LATE SHRI HARSHAD S. MEHTA, MUMBAI V. DCIT CEN CIR 4(1), MUMBAI

ITA 3270/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0023 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 28-06-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 29-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04) LATE SHRI HARSHAD S. MEHTA, THROUGH L/H SMT. JYOTHI H. MEHTA, 32, MADHULI, DR. A.B.ROAD, WORLI, MUMBAI 400 018 PAN: ABAPM 1848F ...... APPELLANT VS. THE DCIT, CC 4(1), AAYKAR BHAVAN,M.K.ROAD, MUMBAI. .... RESP ONDENT APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : DR.P.DANIEL DATE OF HEARING : 2 8/06/2017 DATE OF PRONOUNCEMENT : 30/06/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERT AINS TO ASSESSMENT YEAR 2003-04 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-52, MUMBAI DATED 11/03/2015, WHICH IN TURN, ARISES OUT OF A N ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 R.W.S. 147 O F THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30/11/2006. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 2 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 GROUNDS OF APPEAL AGAINST THE ORDER OF LD. COMMISS IONER OF INCOME-TAX (APPEALS) 52 DATED 11.03.2015. FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER: 1. THE LD. CIT (A) HAS ERRED IN LAW AND IN FACT IN CONFIRMING ADDITION ON ACCOUNT OF SUSPENSE ACCOUNT AMOUNTING TO RS.12,32,0 95/-. 2.THE LD. CIT (A) HAS ERRED IN LAW AND IN FACT IN C ONFIRMING ADDITION ON ACCOUNT OF CASH DEPOSIT AMOUNTING TO RS. 10,0001-. 3. THE LD. CIT (A) HAS ERRED IN LAW I FACT IN CONF IRMING ADDITION ON ACCOUNT OF SHORT SALE OF SHARES AMOUNTING TO RS. 75,59,389/ -. 4. THE LD. CIT (A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING INTEREST CHARGED U/S. 234A, 234B AND 234C OF THE ACT. 5. THE LD. CIT (A) HAS ERRED IN LAW AND IN FACTS I N NOT APPRECIATING THAT THE INCOME ASSESSED IN THE HANDS OF THE APPELLANT WAS S UBJECTED TO THE PROVISIONS OF TDS AND HENCE ON THE SAID AMOUNT OF T AX, NO INTEREST CAN BE COMPUTED U/S. 234B AND 234C OF THE ACT. 3. AT THE OUTSET THE LD. REPRESENTATIVE FOR THE ASS ESSEE POINTED OUT THAT THE ISSUES SIMILAR TO THOSE WHICH HAVE BEEN RAISE D IN THIS APPEAL HAVE BEEN DECIDED BY THE TRIBUNAL IN THE GROUP CASES AND, THE REFORE, THE AFORESAID GROUNDS OF APPEAL BE DISPOSED OF IN THE SAID LIGHT. 4. THE LD.SPECIAL COUNSEL, APPEARING FOR THE REVENU E HAS NOT CONTROVERTED THE AFORESAID FACTUAL MATRIX BROUGHT O UT BY THE LD. REPRESENTATIVE FOR THE ASSESSEE. 5. IN THIS BACKGROUND, IT IS TO BE NOTED THAT THE A PPELLANT IS A PERSON NOTIFIED UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992. IN THE COURSE OF THE ASSESS MENT PROCEEDINGS THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AT AN IN COME OF RS. 724,59,88,331/-, WHICH, INTER-ALIA, INCLUDE AN ADDI TION OF RS.681,17,39,634/- UNDER THE HEAD SUSPENSE ACCOUNT. THE LD. REPRESEN TATIVE FOR THE ASSESSEE EXPLAINED THAT THE SAID ADDITION WAS ON ACCOUNT OF VARIOUS CREDITS/DEPOSITS FOUND IN THE BANK ACCOUNT OF THE ASSESSEE. IN THE ABSENCE OF ANY 3 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 EXPLANATION FORTH-COMING THE ASSESSING OFFICER HAD TREATED THE SAID AMOUNT AS UNEXPLAINED AND ADDED IT TO THE TOTAL INCOME. B EFORE THE CIT(A), ASSESSEE COULD OBTAIN THE RELEVANT INFORMATION FROM THE OFFI CE OF THE CUSTODIAN (TORTS) ACT AND ON THAT BASIS THE CIT(A) OBTAINED THE REQUISITE REMAND REPORT FROM THE ASSESSING OFFICER. ON THE BASIS OF THE REMAND REPORT AND THE EXPLANATIONS PUT-FORTH BY THE ASSESSEE THE ADDI TION MADE BY THE ASSESSING OFFICER UNDER THE HEAD SUSPENSE ACCOUNT WAS DELETED, BUT THE ADDITIONS REFLECTED IN THE ABOVE SAID GROUND OF APP EAL NO.1,2 &3 WERE RETAINED. THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT EVEN WITH RESPECT TO THE SAID ENTRIES, THE DETAILS OUGHT TO HAVE BEEN OBTAINED FROM THE CUSTODIAN APPOINTED BY THE SPECIAL COURTS SINCE REQUISITE DETAILS WERE WITH HIM AND NOT WITH THE ASSESSEE. THE LD. R EPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT UNDER SIMILAR CIRCUMSTANC ES, THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2002-03 IN ITA NO. 1731/MUM/2015 DATED 07/02/2017 HAS DECIDED THE ISS UE AS UNDER:- 6. IT IS BROUGHT TO OUR NOTICE THAT SIMILAR SITUATI ON AROSE IN THE CASE OF OTHER FAMILY MEMBERS. IT IS NOTED THAT IN THE CASE OF HITESH S M EHTA VS DCIT, THE ITAT, VIDE ITS ORDER DATED 12-06-2013 DISPOSED OF SIMILAR ISSUE AS UNDER:- 6. THERE IS NO OTHER GROUND IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEARS 1994-95, 1995-96 AND 2008-09. HOWEVER, THERE ARE TWO MORE GROUNDS IN APPEAL OF THE ASSESSEE FOR ASSESSMENT YE AR 2001-02 I.E. GROUNDS NO.3 & 4, WHICH RELATE TO CONFIRMING THE ADDITION O F INTEREST INCOME AND CONFIRMING THE ADDITION ON ACCOUNT OF SUSPENSE ENTR IES AT RS.15,67,491/- AND RS,2,79,396/-, RESPECTIVELY. 6.1 IN RESPECT TO THESE GROUNDS, THE LEARNED COUNSE L OF THE ASSESSEE STATED THAT THE AO AS WELL AS LEARNED CIT(A) HAS MADE AND CONFIRMED THESE ADDITIONS BY OBSERVING THAT ONUS LAY UPON THE ASSES SEE REMAINED UNDISCHARGED. IT WAS SUBMITTED THAT ALL THE DETAILS ARE LYING WITH THE CUSTODIAN AND THIS IS NOT POSSIBLE TO THE ASSESSEE TO GET THE DETAILS FROM CUSTODIAN. THE ASSESSEE WRITTEN VARIOUS LETTERS TO THE CUSTODIANS ALSO, COPIES OF WHICH ARE PLACED IN COMPILATION AT PAGES 1 TO 5. IT WAS STATED THAT TIME AND AGAIN THE ASSESSEE TRIED TO GET THE D ETAILS FROM THE CUSTODIAN 4 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 BUT COULD NOT GET THE DETAILS. ACCORDINGLY, IT WAS REQUESTED THAT THE MATTER SHOULD BE SENT BACK TO THE FILE OF THE CIT(A) AND T O COLLECT THE DETAILS FROM CUSTODIAN AND THEREAFTER THE ISSUE SHOULD BE DECIDE D ACCORDINGLY. 6.2 ON THE OTHER HAND, LEARNED DR STATED THAT AMPLE OPPORTUNITIES HAVE ALREADY BEEN GIVEN AND SINCE NO DETAILS COULD BE FI LED ON BEHALF OF THE ASSESSEE, THEREFORE, THIS WILL BE A FUTILE EXERCISE IF THE APPEAL IS SENT TO THE FILE OF CIT(A) ONCE AGAIN. 6.3 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND CON SIDERING THE MATERIAL ON RECORD, WE FOUND THAT THIS ISSUE NEEDS READJUDICAT ION AT THE END OF THE LEARNED CIT(A). LEARNED CIT(A) HAS DISMISSED THE GR OUND OF THE ASSESSEE BY OBSERVING IN PARA 8.2(III) AT PAGE 6, WHICH ARE AS UNDER :- '(III) IN RESPECT OF THE ITEM AT SR. NO-2 TO 4, TH E APPELLANT HAS MERELY CLAIMED THAT THE SAME REPRESENTS DIVIDEND INCOME OF THE APPELLANT. HE HAS HOWEVER, PLEADED BEFORE THE ASSESSING OFFICE R THAT THE SAID EVIDENCE IS NOT IN HIS POSSESSION AND HENCE THE SAM E MAY BE OBTAINED FROM THE CUSTODIAN. / FIND THAT THE ONUS T O EXPLAIN THE DEPOSIT ENTRY IS ON THE APPELLANT AND HENCE UNLESS THE BURDEN OF PROVING THE DEPOSIT IS DISCHARGED, THE ONUS DOES NO T SHIFT ON THE ASSESSING OFFICER IT IS SEEN THAT NO EVIDENCE IS FI LED IN RESPECT OF THE CLAIM OF THE APPELLANT THAT THE AMOUNT OF RS.37, 71 5/-, RS.2,54,500/- AND RS 6,80,500/- DOES NOT REPRESENT INTEREST INCOME. IN THE LIGHT OF THE, SAME, THE SAID ADDITION OF THE '' SAID AMOUNTS AS INTEREST INCOME IS CONFIRMED.' AFTER GOING THROUGH THE FINDING OF THE LEARNED CIT( A),'WE FOUND THAT THE LEARNED CIT(A) SHOULD HAVE OBTAINED THE DETAILS FRO M CUSTODIAN AS THE CUSTODIAN APPOINTED BY THE SPECIAL COURT,. IS NOT O BLIGED TO ASSESSEE BY PROVIDING NECESSARY DETAILS IN SPITE OF VARIOUS REQ UESTS MADE ON BEHALF OF THE ASSESSEE. COPIES OF REQUESTS ARE PLACED ON RECO RD. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE T HIS ISSUE TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH AFTER OBTAINING N ECESSARY DETAILS FROM THE CUSTODIAN AND AFTER AFFORDING OPPORTUNITY OF HEARIN G TO THE ASSESSEE. WE ORDER ACCORDINGLY SIMILARLY, IN THE CASE OF MRS PRATIMA H MEHTA ALSO, THE TRIBUNAL VIDE ITS ORDER DATED 28-08-2013 FOLLOWING THE ORDER OF NITESH S ME HTA, SUPRA, REMITTED THIS MATTER TO THE FILE OF THE LD. CIT(A). WE FIND THAT FACTS CIRCUMSTANCES OF THE CASE BEFORE US ARE IDENTICAL TO THE ONE AS HAS BEEN ALRE ADY DEALT BY THE TRIBUNAL IN AFORESAID CASES. THEREFORE, FOLLOWING THESE ORDERS AND IN THE INTEREST OF JUSTICE AND FAIRNESS, WE REMIT THIS GROUND BACK TO THE FILE OF THE LD. CIT(A) WITH THE SAME DIRECTIONS AS HAS BEEN GIVEN IN THESE CASES. WE ORD ER ACCORDINGLY. GROUND 1 MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 FOLLOWING THE ABOVE PRECEDENT, IN THE INSTANT YEAR ALSO THE ISSUE IS RESTORED BACK TO THE FILE OF CIT(A) TO PASS FRESH ORDER AS P ER LAW KEEPING IN MIND THE DIRECTIONS OF THE TRIBUNAL VIDE ORDER DATED 07/02/2 017(SUPRA). 6. THE NEXT GROUND RELATES TO CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT. ON THIS ISSUE IT WAS A C OMMON GROUND BETWEEN THE PARTIES THAT THE SAID ISSUE HAS BEEN DECIDED IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESSMENT YEAR 2002-03(SUPRA), WHEREIN THE FOLLOWING DISCUSSION IS RELEVANT:- 10. GROUNDS 3 & 4 DEAL WITH LEVY OF INTEREST U/S 2 34A, 234B AND 234C. DURING THE COURSE OF HEARING, THE LD. COUNSEL STATED AT THE VE RY OUTSET THAT THIS ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL GIVEN IN CA SE OF GROUP COMPANY OF THE ASSESSEE, BIZ. M/S GROWMORE EXPORTS LTD VS DCIT (IT A NO.4358/MUM/2013) DATED 08-02-2016 AND THEREFORE THIS ORDER SHOULD BE FOLLO WED. THE LD. SPECIAL COUNSEL DID NOT POINT OUT ANY DISTINCTION IN FACTS OR LEGAL POSITION. 11. WE HAVE GONE THROUGH THE ORDERS PASSED BY LOWER AUTHORITIES AND FIND THAT IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN THE CASE OF M/S GROWMORE EXPORTS LTD (SUPRA). RELEVANT PART OF ORDER OF THE TRIBUNAL IS REPRODUCED BELOW:- 11. GROUND NO 6 RELATES TO LEVY OF INTEREST U/S 23 4A, 234B AND 234C OF THE ACT. THE ID. COUNSEL FOR THE ASSESSEE COMPANY SUBMI TTED THAT INTEREST U/S 234A, 234B AND 234C IS MANDATORY BUT THE INTEREST L IABILITY IS TO BE CALCULATED AFTER TAKING INTO ACCOUNT TAX DEDUCTED AT SOURCE. THE LD. COUNSEL FOR THE ASSESSEE COMPANY RELIED UPON DECISI ONS OF THE TRIBUNAL IN THE CASE OF DCIT V. SMT RASILA S. MEHTA IN ITA NO. 5870/MUM/2011 VIDE ORDERS DATED 21. 10.201.5, DIVINE HOLDING PVT. LTD. V. ACIT IN ITA NO. 560/MUM/20 1.3 DATED 21.10.2015 AND AATUR HOLDINGS PRIVATE LIMITED V. DCIT IN ITA NO. 846, 1032 & 147/ MUM/ 20 1 0 DATED 23-09-2015, WHEREBY TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE LEARNED ASSESSING OFFICER WHO WOULD LEVY THE INTEREST AS PER PROVISIONS OF SE CTION 234 AFTER REDUCING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE AND DECIDE A S PER THE PROVISION OF LAW. THE TRIBUNALS DECISION IN ITA NO. 846,1032,21 47/MUM/ 2010 DATED 23.09.. 2015 IS REPRODUCED BELOW:- 6. LAST GROUND OF APPEAL FOR ALL THE THREE ASSESSM ENT YEARS PERTAIN, TO LEVY OF INTEREST U/S 234A, 234B AND 234C OF THE ACT. BEF ORE US, THE REPRESENTATIVE OF BOTH THE SIDES AGREED THAT IDENTI CAL ISSUE WAS DECIDED IN THE CASES OF TOPAZ HOLDINGS PVT. LIMITED ( ITA/2146 1/MUM/2013, A. Y. 6 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 2002 -02 DT. 78.06.2014) AND EMINENT HOLDINGS PVT. LTD. (ITA/2139/MUM/2013 A.Y.2002-03, DATED 18.06.2014) T HAT THE TRIBUNAL HAD UPHELD THE LEVY OF INTEREST IN PRINCIPAL, THAT IT HAD SET ASIDE THE ISSUE FOR CALCULATING THE INTEREST TO THE FILE OF THE AO) WITH DIRECTION THAT THE TAX DEDUCTED AT SOURCE SHOULD BE REDUCED WHILE CALCULAT ING THE INTEREST. WE FIND THAT THE ISSUE WAS DISCUSSED IN THE CASE OF EM INENT HOLDINGS PVT. LTD. (SUPRA) AS UNDER: 5. NEXT GROUND OF APPEAL IS ABOUT LEVY OF INTEREST U/S. 234 OF THE ACT. BEFORE US, AR STATED THAT THE ASSESSEE WAS A NOTIFI ED 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 ATTA CHMENT OF THE CUSTODIAN APPOINTED UNDER THE PROVISIONS OF THE SPECIAL COURT S ACT, THAT THE TRIBUNAL IN THE CASE OF THE APPELLANT AND SEVERAL OTHER ENTI TIES HAD HELD THE VIEW IN FAVOUR OF THE APPELLANT THAT THE HONBLE BOMBAY HIG H, COURT IN THE CASE OF DIVINE HOLDINGS PVT. LID. AND CASCADE HOLDINGS PVT. LTD, HAD HELD THAT THE PROVISIONS OF SECTIONS 234A, 234.8 AND 234C OF THE ACT WERE MANDATORY AND WERE APPLICABLE TO THE NOTIFIED ENTITIES ALSO T HAT THE ASSESSEE WAS IN THE PROCESS OF FILING AN APPEAL AGAINST THE SAID OR DER BEFORE THE HONBLE SUPREME COURT , THAT THE INCOME EARNED IN THE YEAR UNDER CONSIDERATION WAS SUBJECTED TO THE PROVISIONS OF 9 I.T.A. NO.1731 /MUM/2015 TDS, THAT THE CHARGEABILITY OF SECTION 234A, 234B AND 234C OF THE ACT SHOULD BE AFTER CONSIDERING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED. THE APPELLANT RELIES IN THIS REGARD ON TH E FOLLOWING DECISIONS. HE RELIED UPON THE CASES OF MOTOROLA INC. VS DCIT (95 LTD 269(DEL)( SB). SEDCO PORES DRILLING CO. LTD. (264 ITR 320), NGC NETWORK ASIA LLC (313 ITR 187). SUMMIT BHATACHARYA (300 ITR (AT) 347 (BOM)(SB), VIJ AY GOPAL JINDAL (ITA NO. 4333/DEL/2009) & EMILLO RUIZ BERDEJO (320 ITR 1 90(BOM). DR RELIED UPON THE CASES OF DIVINE HOLDINGS PVT. LTD. 3.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IN THE CASE OF DIVINE HOLDINGS PUT . LTD..HONBLE BOMBAY HIGH COURT HAS HELD THAT PROVISIONS OF SECTION 234A , 234B AND 234C WERE APPLICABLE TO THE NOTIFIED PERSON ALSO. THEREFORE, UPHOLDING THE ORDER OF THE FAA TO THAT EXTENT, WE HOLD THAT- PROVISIONS OF SEC TION 234 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 ADJUDICATION WHO WOULD DECIDE THE ISSUE AFTER CONSIDERING THE AMOUNT TAXED DEDUCTIBLE AT SO URCE ON THE INCOME ASSESSED AND AFTER AFFORDING A REASONABLE OPPORTUNI TY OF HEARING TO THE ASSESSEE. GROUND NO. 5 IS ALLOWED IN PART IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE ORDER WE RESTORE B ACK THE ISSUE TO THE FILE OF THE AO WHO WOULD LEVY THE INTEREST AS PER THE PR OVISIONS OF SECTION 234 OF THE ACT AND GIVE CREDIT FOR THE TDS AMOUNTS. GRO UND NO, 6 FOR ALL THE THREE A. Y S STANDS PARTLY ALLOWED. 7 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 THE LD. COUNSEL FOR THE ASSESSEE COMPANY SUBMITTED THAT THE TRIBUNAL HAS IN THE ASSESSEE COMPANY'S OWN CASE HAS ADJUDICATED THE ISSUE IN ITA NO. 52031/MUM/2013 FOR ASSESSMENT YEAR 2003-04, VIDE OR DERS DATED 18. 12.2014 AS UNDER: 9. GROUND NO.5 RELATES TO CHARGING OF INTEREST U/S 234A AND 234B OF THE ACT. IN CONNECTION WITH THE CHARGE OF INTEREST U/S 234B OF THE ACT, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSE E BEING A 'NOTIFIED PERSON THERE IS NO CHARGE OF INTEREST. IT IS HIS FU RTHER SUBMISSIONS THAT THE RECEIPTS- OF THE ASSESSEE ARE SUBJECTED TO TDS. O N THE CONTRARY, SPECIAL COUNSEL FOR THE REVENUE FLIED VARIOUS DECISIONS OF THE TRIBUNAL IN SUPPORT OF CHARGE OF INTEREST. THE JUDGMENT OF THE JURISDICTIO NAL HIGH COURT IN THE CASE OF CIT VS. DIVINE HOLDING POT, LTD. WAS RELIED ON B Y THE SPL. COUNSEL FOR THE REVENUE. DURING THE REBUTTAL TIME, LD. COUNSEL SUBM ITTED THAT THIS ISSUE SHOULD ALSO REVISIT THE FILE OF THE AO FOR REMOVAL OF CERTAIN INACCURACIES IN CALCULATING THE INTEREST. WE ORDER ACCORDINGLY. THU S, GROUND NO. 6 IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, ASSESSES'S APPEAL IS PARTLY ALLO WED FOR STATISTICAL PURPOSES.' LD. SPECIAL COUNSEL OF THE REVENUE SUBMITTED THAT T HE LEVIABILITY OF INTEREST U/S 234A 234B AND 234C OF THE ACT IS MANDATORY. HE RELIED UPON DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE EAS E OF DIVINE HOLDINGS PRIVATE LIMITED IN ITA NO.3334 OF 2010, WHEREBY HON BLE BOMBAY HIGH COURT HAS HELD THAT IN CASE OF NOTIFIED PARTIES UND ER THE SPECIAL COURT ACT INTEREST U/S 234A, 234B AND 234C OF THE ACT HAS TO BE LEVIED, AND CONTENDED THAT THE INTEREST U/S 234 IS MANDATORY. AFTER HEARING BOTH THE PARTIES AND CAREFULLY CONSI DERING THE MATERIAL ON RECORDS INCLUDING RELIED UPON CASE, RESPECTFULLY FO LLOWING THE ABOVE ORDER'S OF THE TRIBUNAL WE RESTORE THE ISSUE BACK TO THE FI LE OF LEARNED, ASSESSING OFFICER WHO WOULD LEVY INTEREST AS PER PROVISIONS O F SECTION 234 OF THE ACT AND GIVE CREDIT FOR THE TDS AMOUNT. WE ORDER ACCORD INGLY. BOTH THE PARTIES JOINTLY STATED THAT AFORESAID ORDE R IS APPLICABLE ON THE FACTS OF THE CASE BEFORE US. THEREFORE, FOLLOWING THE ORDER, WE SEND THIS ISSUE BACK TO THE FILE OF THE AO WITH THE SAME DIRECTIONS AS HAVE BEEN GIVEN IN THE AFORESAID ORDER. THE AO IS DIRECTED TO FOLLOW THE ORDER AND DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSE E SHALL ALSO BE FREE TO RAISE ALL LEGAL AND FACTUAL ISSUES IN THIS REGARD. THIS GROUN D MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 8 ITA NO.3270/MUM/2015 (ASSESSMENT YEAR 2003-04 6.1 FOLLOWING THE AFORESAID DECISION, IT HAS TO BE HELD THAT SO FAR AS THE CHARGEABILITY OF INTEREST UNDER SECTION 234A, 234B AND 234C, THE SAME IS HEREBY AFFIRMED IN PRINCIPLE. SO HOWEVER, IN SO FA R AS QUANTIFICATION OF INTEREST CHARGEABLE IS CONCERNED, THE ISSUE IS REST ORED BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE AMOUNT OF TAX DEDUC TIBLE AT SOURCE ON THE INCOME ASSESSED. IN FACT, THE ASSESSING OFFICER IS DIRECTED TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL DATED 07/02/2017(SUPRA) IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2002-03 AND DECIDE THE ISSUE ACCORDINGLY. THUS, ON THIS ASPECT ASSESSEE PARTLY SUCCEEDS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30/06/2017 SD/- SD/- (RAVISH SOOD) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 30/06/2017 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI