9911796707
TMI Blog2020 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... unal. The relevant contents of the miscellaneous application filed by the assessee are reproduced as under:- Relevant Facts * One Mr. 5 5 Mohla, an ex-employee appointed to secure orders made a claim of Rs. 1,07,55,260 on the Appellant company * In order to settle the dispute out of court, the appellant paid Rs. 75,00,000 towards * Restraining Mr. Mohla from sharing any confidential documents, information, business and trade secrets of the Appellant with any competitor or third party * Withdrawal of civil suit filed before the High Court of Delhi * The ITAT held payment is in nature of commission and since the Appellant failed to deduct TDS u/s 194H the AO has rightly disallowed such expenditure u/s 40(a)(ia) (Para 14, Pg 13 of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saction charges cannot be sustained" * Decision of the coordinate bench in the case of DCIT vs. UPS Jetair Express P Ltd 56 taxmann.com 387 (Mum) not considered while deciding on merit - mistake apparent from record o * Reliance is placed on the following decisions: - Honda Siei Power Products Ltd 295 ITR 466 (SC) Reliance Communication Ltd 183 TTJ 388 (Mum) - Silicon Graphics Systems (I) Ltd 21 SOT 471 (Del) * Ref Para 65, Pg 10 of Fact Sheet - Relying on the decision of the coordinate bench in the case of DCIT vs. UPS Jetair Express P Ltd 56 taxmann.com 387 (Mum) the Appellant also argued that proviso to section 40{a) is retrospective in nature and hence the AO may be directed to verify whether the payee has paid taxes, and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifts which were given to employees, dealers, customers, other business associates, and government officials on festive occasions * The ITAT rejected the ground of the Appellant by holding that the expenses in the nature of gifts and rewards are in the nature of personal expenses and hence cannot be allowed as deductible under section 37(1) of the Income Tax Act 1961. The ITAT also held that mere payment of FBT on such expenses would not discharge the Appellant's obligation to prove such expenses to say that these are incurred wholly and exclusively for the purpose of business. (Para 11, Pg 11 of ITAT Order) Our Plea * Decision of coordinate bench in the case of Hansraj Mathurdas vs ITO (ITA No 2397/Mum/2010) relied upon by the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered while deciding on merit Mistake apparent from record Reliance is placed on the following decisions: - Honda Siel Power Products Ltd 295ITR 466 (SC) Reliance Communication Ltd 183 TTJ 388 (Mum) - Silicon Graphics Systems (I) Ltd 21 SOT 471 (Del) * The Hon'ble Mumbai bench of the Tribunal in the case Agfa India P Ltd vs ACIT 81 taxmann.com 453 (Mum.Trib) following the decision of the Hon'ble Gujarat High Court in the case of Sayaji Iron & Engg Co vs CIT 253 ITR 749 (Guj) held that in case of a corporate entity, no disallowance can be made on account of personal use by the director/employees. 3. The Ld. AR for the assessee referring the order of the Tribunal, insofar as, ground No.5 of appeal submitted that although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make out a case of prima-facie mistake apparent on record from the order of the Tribunal, but what is sought through the miscellaneous application is review the decision rendered by the Tribunal in the given facts and circumstances of the case, which is not permissible u/s 254(2) of the Act. Hence, miscellaneous application filed by the assesee may be rejected. 5. We have heard both the parties and perused the miscellaneous application filed by the assesee, along with order of the Tribunal, dated 07/06/2018 in ITA No. 7619/Mum/2013. We find that the Tribunal has recorded categorical findings, insofar as, disallowances of amount paid to Mr. Mohla, an ex-employee for non deduction of tax at source u/s 194C of the I.T.Act, 1961, on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has recorded its categorical finding that expenditure incurred under the head gifts and other expenses given to employees etc, are in the nature of personal expenses and are not incurred wholly and exclusively for the purpose of business of the assessee. Further, if you go through the fact finding recorded by the Tribunal in light of averments made by the assesee in the miscellaneous application, we find that what is sought through the miscellaneous application is to review the decision rendered by the Tribunal in the given facts and circumstances of the case, which in our considered view is not permissible u/s 254(2) of the I.T.Act, 1961. Therefore, we are of the considered view that the miscellaneous application filed by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
