF RS. 48 LAKHS AS REMUNERATION FOR DOING THE FILM BUS ITNA SA KHAWAB HAI. BUT THE SAME WAS NEGOTIATED TO RS. 36 LAKHS. THE EN TRY IN THE DIARY CLEARLY SHOWS AGAINST THE CONTRACTED AMOUNT THE FIG URE OF RS. 36 IS MENTIONED. HOWEVER IF THERE WAS FURTHER ANY REDUCT ION WHY THIS AMOUNT WAS NOT CHANGED. AS POINTED OUT BY THE LEARN ED DEPARTMENTAL REPRESENTATIVE THE ASSESSEE HAS BEEN S TATED TO BE VERY METICULOUS IN MAINTAINING THE DIARY AND WHILE ARGUI NG THE ADDITION OF RS.2.5 LAKHS RECEIVED ON 10.4.2000 WAS OBLITERATED SO AS TO ACCOMMODATE THE RECEIPT OF RS. 4 LAKHS AT THE APPRO PRIATE DATE WHICH WAS RECEIVED ON 27.1.2000 AND THEN THE ENTRY FOR RS. 2.5 LAKHS WAS MADE BELOW THIS ENTRY OF RS. 4 LAKHS SO AS TO M AKE IT APPROPRIATE DATE. WE FAIL TO UNDERSTAND THAT WHEN ASSESSEES F ATHER WHO HAS WRITTEN THE DIARY IS SO PARTICULAR IN RESPECT OF TH E AMOUNTS AS WELL AS THE DATES THEN THERE IS NO EXPLANATION WHY THE AMO UNT OF RS. 36 LAKHS WAS NOT CHANTED TO RS. 27 LAKHS. THE THEORY R EGARDING REDUCTION OF REMUNERATION SEEMS TO BE AN AFTER THOUGHT ONLY. THE ORIGINAL AGREEMENT THE COPY OF WHICH IS PLACED AT PAGES 86 AND 87 CLEARLY SHOWS THAT AGREED REMUNERATION WAS RS. 36 LAKHS. TH E LETTER WRITTEN BY M/S. ROSE MOVIES ON 18.5.2001 TO THE ASSESSEE WH ICH IS AT PAGE 88 READS AS UNDER: . .. 3. HE POINTED OUT THAT SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 26 TH SEPTEMBER 2000 AND A DIARY WAS ALSO SEIZED AND THEREFORE THERE WAS NO QUESTION OF CHANGING THE FIGURES IN THE DIARY AFTER THAT DATE AND THAT IS WHY NO CHANGES ARE THERE IN THE DIARY BECAUSE REDUCTION IN REMUNERATION WAS AGREED ON 18.05.2001. THEREFORE THE OBSERVATION OF THE TRI BUNAL THAT WHY REDUCTION OF REMUNERATION WAS NOT CHANGED IN THE DIARY IS INCORR ECT. 4. FURTHER HE SUBMITTED THAT THE REMUNERATION OF TH IS PICTURE WAS REDUCED BECAUSE THE PICTURE WAS COMPLETED AND READY FOR RE LEASE BUT THE SAME WAS NOT TAKEN BY THE DISTRIBUTORS. HE ALSO TOOK OBJECTION TO THE OBSERVATION OF THE TRIBUNAL IN PARA 55 WHERE IT WAS STATED THAT IT IS TO BE N OTED THAT NO DATE HAS BEEN MENTIONED IN THE REPLY AND THE LETTER REQUESTING FO R REDUCTION OF REMUNERATION HAS BEEN MADE AND THE SAME HAS BEEN ACCEPTED SEEMS TO BE TOTALLY UNNATURAL AS FILM MANO.88/M/2010 MS.RANI RAN MUKERJI 3 STARS ARE REPUTED TO HAGGLE FOR MONEY TO THE LAST PIE. IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT ASSESSEE WAS TO RECEIVE A SUM OF R S. 36 LAKHS FOR THE FILM BUS ITNA SA KHAWAB HAI AND THEREFORE THE ASSESSEE MUST H AVE RECEIVED THE BALANCE SUM OF RS. 9 LAKHS IN CASH BECAUSE ONLY RS. 27 LAKHS H AS BEEN DECLARED AS REMUNERATION. 5. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPR ESENTATIVE WHILE STRONGLY SUPPORTING THE ORDER OF THE TRIBUNAL SUBMITTED THAT THE TRIBUNAL HAS NOT SUSTAINED THE ADDITION OF RS. 9 LAKHS MERELY ON THE BASIS OF DIARY BUT ALSO OTHER OBSERVATIONS IN PARAS 53 AND 55. HE SUBMITTED THAT WHEN THE PICTURE WAS ALREADY COMPLETED THEN HOW REDUCTION COULD BE AGREED LATER ON BECAUSE THE REQUEST FOR REDUCTION OF REMUNERATION WAS DATED 18 TH MAY 2000 WHEREAS THE PICTURE WAS COMPLETED MUCH BEFORE THAT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. PERUSAL OF PARA 53 OF THE ORDER OF THE TRIBUNAL CLEARLY SHOWS THAT IT WAS OBSERVED THAT IF THERE WAS FURTHER ANY REDUCTION WHY THIS AMOUNT WAS NOT CHANG ED. AS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THE ASSESSEE H AS BEEN STATED TO BE VERY METICULOUS IN MAINTAINING THE DIARY AND WHILE ARGUI NG THE ADDITION OF RS.2.5 LAKHS RECEIVED ON 10.4.2000 WAS OBLITERATED SO AS TO ACCO MMODATE THE RECEIPT OF RS. 4 LAKHS AT THE APPROPRIATE DATE WHICH WAS RECEIVED O N 27.1.2000 AND THEN THE ENTRY FOR RS. 2.5 LAKHS WAS MADE BELOW THIS ENTRY OF RS. 4 LAKHS SO AS TO ACCOMMODATE THE RECEIPT OF RS. 4 LAKHS AT THE APPROPRIATE DATE WHIC H WAS RECEIVED ON 27.1.2000 AND THEN THE ENTRY FOR RS. 2.5 LAKHS WAS MADE BELOW THI S ENTRY OF RS.4 LAKHS SO AS TO MAKE IT APPROPRIATE DATE. WE FAIL TO UNDERSTAND TH AT WHEN ASSESSEES FATHER WHO HAS WRITTEN THE DIARY IS SO PARTICULAR IN RESPECT O F THE AMOUNTS AS WELL AS THE DATE THEN THERE IS NO EXPLANATION WHY THE AMOUNT OF RS.3 6 LAKHS WAS NOT CHANGED TO RS. 27 LAKHS. THE THEORY REGARDING REDUCTION OF REMUNER ATION SEEMS TO BE AN AFTER MANO.88/M/2010 MS.RANI RAN MUKERJI 4 THOUGHT ONLY. THE ORIGINAL AGREEMENT THE COY OF WHI CH IS PLACED AT PAGES 86 AND 87 CLEARLY SHOWS THAT AGREED REMUNERATION WAS RS.36 LA KHS. WE FURTHER FIND THAT SINCE DIARY WAS SEIZED ON 22ND SEPTEMBER 2000 I.E. ON T HE DATE OF SEARCH. THEREFORE THIS DIARY COULD NOT HAVE BEEN CHANGED BY ASSESSEE S FATHER WHICH MEANS THE OBSERVATIONS ARE NOT CORRECT AND CLEARLY ERRONEOUS. HOWEVER FURTHER READING OF PARAS 53 TO 55 CLEARLY SHOW THAT THAT THERE IS NO E RROR IN REACHING THE FINAL CONCLUSION OF THE ORDER BECAUSE THE SAME WAS BASED ON OTHER FACTORS ALSO. HOWEVER TO REMOVE ANY CONFUSION WE SUBSTITUTE THE ERRORS POINTED OUT ABOVE IN PARAS 53 TO 55 OF THE ORDER OF THE TRIBUNAL WHICH R EAD AS UNDER: 53. WE PARTLY AGREE WITH THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAVE ORIGINALLY ASKED FOR A SUM OF RS. 48 LAKHS AS REMUNERATION FOR DOING THE FILM BU S ITNA SA KHAWAB HAI. BUT THE SAME WAS NEGOTIATED TO RS. 36 LAKHS. THE ENTRY IN THE DIARY CLEARLY SHOWS THAT AGAINST THE CONTRACTED AMO UNT THE FIGURE OF RS. 36 IS MENTIONED. THE THEORY REGARDING REDUCTION OF REMUNERATION SEEMS TO BE AN AFTER THOUGHT ONLY. THE ORIGINAL AGR EEMENT THE COPY OF WHICH IS PLACED AT PAGES 86 AND 87 CLEARLY SHOWS THAT AGREED REMUNERATION WAS RS. 36 LAKHS. THE LETTER WRITTEN B Y M/S. ROSE MOVIES ON 18.5.2001 TO THE ASSESSEE WHICH IS AT PAG E 88 READS AS UNDER: ROSE MOVIES COMBINE TO MISS RANI MUKERJI B-405 SHAKTI BLDG. YARI ROAD VERSOVA ANDHERI (W) MUMBAI 400 061 18 TH MAY 2001 DEAR MADAM FIRST LET ME TAKE THIS OPPORTUNITY TO THANK YOU FOR ALL THE SUPPORT AND CO-OPERATION EXTENDED BY YOU AND YOUR ENTIRE FAMILY FOR THE SMOOTH COMPLETION OF OUR FILM BUS ITNA SA KHWAAB HAI.. MANO.88/M/2010 MS.RANI RAN MUKERJI 5 AS YOU MAY BE AWARE THE ENTIRE FILM INDUSTRY IS FA CING A CRISES TIME AND WE ARE NO EXCEPTION. BEING AN ACTIVE MEMBER OF THE FILM TRADE WE ARE SUR E YOU TOO FELT THE EFFECT OF THE SEVER FINANCIAL CRUNCH. IT IS ON THIS NOTE THAT WE WISH TO REQUEST ANY FURT HER HELP AND CO- OPERATION YOU CAN EXTEND TO HELP US TO TIDE OVER TH ESE TESTING TIMES. IM SURE THAT AS ALWAYS YOU WILL STAND BY US. THANKING YOU WARM REGARDS SD. (PROPRIETOR) 54. THE REPLY OF THE ASSESSEE WHICH IS AT PAGE 89 W HICH ALSO READS AS UNDER: TO ROSE MOVIES COMBINE 3 AMAN PALACE 10 TH ROAD JUHU MUMBAI -49 [REG. BAS ITNA SA KHWAAB HAI] DEAR MADAM WITH REFERENCE TO YOUR LETTER DATED 18-05-2001 AND SUBSEQUENT DISCUSSION THIS IS TO PUT ON RECORD THAT THE CONTRA CT AMOUNT IS REDUCED AND IT WILL NOW BE READ AS 27 LACS ONLY INSTEAD OF 36 LACS AS PREVIOUSLY AGREED. KINDLY NOTE THAT YOU HAVE PAID SO FAR RS. 6.50 ;LA CS AND THE BALANCE AMOUNT IS 20.50 LACS. NOW IT HAS BEEN AGREED THAT THE BALANCE AMOUNT WIL L BE PAID BY YOU AS FOLLOWS: (1) 7.5 LACS ON 18 TH MAY 2001 (2) 6 LACS IN FAVOUR OF L.I.C. OF INDIA ON 3 RD JUNE 2001 (3) 7 LACS WIL BE PAID ON 18 TH JUNE 2001. WE HOPE AND PRAY THAT OUR ENDEAVOUR PROVES A TREMEN DOUS SUCCESS. WITH BEST WISHES YOURS TRULY SD. (RNI MUKERJI. 55. IT IS TO BE NOTED THAT NO DATE HAS BEEN MENTION ED IN THE REPLY AND THE LETTER REQUESTING FOR REDUCTION OF RE MUNERATION HAS BEEN MADE AND THE SAME HAS BEEN ACCEPTED SEEMS TO BE TOTALLY UNNATURAL AS THE PICTURE HAD ALREADY BEEN COMPLETED . IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT ASSESSEE WAS TO RECEIVE A SUM OF RS. 36 LAKHS FOR THE FILM BUS ITNA SA KHAWAB HA I AND THEREFORE MANO.88/M/2010 MS.RANI RAN MUKERJI 6 THE ASSESSEE MUST HAVE RECEIVED THE BALANCE SUM OF RS. 9 LAKHS IN CASH BECAUSE ONLY RS. 27 LAKHS HAS BEEN DECLARED A S REMUNERATION. AT THE TIME OF ORIGINAL HEARING THERE WAS NO ARGUME NT ON BEHALF OF THE ASSESSEE THAT AFTER COMPLETION OF THE PICTURE N O DISTRIBUTOR WAS COMING FORWARD TO TAKE THIS PICTURE. THIS ARGUMENT CANNOT BE ENTERTAINED AT THIS STAGE PARTICULARLY IN THE ABSEN CE OF ANY EVIDENCE AVAILABLE DURING THE ORIGINAL HEARING OR EVEN NOW. WE FAIL TO UNDERSTAND THAT ONCE THE PICTURE WAS COMPLETED HOW AND WHY THE ASSESSEE AGREED TO REDUCE THE REMUNERATION LATER ON . IN THE FILM LINE ONCE THE PICTURE IS COMPLETE THEN IN THE NORMAL COU RSE THE FILM ACTORS WILL RECEIVE THEIR REMUNERATION BEFORE SUCH COMPLET ION. EVEN AGREEMENT STATED THAT REMUNERATION WOULD BE RECEIVE D DURING PRODUCTION OF THE PICTURE. IT IS VERY DIFFICULT TO ACCEPT THAT THE ASSESSEE AGREED FOR THE REDUCTION OF REMUNERATION. 7. IN THE RESULT THE MISCELLANEOUS APPLICATION IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 1 ST DAY OF APRIL 2010. SD. SD. (ASHA VIJAYARAGHAVAN) (T. R. SOOD) JUDICIAL MEMBER ACCOUNT ANT MEMBER MUMBAI DATED THE 1 ST APRIL 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT CENTRAL-II MUMBAI 4. THE CIT(A)-IV MUMBAI 5. THE DR D BENCH MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR ITAT MUMBAI