TMI Blog2019 (5) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... emonstrate that not only the assessee has offered the disputed amount as income in assessment year 2008 09, but has also claimed the corresponding TDS in the said assessment year. Tax rate for assessment year 2007 08 and 2008 09 are the same. That being the case, whether the amount is taxed in the impugned assessment year or in assessment year 2008 09, will have no effect on the Revenue. On the contrary, if the amount is taxed in the impugned assessment year, it has to be excluded from the income of the assessee in assessment year 2008 09, since, it has already been assessed in that assessment year. This is due to the settled legal principle that the same income cannot be assessed in two assessment years. Since the amount in dispute has already been offered as income by the assessee in assessment year 2008 09 and assessed to tax, we do not find any reason to interfere with the decision of the first appellate authority on the issue. - Decided against revenue Admission of additional evidence - violation of rule 46A - Disallowance due to failure on the part of the assessee to co relate the reversal of entries - fresh evidences were admitted and considered without giving opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laganesh, AM For the Assessee : Shri P.J.Pardiwala,AR, Shri Niraj Sheth, AR And Shri Ninad Patade, AR For the Revenue : Shri D.G. Pansari, Sr.AR CIT ORDER PER M. BALAGANESH (A.M): This appeal in ITA No.4897/Mum/2017 for A.Y.2008-2009 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-6, Mumbai in appeal No.CIT(A)-6/IT-75/752/2016-17 dated 21.04.2017 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3)of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 27.12.2010 by the ld. Income Tax Officer 2(2)(3), Mumbai (hereinafter referred to as ld. AO). 2. The first issue to be decided in this appeal is as to whether the ld CIT(A) was justified in deleting the addition of ₹ 46,00,000/- in the facts and circumstances of the case. 2.1. We have heard the rival submissions. Both the parties before us agreed that this issue is covered in favour of the assessee for Asst Year 2007-08 by the order of this tribunal in ITA No. 6787 6489/Mum/2014 dated 27.2.2019 except with variance in figures, wherein the basic facts and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us documentary evidences to demonstrate that the amount of ₹ 47,92,500 was neither billed nor accrued as income in the impugned assessment year. On the basis of submissions made and evidences produced by the assessee, learned Commissioner (Appeals) called for a remand report from the Assessing Officer. After considering the remand report furnished by the Assessing Officer as well as the submissions of the assessee in the context of facts and material on record, learned Commissioner (Appeals) observed that not only the amount of ₹ 47,92,500, was billed by the assessee in April 2007, i.e., financial year 2007 08, but the assessee has also offered it as income in assessment year 2008 09. He observed, the said income has also been assessed at the hands of the assessee in the assessment year 2008 09. He observed, since the rate of tax on the income assessed at the hands of the assessee is same both for assessment year 2007 08 and 2008 09, it will not affect the interest of Revenue. Further, he observed, if the income of ₹ 47,92,500, is assessed in the impugned assessment year, the said amount has to be excluded from the income of the assessee in assessment year 2008 09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and perused material on record. We have also applied our mind to the decisions relied upon. It is evident from the facts and material on record that the Assessing Officer has made the impugned addition purely on the reasoning that the bill dated 18th April 2007, raised by the assessee on Diageo India Pvt. Ltd., for the amount of ₹ 47,92,500, should have been accounted for by the assessee as work in progress for the impugned assessment year and offered to tax. However, the Assessing Officer has not disputed the fact that the aforesaid amount remained unbilled in assessment year 2007 08 and bill for the said amount was raised by the assessee on 18th April 2007, i.e., in the financial year relevant to assessment year 2008 09. It is also not disputed by the Department that the amount in dispute was not only offered as income by the assessee in assessment year 2008 09, but it was also assessed at the hands of the assessee in the said assessment year. This fact has not only been verified by the learned Commissioner (Appeals) in course of proceedings before him but on a query from the Bench, the learned Authorised Representative has furnished before us relevant documentary evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the rival submissions. Both the parties before us agreed that this issue is covered in favour of the assessee for Asst Year 2007-08 by the order of this tribunal in ITA No. 6787 6489/Mum/2014 dated 27.2.2019 except with variance in figures, wherein the basic facts and conclusion drawn thereon are as under:- 9. In ground no.2, the Revenue has challenged the deletion of addition of ₹ 17,66,393, made by the Assessing Officer. 10. Brief facts are, during the assessment proceedings, on verifying the Profit Loss Account of the assessee , the Assessing Officer noticing that an amount of ₹ 31,84,59,835, has been shown as professional fee received, called upon the assessee to furnish the details of professional fee received along with its nature. On verifying the information furnished by the assessee, the Assessing Officer observed that the assessee has passed reversal entries in respect of income already accounted for on earlier dates. However, he was of the view that a number of reversal entries could not be co related / reconciled by the assessee. Accordingly, he called upon the assessee to explain why the un reconciled difference of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer and the learned Commissioner (Appeals) after considering the observations of the Assessing Officer in the remand report, the submissions made by the assessee and evidences filed was satisfied that the assessee has properly reconciled / co related the reversal of entries for an amount of ₹ 17,66,393. The learned Departmental Representative has not brought before us any material to controvert the factual finding of the learned Commissioner (Appeals) insofar as it relates to the amount of ₹ 17,66,393. Therefore, to that extent we uphold the decision of learned Commissioner (Appeals). Ground raised is dismissed. 3.2 The ld AR stated that no additional / fresh evidences were submitted before the ld CITA by the assessee. Before us, the ld DR was also not able to point out the fresh evidences , if any, that were filed before the ld CITA which had been considered by the ld CITA without giving opportunity of being heard to the ld AO. Hence the Ground No. 3 raised by the revenue is dismissed. 3.3 Respectfully following the said decision of this tribunal in assessee s own case for Asst Year 2007-08, the ground no. 2 raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer observed that the expenditure was incurred by the assessee for enabling the profit making structure to work more efficiently. He observed, subscription made by the assessee for fine tuning business operation to enable the management to run its business effectively, efficiently and profitably leaving the fixed asset untouched, would be in the nature of revenue expenditure. Further, the learned Commissioner (Appeals) observed, since similar payment made towards DTT subscription was not disallowed in any of the earlier or subsequent assessment years, it should not be disallowed in the impugned assessment year. Accordingly, he deleted the addition made by the Assessing Officer. 20. The learned Departmental Representative relying upon the observations of the Assessing Officer submitted, since the assessee has paid the DTT subscription for availing a brand it is a capital expenditure as the assessee would be deriving enduring benefit. Thus, he submitted, the deduction claimed by the assessee cannot be allowed. 21. The learned Authorised Representative submitted, assessee makes the DTT subscription annually on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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