LATE SHRI HARSHAD S MEHTA THROUGH L//H SMT. JYOTI H MEHTA, MUMBAI V. ASST CIT CEN CIR 23, MUMBAI

ITA 1034/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84577 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 08-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL SPECIAL
• Assessee Lawyers: DHARMESH SHAH
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, M UMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ./I.T.A. NO.1034/MUM/2013 ( ! ' / ASSESSMENT YEAR :2008-09) SMT.JYOTI H MEHTA, LR OF LATE SHRI HARSHAD S MEHTA, 32, MADHULI, 3 RD FLOOR, DR.ANNIE BESANT ROAD, WORLI, MUMBAI-400018 / VS. ASSTT. COMMISSIONER OF INCOME TAX CC-23, 4 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( #$ / APPELLANT) .. ( %&#$ / RESPONDENT) # ./ '( ./ PAN/GIRNO.:ABAPM1848F #$ ) / ASSESSEE BY : SHRI DHARMESH SHAH %&#$ * ) /REVENUE BY: DR.P.DANIEL, SPECIAL COUNSEL + , * -. / DATE OF HEARING : 17.12.2014 / '! * -. /DATE OF PRONOUNCEMENT : 31.12.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 24.12.2012 PASSED BY LD CIT(A)-40, MUMBAI AND IT RE LATES TO THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS URGED THREE GROUNDS BEFORE US. AT THE TIME OF HEARING, THE LD COUNSEL APPEARING FOR THE ASSESSEE DID NOT P RESS THE GROUND NO.1 AND THE SAME IS DISMISSED AS NOT PRESSED. THE GROUND N O.3 IS GENERAL IN NATURE. THE REMAINING GROUND RELATES TO THE CHARGING OF INT EREST U/S 234A, 234B AND 234C OF THE ACT. I.T.A. NO.1034/MUM/2013 3 5. IN THE REJOINDER, THE LD A.R SUBMITTED THAT T HE TAX DEDUCTIBLE AT SOURCE IS REQUIRED TO BE CONSIDERED ONLY IN THE YEAR IN WHICH THE INCOME WAS ASSESSED TO TAX. ACCORDINGLY HE PLEADED THAT THE MATTER OF COM PUTATION OF INTEREST BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. SINCE THE HONBLE BOMBAY HIGH COURT HAS, IN THE CASE OF M/S D IVINE HOLDINGS PVT LTD (SUPRA), HELD THAT THE INTEREST U/S 234A, 234B AND 234C IS CHARGEABLE IN RESPECT OF NOTIFIED ENTITIES ALSO, IN OUR VIEW, THE LD CIT( A) WAS JUSTIFIED IN REJECTING THE CONTENTIONS OF THE ASSESSEE THAT THE ABOVE SAID INT EREST ARE NOT CHARGEABLE IN HIS HANDS. ACCORDINGLY, WE CONFIRM THE ORDER OF LD CIT (A) ON THIS ISSUE. 7. WITH REGARD TO THE PLEA PUT FORTH BY LD A.R FO R SETTING ASIDE THE MATTER OF COMPUTATION OF INCOME, THE LD D.R SUBMITTED THAT TH E TDS DEDUCTIBLE AT SOURCE DURING THE YEAR UNDER CONSIDERATION IS NOT ADJUSTAB LE AGAINST THE TAX LIABILITY OF THE CURRENT YEAR, SINCE THE HONBLE SPECIAL COURT A S WELL AS HONBLE SUPREME COURT HAVE HELD THAT THE TDS AMOUNTS SHALL BE ADJUS TED AGAINST THE TAX LIABILITY OF THE PRIORITY YEARS VIZ., AYS 1992-93 AND 1994-95 . ACCORDINGLY HE SUBMITTED THAT THE ASSESSEE SHALL NOT HAVE ANY TDS FOR ADJUST MENT AGAINST THE TAX LIABILITY OF THE CURRENT YEAR. IN THIS REGARD, THE LD D.R HA S FILED A WRITTEN SUBMISSION AND THE RELEVANT SUBMISSIONS ARE EXTRACTED BELOW:- IT IS SUBMITTED THAT AS PER THE DECISION OF THE HO NBLE SPECIAL COURT, ALL T.D.S FOR SUBSEQUENT ASSESSMENT YEARS TILL THE DIST RIBUTION OF ASSETS SHALL BE DEPOSITED BY THE CUSTODIAN ON THE ACCOUNTS RELEV ANT TO ASSESSMENT YEARS 1992-93 & 1993-94 (PRIORITY YEARS) OR RATHER THE SCAM PERIOD. HENCE NO T.D.S IS AVAILABLE FOR ADJUSTMENT FOR THE RELEVANT PREVIOUS YEARS AND HENCE THERE IS NO NEED TO CONSIDER FOR SETTING ASIDE THE ISSUE AT ALL. HENCE IT IS PRAYED THAT THE SAME MAY KINDLY BE CONF IRMED. NOTE: THE HONBLE SUPREME COURT IN CIVIL APPEAL NO .7572/1999 HAS HELD THAT THE INCOME TAX DEPARTMENT SHALL BE ENTITLED TO APPROPRIATE THE AMOUNTS OF TDS RECEIVED BY IT ONLY TOWARDS THE TAX LIABILITY OF THE NOTIFIED PARTY IN RESPECT OF THE PERIOD 01.04.91 TO 08.06.92 . 8. THUS, ACCORDING TO LD D.R, THE ASSESSEE IS NOT ENTITLED TO CLAIM THE BENEFIT OF TAX DEDUCTIBLE AT SOURCE MENTIONED IN SEC. 209 OF THE ACT. HOWEVER, IN OUR VIEW, THE QUESTION ABOUT ADVANCE TAX LIABILITY U/S 209 OF THE ACT, TAX DEDUCTIBLE AT SOURCE AND CHARGEABILITY OF INTEREST U/S 234A, 234 B AND 234C NEEDS TO BE EXAMINED AT THE END OF THE ASSESSING OFFICER. SINC E THE QUESTION OF TAX