HARSH ESTATES P.LTD, MUMBAI V. ASST CIT CEN CIR 31, MUMBAI

ITA 1033/MUM/2013

• Counselvise Citation: 103319914 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 08-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL SPL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B; 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI , , ! '# $ BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO.1035/MUM/2013 % % % % / ASSESSMENT YEAR 2002-03 M/S HARSH ESTATES PVT. LTD. 32,MADHULI, 3 RD FLOOR, DR. ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI-400018 VS. ACIT CC-31, R.NO.409, AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 (APPELLANT) (RESPONDENT) P.A. NUMBER : AAACH3480L . / ITA NO.1033/MUM/2013 % % % % / ASSESSMENT YEAR 2009-10 M/S HARSH ESTATES PVT. LTD. 32,MADHULI, 3 RD FLOOR, DR. ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI-400018 VS. ACIT -CC-31, R.NO.409, AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 (APPELLANT) (RESPONDENT) P.A. NUMBER : AAACH3480L . / ITA NO.3464/MUM/2013 % % % % / ASSESSMENT YEAR 2010-11 M/S HARSH ESTATES PVT. LTD. 32,MADHULI, 3 RD FLOOR, DR. ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, VS. ACIT CC-31, R.NO.409, AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 2 M/S HARSH ESTA TES PVT. LTD. MUMBAI-400018 (APPELLANT) (RESPONDENT) P.A. NUMBER : AAACH3480L ASSESSEE BY : SHRI DHARMESH SHAH REVENUE BY : DR. P. DANIEL SPL. COUNSEL DATE OF HEARING : 08/10/2014 DATE OF PRONOUNCEMENT : 08/10/2014 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDERS DA TED 24/12/2014, 14/12/2012 AND 17/01/2013 RESPECTIVELY OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. THE ASSESSEE RAISED THE FOLLOWING COMMON GROUNDS- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERR ED IN LAW AND IN FACTS IN PASSING THE ORDER U/S 250 OF THE AC T. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERR ED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRE D IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FRO M ATTACHED ASSETS CAN BE ASSED IN THE HANDS OF THE APPELLANT. 4. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERR ED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AM OUNTING TO RS.52,01,922/-(A.Y.2002-03) RS.1,08,03,167/-(A.Y. 2 009-10) AND RS.1,13,23,540/-(2010-11) TOWARDS INTEREST EXPEN DITURE CLAIMED BY THE APPELLANT. 3 M/S HARSH ESTA TES PVT. LTD. 5. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERR ED IN LAW AND IN FACTS IN CONFIRMING CALCULATION OF BOOK PROF IT U/S. 115JB AMOUNTING TO RS.48,44,997/-(A.Y. 2002-03), RS.1,05, 35,378/- (A.Y.2009-10) AND RS.4,14,56,777/-(2010-11). 6. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERR ED IN LAW AND IN FACTS IN CHARGING INTEREST U/S 234A, 234B, A ND 234C OF THE ACT. 2. IN ASSESSMENT YEAR 2010-11 THERE IS A DELAY OF 19 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL FOR WHICH THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY. THE LD. COUNSEL REITERAT ED THE CONTENTS OF THE APPLICATION. THE LD. DR CONTENDED THAT DELAY MAY N OT BE CONDONED. ON CONSIDERATION OF THE REASONS CONTAINED IN THE APPLI CATION AND THE ARGUMENTS AND OTHER CIRCUMSTANCES NARRATED BEFORE U S, WE ARE OF THE CONSIDERED OPINION THAT DELAY OF 19 DAYS DESERVES T O BE CONDONED. ACCORDINGLY, DELAY IS CONDONED. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASS ESSEE SHRI DHARMESH SHAH DID NOT PRESS GROUND NOS. 1 TO 3 & 5 IN THE GROUNDS OF APPEAL TO WHICH THE SPECIAL COUNSEL FOR THE REVENUE HAD ALSO NO OBJECTIONS; THEREFORE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 4. GROUND NO. 4 PERTAINS TO NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS.52,01,922/-(A.Y. 2002-03), RS.1,08,03,167/-(A. Y. 2009-10) AND RS.1,13,23540/-(A.Y. 2010-11) RESPECTIVELY TOWARDS I NTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. IT WAS CONTENDED THAT IDE NTICAL ISSUE WAS DECIDED FOR A.Y. 2000-01 IN THE CASE OF ASSESSEE ITS ELF (ITA NO.5139/M/2012) ORDER DATED 06/11/2013, WHEREIN THE ISSUE WAS SET- ASIDE TO THE FILE OF THE LD. CIT(A) FOR WHICH OUR A TTENTION WAS INVITED TO 4 M/S HARSH ESTA TES PVT. LTD. PAGES 1 TO 3 OF THE PAPER-BOOK. IT WAS ALSO POINTE D OUT THAT IDENTICALLY THE ISSUE WAS DECIDED IN THE CASE OF ZEST HOLDINGS P VT. LTD., RELATED CONCERNS, FOR A.Y. 2009-10 (ITA NO.5216/M/2012) ORDE R DATED 18/08/2014 FOR WHICH OUR ATTENTION WAS INVITED TO P AGES 4 TO 6 OF THE PAPER-BOOK. THIS FACTUAL MATRIX WAS NOT CONTROVERT ED BY THE LD. SPECIAL COUNSEL BEING MATTER OF RECORD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. AS CANVASSED BY THE LD. COUN SEL , WE FIND THAT IDENTICAL ISSUE AROSE BEFORE THE BENCH FOR A.Y. 2000 -01 AND FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S EMINENT HOLDINGS PVT. LTD. (ITA NO. 8200/M/2010 & 8353/M/2010), WHEREIN THE DE CISION OF THE COORDINATE BENCH IN THE CASE OF HITESH S. MEHTA (IT A NOS.7726 & 7727/M/2010) WAS FOLLOWED AND FINALLY THE ISSUE WAS SET-ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION WITH A DIR ECTION TO GRANT A REASONABLE OPPORTUNITY OF BEING HEARD ON THE ISSUE AND THUS WAS ALLOWED FOR STATISTICAL PURPOSES. FOLLOWING THE REASONING C ONTAINED IN THE AFORESAID ORDERS, BEING IDENTICAL FACTS/ISSUE BEFOR E US, WE REMAND THIS ISSUE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUD ICATION. NEEDLES TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, THIS GROUND OF THE ASSESSEE IS ALSO AL LOWED FOR STATISTICAL PURPOSES ONLY. 6. SO FAR AS, CHARGING OF INTEREST U/S 234A, 234B A ND 234C IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE CONTENDE D THAT IT MAY BE SENT TO THE FILE OF THE LD. ASSESSING OFFICER. HOWEVER, THE LD. SPECIAL COUNSEL CONTENDED THAT THE LEVY OF INTEREST IS MANDATORY TH EREFORE IT SHOULD BE 5 M/S HARSH ESTA TES PVT. LTD. DECIDED AGAINST THE ASSESSEE. HOWEVER THE LD. COUN SEL FOR THE ASSESSEE CONTENDED THAT IT MAY BE SENT TO THE ASSESSING OFFI CER FOR ACTUAL CALCULATION PURPOSES ONLY. AGREED, LEVY OF INTERES T IS MANDATORY AND SOMETIMES CONSEQUENTIAL DEPENDING UPON THE FACTS OF EACH CASE. WE NOTE THAT IDENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN T HE AFORESAID CASES THEREFORE FOLLOWING THE REASONING CONTAINED THEREIN , WE DIRECT THE ASSESSING OFFICER TO RECOMPUTED THE INTEREST LIABIL ITY AFTER REDUCING THE AMOUNT OF TAX DEDUCTABLE AT SOURCE AND DECIDE AS PE R THE PROVISIONS OF LAW. WE DIRECT ACCORDINGLY, THUS, THIS GROUND IS A LLOWED FOR STATISTICAL PURPOSES. 6. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F HEARING ON 08/10/2014. SD/- SD/- N.K.BILLAIYA JOGINDER SINGH ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI, DATED -08/10/2014 . ./ SHEKHAR. P.S. '& '& '& '& ' '' ' () () () () *%) *%) *%) *%) / COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. (-+, / THE RESPONDENT. 3. . ( ) / THE CIT(A)- 4. . / CIT 5. /0 () , , / DR, ITAT, MUMBAI 6 M/S HARSH ESTA TES PVT. LTD. 6. 01 2 / GUARD FILE. '& '& '& '& / BY ORDER, -) () //TRUE COPY// L 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI