WELLWORTH DEVELOPERS,MUMBAI vs. ASST CIT CEN CIR 23, MUMBAI

PDF · subscribers
ITA 5623/MUM/2014Status: DisposedITAT Mumbai01 June 2016AY 2011-124 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the payment made to BMC was compensatory in nature and not penal. Following a co-ordinate bench's decision in the assessee's own case, the Tribunal allowed the expenditure.

What were the facts?

The assessee paid Rs. 3,61,000/- to the Brihanmumbai Municipal Corporation (BMC). The Assessing Officer disallowed this payment, treating it as penal in nature. The CIT(A) upheld this disallowance.

What were the issues?

Whether the payment made to BMC is compensatory or penal in nature and thus allowable as a business expenditure under Section 37(1).

Which sections of the Income-tax Act were involved?

Section 37(1)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “G” BENCH, MUMBAI

Before: SHRI B.R.BASKARAN, AM & SHRI AMARJIT SINGH, JM

For Appellant: Shri R. Muralidhar
Hearing: 28.03.2016Pronounced: 01.06.2016

Assessee by: Shri R. Muralidhar Department by: Shri S. Senthil Kumaran सुनवाई क" तार"ख / Date of Hearing: 28.03.2016 घोषणा क" तार"ख /Date of Pronouncement: 01.06.2016 आदेश / O R D E R PER AMARJIT SINGH, JM:

This is an appeal filed by the assessee against the order dated 30.06.2014 passed by the learned Commissioner of Income Tax (Appeal) 40, Mumbai [hereinafter referred to as the learned “CIT(A)”] relevant to the A.Y.2011-12. A.Y.2011-12

2.

The assessee has raised the following grounds of appeal:-

1. The learned A.O. has erred in law and facts in disallowing payment of BMC charges of Rs.3,61,000/- by treating it as penal in nature as per Explanation to section 37(1) of the Act and not allowing same u/s.37(1) of the Act by ignoring the fact that the same were compensatory in nature and laid out wholly and exclusively for the purpose of business and not for any purpose which is an offence or which is prohibited by law and the Honorable Commissioner of Income Tax (Appeals) has erred in confirming the said disallowance by the learned A.O.

3.

The assessee filed the return of income on 24.09.2011 declaring total income to the tune of Rs.64,41,798/-. The case was selected for scrutiny by issuance of notice u/s. 143(2) of the Income Tax Act, 1961 ( in short “the Act”) on 11.09.2012, which was duly served upon the assessee. Thereafter, further notices u/s.142(1) of the Act were issued on 25.06.2013 and 08.10.2013 which were also duly served upon the assessee. During the course of assessment, it was found that the assessee had paid an amount of Rs.3,61,000/- as penalty or fees to Brihanmumbai Municipal Corporation (BMC) during the year. Since the said penalty was not allowable, therefore the said amount was added to the income of the assessee and subjected to tax. Feeling aggrieved with this order, assessee filed an appeal before learned CIT(A) and the learned CIT(A) also dismissed the appeal of the assessee by upholding the action of the Assessing Officer with regard A.Y.2011-12 to the addition of an amount of Rs.3,61,000/-. Thereafter the assessee filed the present appeal before us.

4.

The assessee has challenged the addition of Rs.3,61,000/- which was paid as penalty. The representative of the assessee has argued that an amount paid to BMC to the tune of Rs.3,61,000/- was compensatory in nature therefore the same is not liable to be treated as penal in nature as per explanation to section 37(1) of the Act. In support of this contention the learned representative of the assessee has also placed reliance upon the order passed in his own case decided by the Income Tax Appellate Tribunal, in dated 15.12.2014 for the A.Y.2009-10. However, on the other hand the learned representative of the department relied upon the order passed by the learned CIT(A). Order dated 15.12.2014 passed by the Income Tax Appellate Tribunal for the A.Y.2009-10 perused in which the Hon’ble ITAT did not consider the said amount penal in nature. Since in the assessee’s own case the co-ordinate bench of the ITAT has taken the view that such kind of payment by the assessee to the BMC is not panel in the nature and does not fall within the purview of section 37(1) of the Act. Therefore in the said circumstances respectfully following the judgment passed by the co-ordinate bench, we are of the view that the said amount has been paid wholly for the business purpose hence liable to be allowed as expenditure.

5.

Accordingly the appeal filed by the assessee is hereby allowed. A.Y.2011-12

Order pronounced in the open court on 1st June, 2016. (B.R.BASKARAN) (AMARJIT SINGH) लेखा सद"य / ACCOUNTANT MEMBER "या"यक सद"य/JUDICIAL MEMBER मुंबई Mumbai; "दनांक Dated : 1st June, 2016 MP MP MP MP

More judgments on Section 37(1)

All 6,995 judgments and leading authorities on Section 37(1) →

Recent GST High Court judgments

Search GST case law →