DCIT 1(3), MUMBAI V. ZARASTRIAN CO-OPERATIVE BANK LTD, MUMBAI

ITA 1215/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83537 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 25-08-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Assessee Lawyers: S P BULSARA
• Keywords: Reopening of assessment; Tax effect
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 1215/MUM/2011 ASSESSMENT YEAR: 2004-05 DCIT-1(3) R. NO. 540/564, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, NEW MARINE LINES, MUMBAI 400 020 VS. THE ZOROASTRIAN CO-OP BANK LTD. IRON HOUSE, 5 TH FLOOR, ANNIE BESANT ROAD, WORLI, MUMBAI- 400 030 PAN: AAAAZ 0071 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.P. BULSARA REVENUE BY : SMT. PARMINDER DATE OF HEARING : 25.08.2014 DATE OF PRONOUNCEMENT : 25.08.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A) -2, MUMBAI DATED 24.11.2010 FOR THE ASSES SMENT YEAR 2004-05. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOW ING GROUNDS:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF C ASE AND IN LAW, THE LD. (A) ERRED IN QUASHING THE ASSESSMENT RELYING UPON T HE DECISION OF THE HONBLE ITAT IN THE CASE OF ASSESSEE FOR A.Y. 2003-04. THE LD.CIT(A) FURTHER ERRED IN OVERLOOKING THE FACT THAT THE APPEAL AGAINST ORDER OF ITAT FOR A.Y. 2003-04 WAS NOT AUTHORIZED D UE TO LOW TAX EFFECT. 3. BRIEFLY STATED, THE AO ISSUED THE NOTICE U/S 148 TO THE ASSESSEE ON THE GROUND THAT INTEREST ON INCOME TAX REFUND WAS NOT ON ACCOU NT OF BUSINESS ACTIVITY PERTAINING TO BANKING BUSINESS AND THEREFORE, OUGHT TO HAVE BE EN TAXED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES WHICH WAS NOT DONE BY THE ASSESSEE. ACCODINGLY, THE AO PROCEEDED TO ASSESS THE INCOME OF THE ASSESS EE ACCORDINGLY. ON APPEAL, THE LD.CIT(A), BY RELYING ON THE DECISION OF THE TRIBUN AL IN THE ASSESSEES OWN CASE FOR THE A.Y. 2003-04, WHEREIN ON IDENTICAL ISSUE, THE T RIBUNAL HELD THAT REOPENING OF ASSESSMENT ON THIS COUNT WAS NOT JUSTIFIED. CONSEQU ENTLY, THE LD.CIT(A) QUASHED ITA NO. 1215/MUM/2011 THE ZOROASTRIAN CO-OP BANK LTD ASSESSMENT YEAR: 2004-05 2 THE ASSESSMENT ORDER. AGGRIEVED BY THE IMPUGNED ORD ER, THE REVENUE IS IN APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE TRIBUNAL IN THE ASESS EES OWN CASE, IN THE CROSS OBJECTIONS FILED BY THE ASSESSEE IN CO NO. 4/MUM/2010 , AGAINST THE REVENUES APPEAL IN ITA NO. 3878/MUM/2009 FOR THE A.Y. 2003-04, BY RELYING ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. [(2010) 320 ITR 561 (SC)], HAS HELD THAT THE REOPENING OF THE ASSESSME NT ON SIMILAR GROUND WAS NOT PROPER AND HENCE SET ASIDE THE ASSESSMENT ORDER . THE LD.CIT(A) HAS FOLLOWED THE SAID ORDER OF THE TRIBUNAL FOR QUASHING THE REO PENED ASSESSMENT DURING THE YEAR UNDER CONSIDERATION ON SIMILAR SET OF FACTS. IN THI S CONNECTION, IT IS RELEVANT TO STATE THAT THE SAID ORDER OF THE TRIBUNAL IS ONLY ON THE ISSUE OF VALIDITY OF REOPENING THE ASSESSMENT U/S 148 OF THE INCOME TAX ACT AND NOT ON THE ISSUE OF MERIT AS TO THE ADDITION MADE IN THE REOPENED ASSESSMENT. HOWEVER, IN THE PRESENT APPEAL THE REVENUE CONTENDS THAT THEY HAVE NOT PREFERRED THE A PPEAL AGAINST THE SAID ORDER OF THE TRIBUNAL FOR THE A.Y. 2003-04 DUE TO LOW TAX EF FECT. WHEN THE TRIBUNAL HAS HELD THE ISSUE OF VALIDITY OF REOPENING ALONE IN THE A.Y . 2003-04, THE CONTENTION OF THE REVENUE THAT THEY HAVE NOT PREFERRED THE APPEAL AGA INST THE ORDER OF THE TRIBUNAL IS MISCONCEIVED. THEREFORE, WE DO NOT FIND ANY MERIT I N THE APPEAL FILED BY THE REVENUE WHICH DESERVES TO BE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF AUGUST, 2014. SD/- SD/- (N.K. BILLAIYA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 25.08.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR G BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.