DCIT CC 23, MUMBAI V. PRATIMA MEHTA, MUMBAI

ITA 1607/MUM/2011

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9276 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 04-03-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 24-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PERMANAND J
• Section: 234B; 147; 144

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - C BENCH. , , BEFORE S/SH.VIJAY PAL RAO, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.1607/MUM/2011, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-1999-2000 A CIT CC 23, R.NO. 409, AAYAKAR BHAVAN, M.K.MARG, MUMBAI-400020 VS SMT. PRATIMA MEHTA 32, MADHULI, DR. A.B.ROAD, WORLI, MUMBAI-400018 PAN:ABNPM8226G ( #$ / APPELLANT) ( %&#$ / RESPONDENT) /. ITA NO.1387/MUM/2011, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-1999-2000 SMT. PRAT IMA H. MEHTA 32, MADHULI, DR. A.B.ROAD, WORLI, MUMBAI-400018 VS D CIT CC 23, R.NO. 409, AAYAKAR BHAVAN, M.K.MARG, MUMBAI-400020 !'( !'( !'( !'( ) ) ) ) / ASSESSEE BY :SHRI DHARMESH SHAH & DHAVAL SHAH * ) / REVENUE BY : SHRI PERMANAND J. ! ! ! ! * ** * (+ (+ (+ (+ / DATE OF HEARING : 04.03.2015 ,-' * (+ / DATE OF PRONOUNCEMENT : 11-03-2015 ! ! ! ! 1961 * ** * 254(1) (.( (.( (.( (.( / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! : CHALLENGING THE ORDER DATED 30.12.2010 OF THE CIT(A )-40, MUMBAI, THE ASSESSEE AND THE ASSESSING OFFICER (AO) HAVE FILED CROSS APPEALS FO R THE YEAR UNDER CONSIDERATION.FOLLOWING ARE THE GROUNDS OF APPEAL, FILED BY THE ASSESSEE: 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN PASSING THE ORDER U/S. 250 OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) OUG HT TO HAVE APPRECIATED THAT THE REOPENING OF THE ASSESSMENT U/S 144 R.W.S. 147 OF THE ACT IS INV ALID AND ILLEGAL. 3. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM THE ATTACHED ASSET S CAN BE ASSESSED IN THE HANDS OF THE APPELLANT. 4.THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS.4,61,99,756/- T OWARDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO ADD TO, ALTER, AMEND AND/ OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. ITA NO. 1607/MUM/2011 THE AO HAS FILED FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, WHETHER THE CIT (A) ERRED IN RESTRICTING DEBENTURE INTEREST AT RS.28,80,695/-,AS AGAINST ASSESSED INCOME OF RS. 47,64,272/-, WITHOUT APPRECIATING THE FACT THAT THE SAID DEBENTU RE CARRIED FIXED RATE OF INTEREST AND THERE WAS NO CHANGE IN THE DEBENTURE CARRIED FIXED RATE OF INTER EST AND THERE WAS NO CHANGE IN THE DEBENTURE HOLDING POSITION NOR ANY DEBENTURES WERE REDEEMED T ILL A.Y. 1999/2000. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THAT LEGAL SANCTITY OF LAW, THE INTEREST CHARGEABLE U/S. 234A, 2348 & 234C IS NOT ONLY CONSEQUENTIAL BUT IS MANDATORY IN NATURE. ITA/1387MUM/2011-PRATIMA MEHTA,1999-00 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THAT THE SPECIAL COURT ACT, 1992 HAS NOT RULED OUT THE PROVISIONS OF SECTION 234A, 2348 & 234C BEING NOT APPLICABLE TO THE NOTIFIED PERSONS OR THE Y ARE EXEMPT FROM THE LIABILITY OF PAYMENT OF INTEREST UNDER THESE SECTION OF INCOME-TAX ACT, 196 1. 4. THE APPELLANT CRAVES TO LEAVE, TO ADD, TO AMEND AND 1 OR TO ALTER ANY OF THE GROUNDS OF APPEAL, IF NEED BE. 5. THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROU ND STATED ABOVE, THE ORDER OF THE CIT(A) - 40, MUMBAI MAY BE SET ASIDE AND THAT OF THE ASSESSING O FFICER RESTORED. 2. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE (AR) OF THE ASSESSEE DID NOT PRESS GROUNDS OF APPEAL NO.1 TO 3.HENCE, SAME S TAND DISMISSED AS NOT PRESSED. 3. GROUND NO.4 IS ABOUT LIABILITY OF INTEREST EXPENDIT URE,AMOUNTING TO RS. 4.61 CRORES.THE AR STATED THAT THE FIRST APPELLATE AUTHORITY (FAA)HAD DECIDED THE ISSUE AGAINST THE ASSESSEE FOLLOWING THE ORDER OF HITESH S. MEHTA FOR THE ASSE SSMENT YEAR (AY.) 2005-06,THAT THE H BENCH OF THE MUMBAI TRIBUNAL,VIDE ITS ORDER,DATED 26.04.2 013(ITA 7726 & 7727/M/ 2010 & ITA 7498 &7732/M/2010-A.Y.S.2005-06 AND 2006-07 HAD RESTORED THE ISSUE BACK TO THE FILE OF THE FAA FOR FRESH ADJUDICATION.DEPARTMENTAL REPRESENTATIVE(DR)A LSO AGREED THAT MATTER HAS BEEN REMANDED BACK TO THE FAA BY THE TRIBUNAL IN THE CASE OF HITE SH S.MEHTA. 4. WE HAVE PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE TRIBUNAL HAD BY ITS ORDER,DATED 26. 04.2013(SUPRA),HAD REMITTED BACK THE MATTER,IN CASE OF HITESH S.MEHTA,FOR FRESH ADJUDICA- TION.RESPECTFULLY FOLLOWING THE SAME,WE RESTORE THE ISSUE TO THE FILE OF THE FAA FOR RE-ADJUDI - CATION,WHO WOULD DECIDE THE ISSUE,AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE.GROUND NO.4 IS DECIDED IN FAVOUR OF THE AS SESSEE,IN PART. ITA NO. 1607/MUM/2011: 5. NOW,WE WILL TAKE UP THE APPEAL FILED BY THE AO.FIRS T GROUND OF APPEAL IS ABOUT INTEREST INCOME ON DEBENTURES.DURING THE COURSE OF HEARING BEFORE U S THE REPRESENTATIVES OF BOTH THE SIDES STATED THAT IDENTICAL ISSUE HAD ARISEN IN THE AY.1994-95(I TA/1948/MUM/2013,DATED 10. 06.2014)ALSO AND THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE AO.REFERENCE WAS MADE TO PAGE 6-12 OF THE PAPER BOOK.WE FIND THAT THE AO HAD RAISED THE SIMILAR GROUND FOR THE AY.1994- 95.DECIDING THE APPEAL THE TRIBUNAL IN THAT AY.,HEL D AS UNDER: 12.AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE MENT IONED THAT THE 2 ISSUES RAISED IN GROUND NOS.1 TO 6 RELATING TO THE ADDITION ON ESTIMATION OF DIVI DEND INCOME AND DEBENTURE INTEREST INCOME ARE COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF HITESH S. MEHTA VS. DCIT VIDE ITA NO.5587 TO 5589/M/2011 AND OTHERS DATED 12.6.2013 FOR AY 1994- 95 AND OTHERS. IN THIS REGARD, LD COUNSEL BROUGHT OUR ATTENTION TO THE CONTENTS OF PARA NOS. 7.1 TO 7.6 OF THE SAID TRIBUNALS ORDER AND DEMONSTRATED THE FACT THAT THE ISSUES ADJUDICATED B Y THE TRIBUNAL ARE IDENTICAL AND THE TRIBUNAL HAS ALLOWED THE CLAIMS OF THE ASSESSEE IN HIS FAVOU R.FOR THE SAKE OF COMPLETENESS OF THE THIS ORDER, WE REPRODUCE THE SAID PARA NOS. 7.1 TO 7.6 OF THE T RIBUNALS ORDER (SUPRA) WHICH READ AS UNDER: 7.1.FOR THE ASSESSMENT YEAR 1994-95, GROUND NOS. A , B & C OF GROUND NO.1 AND FOR ASSESSMENT YEAR 1995-96, GROUND NOS.1 TO 3 ARE COMMON, WHICH ARE AG AINST IN HOLDING THAT THE DEJURE OWNER OF THE SHARE ALONE IS ENTITLED TO THE DIVIDEND DECLARED BY A COMPANY,THOUGH THE ASSESSEE COMPANY MIGHT BE DEFACTO OWNER OF SHARE BUT HAS NO RIGHT TO RECEI VE THE DIVIDEND FROM THE COMPANY UNLESS IT IS THE REGISTERED SHAREHOLDER OF THE COMPANY. 7.2.THE SUCCINCT FACTS OF THE CASE ARE THAT THE AO MADE ADDITION OF RS. 1,60,64,916/- FOR ASSESSMENT YEAR 1994-95 ON ACCOUNT OF ESTIMATION OF DIVIDEND INCOME.THE AO OBSERVED THAT THE DIVIDEND IS CALCULATED ON THE BASIS OF THE PUBLISHE D RATES OF DIVIDEND/INTEREST OF THE RELEVANT COMPANIES, THE INCOME SHOWN AS PER THE TDS CERTIFIC ATES AVAILABLE ON RECORD, OR THE CREDIT IN THE BANK ACCOUNT.THE HIGHER OF THE THREE ARE TAKEN AS D IVIDEND INCOME.IN DEFENSE, THE ASSESSEE SUBMITTED THAT THE ADDITION MADE BY THE AO IS PUREL Y ON ESTIMATION BASIS.THE ASSESSEE FILED THE DETAILED SUBMISSION EXPLAINING THE INCORRECTNESS IN THE DETERMINATION OF THE INCOME BY THE AO.THE ASSESSEE ALSO FILED DETAILED SCRIP WISE BREAKUP OF THE DIVIDEND DETERMINED BY THE AO AND ITA/1387MUM/2011-PRATIMA MEHTA,1999-00 3 EXPLAINED THE FALLACY IN THE SAID WORKING OF THE AO .IT WAS ALSO ARGUED THAT THE ESTIMATION OF DIVIDEND INCOME WAS PURELY ARBITRARY AND BUSINESS.R ELIANCE WAS PLACED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. AATUR HOLDINGS PVT.LTD REPORTED IN 302 ITR 190, WHEREIN ON IDENTICAL FACTS, IT WAS HELD THAT THE DI VIDEND INCOME CANNOT BE ASSESSED ON ESTIMATION BASIS AND THE INCOME CAN BE TAXED ONLY IN THE HANDS OF THE REGISTERED HOLDERS. 7.3.AFTER CONSIDERING THE ORDER OF THE AO AND THE S UBMISSION MADE BY THE ASSESSEE , LD CIT (AS) NOTICED THAT THE ISSUE OF DIVIDEND AND DEBENTURE IN TEREST WAS REMANDED TO THE FILE OF THE AO FOR VERIFICATION, TO PROVIDE THE BREAKUP OF DIVIDEND AN D DEBENTURE INTEREST INCOME UPON NECESSARY VERIFICATION IN THIS REGARD. IN THE REMAND PORT DA TED 14.6.2011, THE AO HAS STATED THAT THE INCOME WAS DETERMINED BY THE AO SINCE THE ASSESSEE HAD NOT FILED THE EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE REJOINDER, THE ASSE SSEE SUBMITTED THAT THE ADDITION CANNOT BE LEGALLY MADE ON ESTIMATION BASIS IN THE LIGHT OF TH E DECISION OF THE BOMBAY HIGH COT IN THE CASE OF AATUR HOLDINGS PVT LTD (SUPRA) AND, HENCE, THE ADDI TION IS INCORRECT ON THE FACT OF IT.FURTHER,DETAILED SUBMISSIONS WERE ALSO FILED.THE REAFTER,CONSIDERING THE SUBMISSION AND THE REJOINDER,LD CIT (A) FOUND THAT THE ISSUE IS SQUARE LY COVERED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF AATUR HOLDINGS PVT LTD (SUPRA). THE RATIO OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IS ALSO REPRODUCED IN THE ORDER OF THE LD CIT (A) AT PAGES 3 & 4. AFTER CONSIDERING THE RATIO OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT, LD CIT (A) NOTICED THAT THE HONBLE HIGH COURT HAS DISAGREED WITH THE FINDINGS OF THE AO THAT IN RESPECT OF THE CATEGORIES OF THE OWNERSHIP OF THE SHARES VIZ; NON- DELIVERY OF SHARES, SHARES NOT REGISTERED, SHARES HELD IN BENAMI AND SHARES WHICH ARE LOST OR STOLEN; THE OWNERSHIP OF THE SHARES ALWAYS BELONGS TO THE ASSESSEE AND HENCE THE ASSESSEE WAS LIABLE TO T AX ON DIVIDEND DECLARED BY THE COMPANIES. IT WAS ALSO OBSERVED BY THE HONBLE HIGH COURT THAT ME RELY BECAUSE THE ASSESSEE HAS PURCHASED THE SHARES OR HE IS FOUND TO HAVE BEEN HOLDING SHARES I N SOME COMPANIES, IT CANNOT BE SAID THAT THE DIVIDEND INCOME ACCRUED TO THE SAID ASSESSEE, IF TH E ASSESSEE IS NOT RIGHTFUL OWNER OF THE SHARES. IT WAS ALSO HELD BY THE HONBLE JURISDICTIONAL HIGH CO URT THAT THE DIVIDEND CAN BE TAXED ONLY IN THE HANDS OF THE REGISTERED SHAREHOLDER AND HENCE, IF T HE ASSESSEE IS NOT THE REGISTERED SHAREHOLDER, NO INCOME CAN BE TAXED IN RESPECT OF THE DIVIDEND DECL ARED ON THESE SHARES. AFTER ANALYZING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT A ND THE FACTS OF THE PRESENT CASE, LD CIT (A) FOUND THAT THE ISSUE IS SQUARELY COVERED BY THE RAT IO OF DECISION IN THE CASE OF AATUR HOLDINGS PVT LTD (SUPRA).ACCORDINGLY, HE DELETED THE ADDITION.LD CIT (A) BY FURTHER OBSERVING THAT SINCE THE ASSESSEE HAS OFFERED DIVIDEND INCOME ON HIS REGISTE RED HOLDINGS AT RS.1,00, 98, 386/-,THEREFORE, THE AO WAS DIRECTED TO ASSESS THE INCOME FROM DIVIDEND AT RS.1,0,98,380/- AFTER MAKING DUE VERIFICATION IN THIS REGARD. 7.4.LD DR PLACED RELIANCE ON THE ORDER OF THE AO ON THIS ISSUE. 7.5.ON THE OTHER HAND, LD COUNSEL OF THE ASSESSEE P LACED RELIANCE ON THE ORDER OF THE CIT (A).IT WAS SUBMITTED THAT THE HONBLE JURISDICTIONAL HIGH COURT IN ANOTHER CASE RELATING TO THE SAME GROUP OF ASSESSEE I.E., IN THE CASE OF M/S.PALLAVI HOLDING PVT LTD IN APPEAL NO.520/ 2007 IN NOM NO.1290/2007,DATED 12.3.2008, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION OF THE SAME HIGH COURT I.E., IN THE CASE O F AATUR HOLDINGS PVT LTD (SUPRA).IT WAS FURTHER SUBMITTED THAT THIS DECISION OF THE HONBLE BOMBAY HIGH COURT HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT VIDE ORDER DATED 1.8.2011 IN SPECIAL LEAVE TO APPEAL (CIVIL) NO(S). 2922/2008.COPIES OF THESE ORDERS WERE ALSO FILED. ACCORDINGLY, IT WAS SUBMITTED THAT THE ISSUE IS NOW SQUARELY COVERED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT. 7.6.AFTER CONSIDERING THE SUBMISSION AND PERUSING T HE MATERIAL ON RECORD, WE FOUND NO INFIRMITY IN THE FINDINGS OF THE LD CIT (A), WHO ALLOWED THE ISS UE IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF AATUR HOLDINGS PVT LTD (SUPRA).THIS DECISION HAS ALSO BEEN CONFIRMED AGAIN BY THE HONB LE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. PALLAVI HOLDING PVT. LTD (SUPRA), WHICH HAS BE EN CONFIRMED BY THE HONBLE SUPREME COURT.THE FINDING OF THE LD CIT (A) REMAINED UNCONT ROVERTED AS NO OTHER MATERIAL WAS BROUGHT ON RECORD TO HOLD THAT THE FINDING OF THE LD CIT (A) I S NOT CORRECT. ACCORDINGLY,WITHOUT GOING INTO DETAIL FURTHER, WE CONFIRM THE ORDER OF THE CIT (A) ON THIS ISSUE. 13.FROM THE ABOVE,IT IS EVIDENT THAT THE ESTIMATION OF DIVIDEND INCOME AND DEBENTURE INTEREST INCOME ARE THE ISSUES UNDER CONSIDERATION BEFORE TH E TRIBUNAL AND THE SAID ORDER OF THE TRIBUNAL(SUPRA)DATED 12.6.2013 WAS RELIED ON BY THE AO FOR MAKING ADDITIONS IN THE ASSESSEES ITA/1387MUM/2011-PRATIMA MEHTA,1999-00 4 CASE.RELYING ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PALLAVI HOLDINGS PVT LTD VS. DCIT VIDE ITA NO.8599/M/2010, DATED 17. 7.2013 AND M/S. AATUR HOLDINGS PVT LTD, 302 ITR 190 (SUPRA),THE TRIBUNAL HELD THAT SUCH EST IMATIONS ARE UNSUSTAINABLE IN LAW ON THE GIVEN FACTS OF THE CASE. ON PERUSAL OF THE SAME, WE FIND THE SAID DECISION IS RIGHTLY APPLICABLE TO THE ISSUES RAISED IN THE PRESENT CASE VIDE GROUND NOS.1 TO 6. CONSIDERING THE SAME, WE ARE OF THE OPINION THAT THE CIT (A) HAS RIGHTLY GRANTED THE RE LIEF AND THEREFORE, THE SAME DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY,GROUND NOS. 1 TO 6 ARE RA ISED BY THE BY THE REVENUE ARE DISMISSED. RESPECTFULLY,FOLLOWING THE ABOVE DECISION OF THE TR IBUNAL FOR THE AY.1994-95,WE DECIDE GROUND NO.1 AGAINST THE AO. 6. GROUND NO.2 & 3 ARE ABOUT LEVY OF INTEREST U/S.234 OF THE ACT.REPRESENTATIVES OF BOTH THE SIDES AGREED THAT THE IDENTICAL ISSUE HAS BEEN DECIDED IN GROUP CASES.WE FIND THAT IN ONE OF THE GROUP CASES OF HARSHAD MEHTA I.E.TOPAJ HOLDINGS P.LTD.(IT A 2146/MUM/2013-AY-2001 -02,DATED 18.06.2014) HAD HELD AS UNDER: 3. NEXT GROUND OF APPEAL IS ABOUT LEVY OF INTEREST U/S . 234 OF THE ACT.BEFORE US, AR STATED THAT THE ASSESSEE WAS A NOTIFIED ENTITY,THAT THE PROVISIONS OF S. 234A, 234B AND 234C OF THE ACT WERE DEEMED TO HAVE COMPLIED WITH,THAT THE ASSETS WERE ALREADY IN ATTACHMENT OF THE CUSTODIAN APPOINTED UNDER THE PROVISIONS OF THE SPECIAL COURTS ACT,THAT THE T RIBUNAL IN THE CASE OF THE APPELLANT AND SEVERAL OTHER ENTITIES HAD HELD THE VIEW IN FAVOUR OF THE A PPELLANT,THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIVINE HOLDINGS PVT. LTD. AND CASCADE HOLDI NGS PVT. LTD. HAD HELD THAT THE PROVISIONS OF SECTIONS 234A,234B AND 234C OF THE ACT WERE MANDATO RY AND WERE APPLICABLE TO THE NOTIFIED ENTITIES ALSO,THAT THE ASSESSEE WAS IN THE PROCESS OF FILING AN APPEAL AGAINST THE SAID ORDER BEFORE THE HONBL E SUPREME COURT,THAT THE INCOME EARNED IN THE YEAR UN DER CONSIDERATION WAS SUBJECTED TO PROVISIONS OF TDS,THAT THE CHARGEABILITY OF THE SECTION 234A,234B AND 234C OF THE ACT SHOULD BE AFTER CONSIDERING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE ON THE INCOM E ASSESSED.THE APPELLANT RELIES IN THIS REGARD ON THE FOLLOWING DECISIONS. HE RELIED UPON THE CASES O F MOTOROLA INC. V. DCIT [95 ITD 269 (DEL.(SB)], SEDCO FORES DRILLING CO. LTD. [264 ITR 320],NGC NET WORK ASIA LLC [313 ITR 187],SUMMIT BHATACHARYA [ 300 ITR (AT) 347 (BOM)(SB)], VIJAL GO PAL JINDAL [ITA NO. 4333/DEL/2009] & EMILLO RUIZ BERDEJO [320 ITR 190 (BOM)].DR RELIED UPON THE CASES OF DEVINE HOLDINGS PVT. LTD. 3.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT IN THE CASE OF DEVINE HOLDINGS PVT. LTD. HONBLE BOMBAY HIGH CO URT HAS HELD THAT PROVISIONS OF SECTION 234A, 234B AND 234C WERE APPLICABLE TO THE NOTIFIED PERSO N ALSO.THEREFORE, UPHOLDING THE ORDER OF THE FAA TO THAT EXTENT,WE HOLD THAT PROVISIONS OF SECTION 2 34 OF THE ACT ARE APPLICABLE.AS FAR AS CALCULATION PART IS CONCERNED,WE FIND MERITS IN THE SUBMISSION MADE BY THE ASSESSEE.THEREFORE, WE ARE RESTORING BACK THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJU DICATION WHO WOULD DECIDE THE ISSUE AFTER CONSIDERI NG THE AMOUNT TAXED DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED AND AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. RESPECTFULLY,FOLLOWING THE SAME WE HOLD THAT PROVIS IONS OF SECTION 234 ARE APPLICABLE IN THE CASE UNDER CONSIDERATION.THE AO IS DIRECTED TO CALCULATE THE INTEREST,AS HELD IN THE ABOVE DECISION.ACCORDINGLY,WE DECIDE GROUND NO.2 &3 IN FA VOUR OF THE AO,IN PART. AS A RESULT,APPEALS FILED BY THE AO AND THE ASSESSEE STAND PARTLY ALLOWED. 1(2 !'( + 3 !'( 4 5 * .6 7 /(2 8 * ( 9:. ORDER PRONOUNCED IN TH E OPEN COURT ON 11TH, MARCH,2015 . SD/- SD/- ( / VIJAY PAL RAO) ( / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, ? , 4. THE CONCERNED CIT / > ? 5. DR C BENCH, ITAT, MUMBAI / @. %(! , . . . 6. GUARD FILE/ . 1 &( &( &( &( %( %(%( %( //TRUE COPY// /! / BY ORDER, A / 9 DY./ASST. REGISTRAR , /ITAT, MUMBAI.