ZEST HOLDINGS P.LTD, MUMBAI V. ACIT CEN CIR 31, MUMBAI

ITA 2137/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84105 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 18-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIAL
• Keywords: Opportunity of being heard
• Section: 234B; 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & VIVEK VARMA , J M ITA NO. 1465 / MUM/20 1 1 ( ASSESSMENT YEAR : 200 6 - 0 7 ) M/S ZEST HOLDINGS PVT. LTD., 32, MADHULI, DR. A.B.ROAD, WORLI, MUMBAI - 400 018. VS. DCIT, CC - 31, MUMBAI . PAN/GIR NO. : A AACZ 0443 M ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO. 2136,92,2137&2138/ MUM/20 1 3 ( ASSESSMENT YEAR S :200 1 - 02,2008 - 09,2002 - 03& 2003 - 04 ) M/S ZEST HOLDINGS PVT. LTD., 32, MADHULI, DR. A.B.ROAD, WORLI, MUMBAI - 400 018. VS. A CIT, CC - 31, MUMBAI. PAN/GIR NO. : A AACZ 0443 M ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI DHARMESH SHAH /REVENUE BY : DR. P. DANIAL. DATE OF HEARING : 10 TH NOVEMBER , 201 4 DATE OF PRONOUNCEMENT 12 TH NOVEMBER , 201 4 O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR A.YS. 2006 - 07 2001 - 02,2008 - 09,2002 - 03 & 2003 - 04 . 2 . COMMON GROUNDS HAVE BEEN TAKEN IN ALL THE YEARS UNDER CONSIDERATION, THEREFORE, ALL THE APPEALS WERE HEARD TOGETHER AND ARE NOW DECIDED BY THIS CONSOLIDATED ORDER. ITA NO. 1465/11 , ITA NOS.2136,92,2137&2138/13 2 3 . ITA NO.1465/MUM/2011(AY:2006 - 07 ) : IN THIS APPEAL GROUNDS NO. 1 TO 3 WERE N OT PRESSED, THEREFORE, THE SAME ARE DISMISSED IN LIMINE AS NOT PRESSED. 4 . GROUND NO.4 RELATES TO GRANTING OF RELIEF OF LIABILITY AMOUNTING TO RS. 50,24,552/ - TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. IT WAS SUBMITTED BY LEARNED AR THAT IDENTICA L ISSUE HAS BEEN DEALT BY THE TRIBUNAL IN CASE OF GROUP ASSESSEE, WHEREIN THIS ISSUE WAS SET ASIDE TO THE FILE OF CIT(A). FOR THIS PURPOSE, OUR ATTENTION WAS INVITED TO THE FOLLOWING DECISION OF THE TRIBUNAL IN CASE OF GROUP AASSESSEE: - I) ZEST HOLDINGS PV T. LTD., AY 2009 - 10, IN ITA NO.5216/MUM/2012, II) SMT. DEEPIKA A MEHTA AY 2003 - 04 IN ITA 3816/MUM/2011, III) CASCADE HOLDINGS PVT. LTD. AY 2001 - 02 TO 2002 - 03 IN ITA NO.2142 - 2413/MUM/2013, IV) EMINENT HOLDINGS PVT. LTD. IN ITA 2139 - 2142/MUM/2013, & V) TOPAZ HOLDINGS PVT. LTD. IN ITA 2146/MUM/2013. 4.1 WE HAVE GONE THROUGH THE DECISION OF THE TRIBUNAL IN CASE OF ZEST HOLDINGS PVT. LTD., IN ITA NO.521 6 /MUM/2012 , DATED 18 - 8 - 2014 , WHEREIN MATTER HAS BEEN RESTORED TO THE FILE OF CIT(A) AFTER HAVING THE FOLL OWING OBSERVATION : - 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IDENTICAL ISSUE HAS BEEN SET - ASIDE AND RESTORED TO THE FILES OF THE CIT(A) FOR AFRESH ADJUDICATION OF THE ISSUE AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN THE CASE OF M/S EMINENT HOLDINGS PVT. LTD. IN ITA NO.8200/MUM/2010 AND 8353/MUM/2010, WHEREIN THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF HITESH S. MEHTA IN ITA NO.7726 & 7727/MUM/2010. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE RAISED IN GROUND NO.4 SHOULD SET - ASIDE TO THE FILES OF THE CIT(A) FOR AFRESH ADJUDICATION OF THE ISSUE AFTER G RANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ISSUE. GROUND NO.4 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1465/11 , ITA NOS.2136,92,2137&2138/13 3 4.2 AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE PARI MATERIA , RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN AS SESSEES RELATED PARTYS CASE, WE RESTORE THIS ISSUE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. 5 . SIMILAR GROUNDS HAVE BEEN TAKEN IN OTHER YEARS ALSO, WHICH ARE UNDER CONSIDERATION. FOLLOWING THE SAME REASONING AS GIVEN HEREINABOVE, WE RESTORE THIS IS SUE TO THE FILE OF CIT(A) IN CASE OF ALL THESE YEARS . 6. ADDITIONAL GROUND RAISED BY THE ASSESSEE WAS NOT PRESSED, THEREFORE, THE SAME IS DISMISSED IN LIMINE AS NOT PRESSED. 7 . IN THE RESULT APPEAL OF THE ASSESSEE FOR A.Y.2006 - 07 IS ALLOWED IN PART. 8 . IT A NO.2136/MUM/2013 (AY:2001 - 02) : IN THIS APPEAL THE ASSESSEE DID NOT PRESS THE GROUNDS NO. 1 TO 3, THEREFORE, THE SAME ARE DISMISSED IN LIMINE AS NOT PRESSED. 8.1 GROUND NO.4 RELATES TO CONFIRMING THE DISALLOWANCE OF INTEREST EXPENDITURE OF RS. 50,24,522/ - . AS DISCUSSED HEREINABOVE, IN PARA 4 , WE RESTORE THE MATTER BACK TO THE FILE OF CIT(A) FOR DECIDING AFRESH FOLLOWING THE SAME REASONING GIVEN IN PARA 4 ABOVE. 9 . WITH REGARD TO GROUND TAKEN FOR CONFIRMING INTEREST CHARGED U/S.234A,B&C, LEARNED AR PLACED ON RECORD FORM NO. 8 AND REQUESTED THAT SIMILAR ISSUE IS PENDING BEFORE THE HONBLE BOMBAY HIGH COURT FOR A.Y.2007 - 08 IN RESPECT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 8354/MUM/2010, DATED 25 - 9 - 2013 AND REQUESTED THAT THE AO MAY BE ITA NO. 1465/11 , ITA NOS.2136,92,2137&2138/13 4 DIRECTED TO FOLLOW THE O RDER OF THE HONBLE BOMBAY HIGH COURT IN SIMILAR MATTER. 9.1 WE FOUND THAT THE TRIBUNAL IN ITA NO.8354/MUM/2010 HAS CONFIRMED THE APPLICABILITY OF INTEREST U/S.234A,B&C, HOWEVER, THE SAME WAS SET ASIDE TO THE FILE OF THE AO FOR CALCULATION OF INTEREST AS PER LAW. 9.2 IT WAS BROUGHT TO OUR NOTICE BY LEARNED DR THAT HONBLE BOMBAY HIGH COURT HAVE DISMISSED THE APPEAL OF THE ASSESSEE IN ITA NO. 553/2014 WITH RESPECT TO APPLICABILITY OF PROVISIONS OF 234AB&C. 9.3 IN VIEW OF THE ABOVE, WE RESTORE THE MATTER TO F ILE OF THE AO IN TERMS OF PROVISIONS OF SECTION 158A TO DECIDE THE SAID ISSUE IN ACCORDANCE WITH THE DECISION GIVEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF THE ASSESSEE FOR A.Y.2007 - 08 . WE DIRECT ACCORDINGLY. THE AO IS FURTHER DIRECTED TO VERIFY TH E COMPUTAT ION PART OF INTEREST AS PER LAW. 9.4 IN THE RESULT APPEAL OF THE ASSESSEE FOR A.Y. 2001 - 02 IS ALLOWED IN PART. 10 . ITA NO.92/MUM/2013(AY:2008 - 2009) : GROUNDS NO.1 TO 3 HAVE NOT BEEN PRESSED BY THE ASSESSEE, THE SAME ARE, THEREFORE, DISMISSED IN L IMINE AS NOT PRESSED. 10.1 WITH REGARD TO DISALLOWANCE OF INTEREST EXPENDITURE OF RS. 50,24,522/ - , WE RESTORE THE MATTER BACK TO THE FILE OF CIT(A) IN TERMS OF OUR OBSERVATION GIVEN IN PARA 4 ABOVE. 11 . GROUND NO.5 RELATES TO CALCULATION OF BOOK PROFIT U/S .115JB DEALS WITH THE EXCLUSION OF INTEREST EXPENSES WHILE CALCULATING INTEREST U/S. 115JB OF THE ACT. THIS ISSUE IS CONSEQUENTIAL TO THE ISSUE RAISED IN ITA NO. 1465/11 , ITA NOS.2136,92,2137&2138/13 5 GROUND NO.4. AS WE HAVE ALREADY RESTORED GROUND NO. 4 TO THE FILE OF THE CIT(A), THEREFORE, GROUND NO.5 IS ALSO RESTORED BACK TO CIT(A), AS THE SAME IS CONSEQUENTIAL TO GROUND NO. 4. 12 . GROUND NO.6 RELATES TO CHARGING OF INTEREST U/S.234A, 234B & 234C . FOLLOWING THE SAME REASONING AS GIVEN IN PARA 9, WE DIRECT THE AO TO FOLLOW THE ORDER OF THE HONBLE HIGH COURT . 13 . ADDITIONAL GROUND NO.2 IS COVERED BY THE ORDER OF THE TRIBUNAL IN CASE OF EMINENT HOLDINGS PVT. LTD., IT A NO. 2139 - 2142/MUM/2013 AND TOPAZ HOLDINGS PVT. LTD., ITA NO.2146/MUM/2013 . IN THESE ORDERS, THE TRIBUNAL SET ASIDE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, GROUND TAKEN AS ADDITIONAL GROUND NO.2 IS ALSO RESTORED TO THE FILE OF AO FOR FRESH ADJUDICATION. IN THE RESULT APPEAL IS ALLOWED IN PART. 14 . ITA NO. 2137 &21 38/MUM/2013 (AY:2002 - 03 & 2003 - 0 4 ) : IN BOTH OF THE APPEALS, GROUNDS NO. 1 TO 3 ARE NOT PRESSED, THEREFORE, THE SAME ARE DISMISSED IN LIMINE AS NOT PRESSED. 15 . GROUND NO.4 RELATES TO DISALLOWANCE OF INTEREST. WE RESTORE BACK THIS ISSUE TO THE FILE OF CIT(A) IN TERMS OF OUR OBS ERVATION IN PARA 4 ABOVE. 16 . SIMILARLY, GROUND WITH REGARD TO CHARGING OF INTEREST U/S.234A, 234B & 234C, ARE ALSO HEREBY RESTORED BACK TO THE FILE OF AO IN TERMS OF OUR DISCUSSION IN PARA 9 ABOVE. 17 . ADDITIONAL GROUND NO.1 IS IDENTICAL TO THE ISSUE RAIS ED IN THE RELATED CASE. THEREFORE, IN TERMS OF OUR DISCUSSION IN PARA 13 ABOVE, THIS ISSUE IS ALSO RESTORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION. ITA NO. 1465/11 , ITA NOS.2136,92,2137&2138/13 6 18 . IN THE RESULT, ALL APPEAL S OF THE ASSESSEE ARE ALLOWED IN PART . ORDER PRONOUNCED IN THE OPEN CO URT ON THIS 12 /11/ 201 4 . 12 /11/ 2014 SD/ - SD/ - ( ) ( VIVEK VARMA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 12 / 11 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C IT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//