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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI RAJESH KUMAR & SHRI RAM LAL NEGI
Per Rajesh Kumar, Accountant Member:
The present appeal has been preferred by the assessee against the order dated 15.04.2013 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2007-08.
The only issue raised by the assessee in the grounds of appeal is against the order of Ld. CIT(A) rejecting the claim of 4 payments aggregating to Rs.20,63,610/- which were paid to Municipal Corporation of Greater Mumbai as property tax whereby upholding the order of AO.
2 M/s. Girnar Colonizers Pvt. Ltd.
The facts in brief are that this is the second round of appeal before us. The original assessment order was passed under section 143(3) dated 17.12.2009 in which the AO disallowed the property tax included in the capital work in progress of Rs.1,82,47,454/- which was appealed before the Ld. CIT(A) and Ld. CIT(A) vide order dated 09.03.2011 directed the assessee to produce before the AO the property tax bills, notices as issued by the BMC and AO was directed to allow the relief to the assessee subject to verification of these documents. Pursuant to the Ld. CIT(A)’s order dated 09.3.2011 AO passed an order on 29.07.2011 determining the total income at Rs.7,20,22,170/- allowing the deduction in respect of property tax paid vide letter dated 08.04.2011, 30.06.2011 and 07.07.2011. Again aggrieved by the order of AO dated 29.07.2011 the assessee filed an appeal before Ld. CIT(A) and Ld. CIT(A) vide her order dated 01.05.2013 directed the AO to verify the claim of the assessee after giving due opportunity to the assessee of being heard and decide the issue accordingly. Thereafter, the AO passed the order giving effect to Ld. CIT(A)’s order dated 12.3.2013 and allowed the relief after verification of property tax, bills and receipts to the tune of Rs.94,79,591/- as against the correct claim of property tax of Rs.1,32,59,667/-. The Ld. CIT(A) partly allowed the appeal of the assessee by allowing the relief to the extent of Rs.3,48,892/- paid on 02.08.1996 and confirmed the remaining payments to the tune of Rs.34,31,185/- as per details below: S.No. Date Amoun Whether Whether Whether Reason for in t (in confirme supporte appearin disallowanc the Rs.) d by d by g in the e table BMC bank bank in details statemen the t
3 M/s. Girnar Colonizers Pvt. Ltd. notic e to BMC 1. 31.01.199 70729 NO NO NO Not 8 0 confirmed by BMC 2. 31.01.199 42253 NO NO NO Not 8 3 confirmed by BMC YES YES 3. 28.09.200 43378 NO Not 2 7 confirmed by BMC YES YES 4. 28.09.200 50000 NO Not 2 0 confirmed by BMC YES YES 5. 30.09.200 43378 YES Not paid on 3 7 or before 20.09.2003 YES YES 6. 30.09.200 93378 YES Not paid on 3 7 or before 20.09.2003
Now the assessee is in appeal before us in respect of item No.2, 3, 6 & 7 amounting to Rs.20,63,610/-. The Ld. A.R. vehemently submitted before us that the assessee has actually paid the property tax to the Municipal Corporation which were not confirmed by the BMC. Out of which item at Sl. No.2 & 3 were not supported with the bank details whereas the item No.6 & 7 were duly supported with the bank details and also in respect of item No.2 & 3 there was no bank statement available with the assessee whereas in respect of item No.6 & 7 bank statements were produced but all these payments were not confirmed by BMC. The Ld. A.R. also referred to page No.6 of the paper book which gives itemwise bifurcation of expenses also showing the property tax which was paid right from the year 1996-97 to 2007-08. At page No.8 of the paper book the details of all the municipal corporation were given along with dates, cheque number, bank, period and amount etc. from 02.08.1996
4 M/s. Girnar Colonizers Pvt. Ltd. to 01.04.2005 aggregating to Rs.1,82,47,454/-. The Ld. A.R. also referred to the copies of ledger accounts in which all these payments were reflected and duly paid right from 1996-97 to 2006-07. Similarly, the ledger account in respect of property tax payable was filed at page No.13 & 14. The Ld. A.R. then brought to our attention the letter addressed to ITO dated 13.09.2012 in response to notice under section 133(6) of the Act dated 13.08.212 wherein in the last para it is stated that since the payments were made at the cash counter it can not be confirmed whether payment is made by assessee and further the details of Sr. No.2, 3, 6 & 7 do not tally with the office records which may be noted. The Ld. A.R. therefore stated that BMC has not disputed or denied the payments having been received but refused to confirm the same as it is not possible to confirm the payments since the payments were made at the cash counter. The Ld. A.R. therefore submitted that all the necessary details were submitted before the authorities below and the disallowance in respect of first two payments, the bank statement is not available but these were duly accounted for in the books of accounts and the payments were made through cheques whereas in respect of remaining two payments at Sl. No. 6 & 7 even the bank statements are available besides bank details etc. While drawing our attention to page No.8 of the paper book the Ld. A.R. submitted that all these payments were duly made through cheques/DDs duly accounted for in the books of accounts and therefore can not be rejected simply on the ground that these were not confirmed by the BMC. The Ld. A.R. submitted that when the payments were made through
The Ld. D.R., on the other hand, relied on the order of Ld. CIT(A) by submitting that assessee has not produced the books of accounts, bills, entries and bank statements in respect of first two payments whereas in respect of the remaining two payments the bank statement was produced. Therefore, the order of ld CIT(A) may kindly be confirmed.
After hearing both the parties and perusing the material on record, we observe that the dispute is with regard to the following payments: S.No. Date Amount (Rs.) 1 31.01.1998 7,07,290 2 31.01.1998 4,22,533 3 28.09.2002 4,33,787 4 28.09.2002 5,00,000 Total 20,63,610
We observe that in respect of first two payments, the assessee has not been able to produce the bank statements whereas bank details such as date, cheque No., name of the bank, amounts were all furnished before the AO and Ld. CIT(A). Similarly in respect of the next two payments the assessee besides producing the details as stated above also produced the bank statement. After perusing the facts before us the details of property tax paid for these years, copies of ledger accounts, copies of bank statement, we are of the view that assessee should be allowed these payments as the assessee has produced all the necessary details. In respect of first two items the assessee has produced the bank details such as cheque no m
6 M/s. Girnar Colonizers Pvt. Ltd. ledger copies except the bank statement but in respect the remaining two items the assessee has even produced bank statement. Under these fact we are of the view that these expenses should be allowed to the assessee. Moreover the payments are very old. We, therefore, are inclined to set aside the order of Ld. CIT(A) and direct the AO to allow Rs. 20,63,610/-.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 24.05.2019.