Income Tax Appellate Tribunal - Mumbai
Meru Impex, Mumbai vs Department Of Income Tax on 21 June, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "B" MUMBAI
BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER
AND
SHRI RAJENDRA, ACCOUNTANT MEMBER
ITA No.5606/Mum/2010
Assessment Year 2007-08
The Deputy Commissioner M/s. Meru Impex,
of Income Tax 15(1), 15, Osman Manzil,
R.No. 104, 1st Agiary Lane,
Matru Mandir, Vs. Mumbai-400 003.
1st Floor,
Tardeo Road, PAN: AAAFM 6289 K
Mumbai - 400 007.
(Appellant) (Respondent)
Revenue by : Shri P.C. Maurya
Assessee by : NONE
Date of hearing : 21-06-2012
Date of pronouncement : 27-06-2012
ORDER
PER RAJENDRA, A.M.
Solitary Ground of Appeal filed by the Assessing officer (AO) against the order dtd. 30.04.2010 of the CIT (A)-26, Mumbai reads as under :
"On the facts and circumstances of the case, the learned CIT(A) erred in holding that the co-ordination charges or remittances paid to 2 ITA No.5606/Mum/2010 M/s. Meru Impex, foreign coordinator, Mr. Suresh Bafna, amounting to Rs. 1,56,27,500/- is allowable as Business Expenditure ignoring the fact that the assessee has not adduced any evidence of services rendered by the assessee."
2. The brief facts of the case are that during the year under consideration the Appellant firm was exporting knit-wears and woven- garments to USA, Panama, Mexico etc. and achieved an export turnover of Rs. 51,71,90,036/-earning net profit of Rs. 79,97,829/-. Mr. Suresh Bafna, sole representative of M/s. Jainco Garments, 35, Fairway Trail, Moreland Hills, Ohio, USA, was paid coordinating charges amounting to US $ 3,50,000/- as per the agreement entered between the Appellant firm and Mr. Suresh Bafna. He was coordinator for the assessee for last ten years. As per the agreement Mr. Suresh Bafna had to bear all the expenses like salary to his staff, traveling expenses, all sort of communication expenses, management administration and business promotion expenses. For these payments the Appellant firm had obtained permission from RBI through its bankers, the Lakshmi Vilas Bank Ltd. and subsequently the Appellant firm had made an application in O.B.R. form to RBI and the RBI has granted the permission on the condition that the payments to the coordinator shall be made from E.E.F.C. A/c. Appellant firm had complied with the terms and conditions, so prescribed in the Agreement. Following the earlier years orders Assessing officer (AO) disallowed the said expenditure for the AY under consideration also. Assessee filed an appeal before the First Appellate Authority(FAA). He held that same issue was decided in favour of the assess for the AYs. 2005-06and 2006-08. He found that for the AYs. 2001-02 to 2004-05 same additions made by the then AOs were deleted by the FAAs. In these circumstances he allowed the claim made by the assessee.
3. Before us (DR) relied upon the order of the AO. (AR) submitted that F Bench of ITAT, Mumbai vide its order dtd. 07.03.2012 for the AY. 2006-07 (ITA No.5493/Mum/2009) had restored the matter to FAA for limited purposes of verification. We have perused the said order of the coordinating bench. It is found that while deciding the appeal, 'F' bench had relied upon the order earlier years passed by the ITAT for the AYs.2001-02 to 2004-05.
4. As the issue under consideration is identical to that of earlier AYs. decided by the Tribunal, so respectfully following the said decisions, we also restore the issue to FAA for a limited purpose of verifying the nature of services rendered. If the nature of services are established, then no disallowance can be made because the payment is not chargeable to tax in India at all. In such an event the 3 ITA No.5606/Mum/2010 M/s. Meru Impex, applicability of Article 15 of the India USA DTAA would also not be material.
Appeal filed by the AO stands partly allowed for statistical purposes.
Order pronounced in the open court on 27th June, 2012.
Sd/- Sd/-
(B.R. MITTAL) (RAJENDRA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai,
Date 27th June, 2012
TNMM
Copy to:
1. Assessee
2. Respondent
3. The concerned CIT (A)
4. The concerned CIT
5. DR "B" Bench, ITAT, Mumbai
6. Guard File
(True copy)
By Order
Asst. Registrar,
Income Tax Appellate Tribunal,
Mumbai Benches, Mumbai