HARSH ESTATE P.LTD, MUMBAI V. DCIT CEN CIR 31, MUMBAI

ITA 1548/MUM/2013

• Counselvise Citation: 154819914 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 23-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 25-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: DHARMESH SHAH
• Keywords: Principle of natural justice
• Section: 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER ITA NO.1548/MUM/2013(A.Y. 2006-07) M/S. HARSH ESTATES PVT.LTD., 32, MADHULI, 3 RD FLOOR, DR.ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI 400018 PAN: AAACH 3480L (APPELLANT ) VS. THE DCIT, CC-31, RANGE- 7, ROOM NO.409, 4 TH FLOOR, AAYKAR BHAVAN, MK MARG, MUMBAI 400020 (RESPONDENT) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : SHRI JE ETENDRA KUMAR DATE OF HEARING : 05/02/2015 DATE OF PRONOUNCEMENT : 05 /02/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-36, MUMBAI DATED 21.12.2012 FOR ASSES SMENT YEAR 2006-07. GROUNDS OF APPEAL READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/S. 250 OF THE ACT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCI PLES OF NATURAL JUSTICE. ITA NO.1548/MUM/2013(A.Y. 2006-07) 2 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS. 93,92 ,469/-, TOWARDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING CALCULATION OF BOOK PROFIT U/S. 115JB AM OUNTING TO RS. 51,40,164/-. 2. GROUND NO.1 & 2 WERE NOT PRESSED BY LD. AR AND I N RESPECT OF GROUND NO.3 & 4, IT WAS SUBMITTED THAT IDENTICAL ISSUES WERE RAISED BY THE ASSESSEE IN THE APPEALS FOR ASSESSMENT YEARS 2004-05 AND 2007-08, W HICH WERE HEARD ON 02/02/2015 AND THUS, THIS MAY CONSIDERED TO BE COVE RED BY THE ORDER OF THE TRIBUNAL PASSED IN RESPECT OF 2004-05 AND 2007-0 8. 3. WE HAVE PASSED AN ORDER ON 02/02/2015 IN RESPEC T OF ASSESSMENT YEAR 2004-05 AND 2007-08 ALONGWITH ASSESSMENT YEAR 1999- 2000, 2005-06 AND 2007- 08. GROUND NO.3 IS COVERED BY THE FOLLOWING OBSERV ATIONS OF THE TRIBUNAL IN THE SAID ORDER: 3. AS IT CAN BE SEEN FROM THE ABOVE GROUNDS OF AP PEAL, THE COMMON ISSUE INVOLVED IN ALL THE APPEALS FILED BY THE ASSESSEE IS REGARDI NG THE LIABILITY TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. THIS ISSUE WA S STATED TO BE COVERED BY THE EARLIER DECISION OF THE TRIBUNAL, AS WHILE DECIDING THIS G ROUND LD. CIT(A) HAS RELIED UPON THE DECISION IN THE CASE OF HITESH S. MEHTA IN ITA NO.7 726/MUM/2010, A.Y. 2005-06 ORDER DATED 26/04/2013 AND IT IS THE CASE OF THE ASSESSE E THAT IN THE CASE OF HITESH S. MEHTA THE TRIBUNAL HAS RESTORED BACK THE ISSUE TO THE FIL E OF AO AND IT IS ALSO THE CASE OF THE ASSESSEE THAT IN ASSESSEES OWN CASE IN RESPECT OF ASSESSMENT YEARS 2002-03, 2008-09, 2000-01, 2001-02, SIMILAR ISSUE HAS BEEN RESTORED B ACK TO THE FILE OF AO. REFERENCE WAS MADE TO THE FOLLOWING DECISIONS OF TRIBUNAL IN AS SESSEES OWN CASE: (1) ASSESSEES OWN CASE IN ITA NO.1035/MUM/2013, A. Y.2002-03 ORDER DATED 08/10/2014. (2) ASSESSEES OWN CASE IN ITA NO.363/MUM/2013, A. Y. 2008-09 ORDER DATED 07/10/2014. (3)IN THE CASE OF SMT.RASILA MEHTA IN ITA NOS. 36 83 & 3684/MUM/2011 FOR A.Y 2000- 01 AND 2001-02 ORDER DATED 28/11/2014. COPY OF ALL THESE ORDERS HAVE BEEN PLACED IN THE PA PER BOOK . ITA NO.1548/MUM/2013(A.Y. 2006-07) 3 ACCORDINGLY, FOLLOWING AFOREMENTIONED ORDER, GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 4. GROUND NO.4 IS COVERED BY THE FOLLOWING OBSERVA TIONS IN THE SAID ORDER: 5. ANOTHER ISSUE RAISED IN THE APPEALS FILED BY T HE ASSESSEE IS REGARDING CALCULATION OF BOOK PROFIT UNDER SECTION 115JB. THIS GROUND WA S ALSO STATED TO BE COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y 2008-09 IN ITA NO.363/MUM/2013 ORDER DATED 7/10/2014, COPY OF WHIC H IS FILED AT PAGES 16 TO 20 OF THE PAPER BOOK. THE RELEVANT OBSERVATION OF THE TRIBUN AL ARE FOUND IN PARA-4 AND ARE REPRODUCED BELOW: 4. THE NEXT GROUND PERTAINS TO CONFIRMING CALCULAT ION OF BOOK PROFIT U/S.115JB OF THE ACT AMOUNTING TO RS.1,25,46,114/-. SINCE, WE H AVE REMANDED THE AFORESAID GROUND I.E. NO.4 TO THE FILE OF THE LD. CIT(A), TH EREFORE, THE GRIEVANCE OF THE ASSESSEE WILL DEPEND UPON THE OUTCOME OF THE DECIS ION TO BE TAKEN WITH RESPECT OF AFORESAID GROUND NO.4. CONSEQUENTLY, THIS GROUND I S CONSEQUENTIAL TO THE ABOVE, THERE IS ALSO ALLOWED FOR STATISTICAL PURPOSES WITH A DIRECTION TO DECIDE IT AFRESH AS PER THE PROVISIONS OF LAW AFTER GIVING FINDING ON T HE CLAIM OF INTEREST THUS THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 5.1 IN THIS VIEW OF THE SITUATION, AFTER HEARING BO TH THE PARTIES , FOLLOWING THE AFOREMENTIONED DECISION OF TRIBUNAL IN ASSESSEES O WN CASE GROUND NO.4 FOR ASSESSMENT YEAR 2004-05 AND GROUND NO.6 FOR A.Y 2007-08 ARE CO NSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. ACCORDINGLY, GROUND NO.4 IS ALSO CONSIDERED TO BE A LLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/02/2015 ! ' #$% 05/02/2015 & ' SD/- SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; #$ DATED 05/02/2015 ITA NO.1548/MUM/2013(A.Y. 2006-07) 4 ()* ()* ()* ()* +*!) +*!) +*!) +*!) / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0& ()$ , , / DR, ITAT, MUMBAI 6. &1 2 / GUARD FILE. $ $ $ $ / BY ORDER, .*) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . $ . ./ VM , SR. PS