AATUR HOLDINGS P. LTD, MUMBAI V. ACCC-31, MUMBAI

ITA 3147/MUM/2013

• Counselvise Citation: 314719914 RSA 2013
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 25-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: NILESH MEHTA
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO S . 3146&3147 / MUM/ 20 1 3 ( ASSE SSMENT YEAR S : 200 3 - 04 & 2002 - 03 ) M/S AATUR HOLDINGS PVT . LTD. 32, MADHULI, DR. ANNIE BESANT ROAD, WORLI, MUMBAI - 400 018 VS. DCIT, CC - 31, MUMBAI - 20 PAN/GIR NO. : A ABCA 1472 C ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. NILESH MEHTA /REVENUE BY : DR. P. DANIEL DATE OF HEARING : 21 ST AUGUST , 201 3 DATE OF PRONOUNCEMENT : 4 TH SEPT , 2013 O R D E R THIS COMMON ORDER SHALL GOVERN THE DISPOSAL OF TWO APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A) - 37 , MUMBAI FOR ASSESSMENT YEARS 2003 - 04 & 2002 - 03 , RESPECTIVELY. 2 . SINCE COMMON ISSUES ARE INVOLVED IN BOTH THE CASES, T HEREFORE, FOR THE SAKE OF CONVENIENCE, BOTH THE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 3 . LEARNED COUNSEL OF THE ASSESSEE, AT THE OUTSET, STATED THAT ALL THE GROUNDS INCLUDING ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE COVER ED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF OTHER GROUP CASES OF ITA NO. 3146&3147/ 20 1 3 2 THE ASSESSEE AND IN CASE OF ASSESSEE ITSELF. COPIES OF THE ORDERS OF THE TRIBUNAL HAVE ALSO BEEN FILED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 4 . ON THE OTHER HAND, LEARNED STANDING COUN SEL , WHO APPEARED ON BEHALF OF THE DEPARTMENT, STATED THAT THOUGH THE ISSUES ARE COVERED, HOWEVER, HE PLACED STRONG RELIANCE ON THE ORDER OF LEARNED CIT(A) . 5 . THE ADDITIONAL GROUND RAISED FOR BOTH OF THE YEARS BY THE ASSESSEE THAT THE LEARNED CIT(A) OUG HT TO HAVE APPRECIATED THAT AS PER THE DECISION OF HONBLE SPECIAL COURT DATED 30 - 4 - 2010 IN M.P. NO. 41 OF 1999, THE ASSETS UNDER CONSIDERATION AND THE CONSEQUENTIAL INCOME BELONGS TO SHRI HARSHAD S.MEHTA AND HENCE, THE INCOME ASSESSED BY THE AO OUGHT TO HA VE BEEN TAXED IN THE HANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE HANDS OF THE ASSESSEE. 6 . IN THIS REGARD, IT WAS SUBMITTED BY LEARNED AR THAT S INCE THE ORDER OF SPECIAL COURT IS PENDING BEFORE THE HON BLE SUPREME COURT, THEREFORE, THE OUTCOME OF THE SA ME HAS TO BE APPLIED ON THE PRESENT FACTS OF THE CASE . 7 . AFTER CONSIDERING THE SUBMISSION, I FIND THAT SIMILAR ADDITION AL GROUND WAS TAKEN IN CASE OF SHRI HITESH S. MEHTA VS. DCIT, DECIDED IN ITA NOS.5587&5589/M/2011 AND OTHER CONNECTED APPEALS, VIDE OR DER DATED 12 - 6 - 2013 , WHEREIN THE TRIBUNAL CONSIDERING THE ADDITIONAL GROUND IN DETAIL HAS RECORDED ITS FINDINGS IN PARA 5, WHICH ARE AS UNDER : - ITA NO. 3146&3147/ 20 1 3 3 5 . AFTER GOING THROUGH THE ADDITION GROUND FILED BY THE ASSESSEE, WE NOTED THAT THE GROUND IS LEGAL GROUND, WH ICH DOES NOT REQUIRE ANY NEW FACTS TO BE BROUGHT ON RECORD. IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, REPORTED IN (1998) 229 ITR 383 , THE LEGAL GROUND CAN BE ADMITTED, IF NO NEW FACTS ARE TO B E BROUGHT ON RECORD. HOWEVER, AFTER GOING THROUGH THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR ALL THE ASSESSMENT YEARS INVOLVED HERE BEFORE US, WE FOUND THAT THE GROUND IS FULLY ACADEMIC IN NATURE FOR THE REASON THAT IF THE HONBLE SUPREME COURT DECID ES SOMETHING THAT HAS TO BE FOLLOWED WITHOUT ANY DISPUTE. THE DECISION OF THE HONBLE APEX COURT IS LAW OF LAND, WHICH HAS TO BE FOLLOWED BY EVERY AUTHORITY. THEREFORE, IN OUR VIEW, NO DIRECTION IS TO BE REQUIRED TO BE GIVEN TO THE AO IN THIS RESPECT BECAU SE IF THE HONBLE APEX COURT DECIDES THAT ALL THE INCOME BELONGS TO SHRI HARSHAD S. MEHTA, THEN THE INCOME HAS TO BE ASSESSED IN THE HANDS OF SHRI HARSHAD S. MEHTA, NOT IN THE HANDS OF ANY OTHER PERSON. THEREFORE, IN OUR VIEW, THERE IS NO NEED TO ISSUE ANY DIRECTION AS THE DECISION OF THE HONBLE SUPREME COURT HAS TO BE FOLLOWED IN ANY CASE. ACCORDINGLY, BY ADMITTING THE GROUNDS RAISED BY THE ASSESSEE FOR ALL THESE YEARS, WE TREAT THE SAME AS ACADEMIC IN NATURE. HENCE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI HITESH S. MEHTA (SUPRA) , I DECIDE THE ADDITIONAL GROUND OF THE ASSESSEE ACCORDINGLY. 8 . GROUNDS NO. 1 TO 3 & 7 ARE GENERAL IN NATURE, WHICH DO NOT REQUIRE ANY SEPARATE ADJUDICATION. 9 . GROUND NO. 4 RAISED IN BOTH OF THE YEARS IS AGAINS T NOT GRANTING OF RELIEF OF LIABILITY AMOUNTING TO RS. 2,03,65,051/ - TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. 10 . SIMILAR ISSUE WAS INVOLVED IN THE CASE OF SHRI HITESH S. MEHTA DECIDED IN ITA NOS.7726&7727/M/2010, VIDE ORDER DATED 26 - 4 - 2013 , W HEREIN THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF THE LD. ITA NO. 3146&3147/ 20 1 3 4 CIT(A) . THE FINDINGS OF THE TRIBUNAL HAVE BEEN RECORDED IN PARA 5 OF THE ORDER, WHICH ARE AS UNDER : - 5. GROUND NO.4 RELATES TO THE ACTION OF THE LD.CIT(A) IN CONFIRMING THE LIABILITIES AMOUNTI NG TO RS. 11,24,99,052/ - AND RS. 12,61,36,245/ - , RESPECTIVELY FOR THE AYS 2005 - 06 AND 2006 - 07 TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE FINDINGS GIVEN IN PARA 3.3 ABOVE IN RESPECT OF REJECTION/RELIABILITY OF THE BOOKS OF ACCOUNTS AND THE PROPOSED ADJUDICATION OF THE LD.CIT(A) IN VIEW OF THE SAID DIRECTION MAY HAVE DIRECT IMPACT ON THE ISSUE OF THE IMPUGNED LIABILITY, WE SET ASIDE THIS ISSUE ALSO TO THE FILES OF THE LD.CIT(A) TO ADJUDICATE AFRESH ALONG WITH THE ADJ UDICATION OF THE RESPECTIVE GROUND PERTAINING TO THE REJECTION/RELIABILITY OF THE BOOKS OF ACCOUNTS. THEREFORE, ON SIMILAR REASONS, I ALSO SET ASIDE THIS ISSUE TO THE FILE OF THE CIT(A) TO DECIDE THE SAME AFRESH IN VIEW OF THE FINDINGS GIVEN BY THE TRIBU NAL IN THE AFORESAID CASE FOR BOTH OF THE YEARS. 11 . GROUND NO. 5 IN BOTH THE APPEALS OF THE ASSESSEE RELATES TO NOT GRANTING DEDUCTION ON ACCOUNT OF DEPRECIATION AMOUNTING TO RS. 2,86,907/ - FOR ASSESSMENT YEAR 2003 - 04 AND RS. 2,43,115/ - FOR ASSESSMENT YEAR 2002 - 03, RESPECTIVELY. 12 . SIMILAR ISSUE WAS ALSO INVOLVED IN THE CASE OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 1995 - 96 TO 1997 - 98. THE TRIBUNAL WHILE DECIDING THE APPEAL IN ITA NOS. 4065 TO 4067/M/2002, VIDE ORDER DATED 28 - 10 - 2005 , HAS CONFIRMED THE ORDER OF THE LEARNED CIT(A) , WHO HA D DELETED THE SIMILAR ADDITIONS IN RESPECT OF DEPRECIATION. THE FINDINGS OF THE TRIBUN AL HAVE BEEN RECORDED IN PARA 8, WHICH ARE AS UNDER : - ITA NO. 3146&3147/ 20 1 3 5 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE MATERIAL ON FIL E, WE OBSERVED THAT THIS ISSUE IS ALSO COVERED IN F A VOUR OF THE ASSESSEE BY VARIOUS ORDERS OF THE TRIBUNAL. IN ONE OF THE DECISION OF THE TRIBUNAL, THE RELEVANT PARA NO. 5 IN ITA NO. 5035/M/02, WHICH READS AS UNDER : DURING THE COURSE OF HEARING THE LEARNE D COUNSEL FOR THE ASSESSEE HAS INVOLVED OUR ATTENTION THAT DEPRECIATION WAS CLAIMED ON THE OFFICE ASSTS WHICH WERE ;USED FOR PREPARATION OF VARIOUS REPRESENTATIONS FOR VARIOUS GOVT. AUTHORITIES. THOUGH THE ASSESSEE WAS NOT ACTIVELY ENGAGED IN TRADING OF SH ARES BUT HIS OFFICE PREMISES WAS REGULARLY USED BY THE ASSESSEE AND ITS STAFF FOR MAKING PREPARATIONS AND COMPILING DETAILS AND OTHER INFORMATION REQUIRED BY THE GOVT. AGENCIES AND LEGAL CONSULTANTS . THESE FACTS WERE NOT VEHEMENTLY DISPUTED BY THE DEPARTME NT, WE THEREFORE, FIND OURSELVES IN AGREEMENT THAT THE FINDINGS OF CIT(A) . ACCORDINGLY, WE CONFIRM HIS ORDER. RESPECTFULLY FOLLOWING THE ABOVE, WE CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. HENCE, FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR EARLIER THREE YEARS, I ALLOW THIS ISSUE FOR BOTH OF THE YEARS IN FAVOUR OF THE ASSESSEE. 13 . REMAINING ISSUE IN BOTH OF THE APPEALS IS AGAINST CHARGING OF INTEREST UNDER SECTION 234ABC OF THE ACT. 14 . THIS VERY ISSUE WAS INVOLVED IN THE CASE OF ASSESSEE SHRI HITESH S. MEHTA , DECIDED IN ITA NO S.56867, 5868, 6030 & 5226/M/2011, VIDE ORDER DATED 12 - 6 - 2013 , WHEREIN THE TRIBUNAL FOLLOWING THE ORDER OF EARLIER YEARS , RESTORED THE ISSUE TO THE FILE OF THE CIT(A) FOR PASSING A FRESH ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE ON SIMILAR ISSUE THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE CIT(A) IN GROUP CASES OF THE ASSESSEE, THEREFORE, THE ISSUE OF CHARGING INTEREST UNDER SECTION 234ABC , RAISED BY THE ASSESSEE IN ITA NO. 3146&3147/ 20 1 3 6 BOTH OF THE APPEALS, IS ALSO HEREBY SET ASIDE TO THE FILE OF CIT(A) TO DECIDE THE SAME AFRESH IN VIEW OF THE FINDINGS GIVEN BY THE TRIBUNAL IN VARIOUS OTHER CASES INCLUDING SHRI HITESH S. MEHTA (SUPRA) . I ORDER ACCORDINGLY. 15 . IN THE R ESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED IN PART AND PARTLY FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPT .2013 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 04/09 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE AP PELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI