MISS NAZNEEN MINOCHER DUBASH,MUMBAI vs. INCOME TAX OFFICER 12(2)(2) AND THE INCOME TAX OFFICER, 17(2)(4), MUMBAI

सुनवाई क� तार�ख / Date of Hearing 11/10/2018 11/10/2018 आदेश क� तार�ख /Date of Order: आदेश / O R D E R

The assessee is aggrieved by the impugned order dated 21/11/2017 of the Ld. First Appellate Authority, Mumbai, holding the appeal of the assessee as not maintainable and consequent dismissal of the same.

2. During hearing, the Ld. counsel for the assessee, Shri Ketan Ved, relied upon the decision of the Tribunal in the case of Mafatlal Industries Ltd. vs DCIT (ITA No.6635/Mum/2013), order dated 15/05/2015 by claiming the identical issue was decided. The Ld. DR, Shri S. K.

Bepari, defended the impugned order.

2.1. I have considered the rival submissions and perused the material available on record. In view of the above, I am reproducing hereunder the relevant portion of the aforesaid order dated 15/05/2015 for ready reference and analysis:-

This appeal filed by the assessee on 13.11.2013 is against the order of the CIT (A)-20, Mumbai dated 20.8.2013 for the assessment year 2003-2004. In this appeal, assessee raised 12 grounds in toto and the effective grounds read as under:

1. Dismissing the appeal as "not maintainable" by applying the provisions of section 246A of the Income Tax Act 1961.

3. Exclusion of entire DEP8 income of Rs. B,8~3~943/- while computing profits eligible for deduction u/s BOHHC 4. Restricting the deduction u/s BOHHC to 50% of the eligible profits (while computing "book profits" u/s 115J8 of the Income Tax Act 1961.

2. At the very outset, Ld Counsel for the assessee brought our attention to the ground no.1 of the appeal and mentioned that it relates to the decision of the CIT (A) in dismissing the assessee's appeal as not maintainable. Brief facts in this regard are that this is the second round of proceedings before the Tribunal. In the first round, the Tribunal vide its order dated 21.12.2011, set aside the issues to the file of the AO and issued certain directions to the AO. Assessee is aggrieved with the order of the AO giving effect to said order of the ITAT (supra). Therefore, the assessee filed an appeal before the CIT CA) u/s 246A of the Act. On these facts, the CIT (A) held that such order of the AO is not appealable before the CIT (A). Against the said finding of the CIT CA), assessee raised the ground nO.1 on the issue of maintainability of the appeal. In this regard, Ld Counsel for the assessee argued that the order of the AO giving effect to the order of the CIT (A) is an appealable order before the CIT CA) u/s 246A of Act, as such orders of the AO are deemed as assessment orders. In order to substantiate above, Ld Counsel for the assessee filed a copy of the order of the Tribunal, dated 6.3.2013 in the case of Satellite Television Region Limited vs. Deputy Director of Income Tax in to 8641/Mum/201O for the AYs 2000-01, 2001-02, 2002-03. Referring to paras 3.3 and 5 of the said order of the Tribunal dated 6.3.2013 (supra), Ld Counsel demonstrated that the finding of the Tribunal for the proposition that such orders giving effect to the order of the ITAT constitutes assessment order and the same is appealable order before the appellate authorities. In this regard, Ld Counsel read out the para 5 of said Tribunal's order and the same is extracted as under:

"5. We have heard both the parties and perused the material on record. As regards the view of the Ld CJT (A) that orders passed by the AO u/s 254 of the Act giving effect to the order of the ITA T cannot be appealed against u/s 246A, it is pertinent to mention that the jurisdictional High Court in the case of Cstex Oil Refining India (Ltd) vs. Commissioner of Income Tax has held that fresh order to give effect to an appellate order is also an assessment order and can be a subject matter of appeal before the appellate authorities. Relying on the said decision, we are of the view that the ratio of the Ld CJT that the appeal before him being not maintainable and thus becomes void ab initio is legally untenable and also against the settled principle of law. "

remand this issue to the file of the CIT CA) with a direction to admit the appeal and adjudicate the issues raised by the assessee on merits mentioned in ground nos. 2 to 12, if any. For this, CIT CA) may call for remand report, if any, from the AO in accordance with the provisions of the Act. Accordingly, all the grounds raised by the assessee are allowed for statistical purposes.

4. In the result, appeal filed by the assessee is allowed.” 2.2. The facts, in brief, are that the assessee declared total income of Rs.5,18,390/- in her return, filed on 26/10/2005, which was processed under section 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny under CASS, accordingly, notice under section 143(2) and 142(1) of the Act, along with questionnaire were issued to the assessee. The assessee attended the proceedings from time to time and furnished the details as called for as is evidenced from assessment order itself. While framing the assessment, the Ld. Assessing Officer found that the assessee debited Rs.23,660/- on account of telephone/mobile expenses. The telephone was found to be installed at the house of the assessee, thus, such expenses amounting to Rs.8,741/- were held to be not pertaining to the business and thus added back to the income of the assessee. The assessee also debited Rs.64,315/- as conveyance expenses, out of which the Ld. Assessing Officer disallowed Rs.15,000/- for want of verification. The assessee also debited Rs.38,480/- as miscellaneous expenses out of which the amount of Rs.10,000/- was disallowed for want of verification. As per the Ld. Assessing Officer, the gross amount of Rs.35,021/- was received on interest on deposit, which was added back. On appeal before the Ld. Commissioner of Income Tax (Appeal), vide order dated 19/02/2009, so far as, the disallowance with respect to telephone expenses was restricted to 2,366/- and the disallowance of Rs.15,000/- out of conveyance expenses, the addition was deleted. So far as, the ad-hoc disallowance of Rs.10,000/- out of miscellaneous expenses was also deleted.

The addition of Rs.35,021/- as income from other sources, received from deposits was rejected. During rectification order passed under section 154, as per the Revenue was never passed and got time barred. The assessee, before this Tribunal relied upon the decision from Hon'ble jurisdictional High Court Caltex Oil Refining India ltd. vs CIT (202 ITR 375)(Bom.), wherein, the Hon'ble High Court held that the orders giving effect to the direction of the appellate order are maintainable under clause-(c) to section 246 of the Act.

Respectfully, following the aforesaid from Hon'ble jurisdictional High Court, we remand this file to the file of the Ld. Commissioner of Income Tax (Appeal) with a direction to adjudicate the appeal of the assessee and decide on merit.

Thus, the appeal of the assessee is allowed for statistical purposes.

Finally, the appeal of the assessee is allowed for statistical purposes.

This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 11/10/2018.

Sd/- (Joginder Singh) �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 11/10/2018 f{x~{tÜ? P.S /�नजी स�चव आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,