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

ITA 3271/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7770 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 15-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Opportunity of being heard
• Section: 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ITA NO. 3271 / MUM/ 20 1 5 ( / ASSESSMENT YEAR: 20 09 - 10 ) LATE SHRI HARSHAD S MEHTA, THROUGH L/H SMT JYOTI H MEHTA, 32, MADHULI, DR.ANNIE BESANT ROAD, WORLI, MUMBAI - 400018 / VS. ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 4(1), ROOM NO.409, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPELLANT) : ( / RESPONDENT ) ./ PAN : ABAPM1848F ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SHRI DHAVAL SHAH /R ESPONDENT BY : DR.P.DANIEL / DATE OF HEARING : 14.3.2017 / DATE OF PRONOUNCEMENT : 20. 3 . 201 7 / O R D E R PER RAJESH KUMAR, A. M: APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 4.3.2015 PASSED BY THE LD.CIT(A) - 52, MUMBAI FOR THE ASSESSMENT YEARS 20 09 - 10 WHEREIN THE ASSESSEE HAS RAISED THE ISSUE OF CHARGING OF INTEREST U/S 234A, 234B AND 234C CONFIRMED BY THE LD.CIT(A) AS CHARGED BY THE AO 2 ITA NO. 3271 /MUM/2015 WHICH SHOULD HAVE BEEN CALCULATED AFTER TAKING IN ACCOUNT OF TDS DEDUCTIBLE AT SOURCE. 2. THE LD. AR, AT THE OUTSET, SUBMITTED BEFO RE US THAT THE ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPEAL STANDS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1036 AND 1037/MUM/2013 (AY - 2004 - 05 AND 2005 - 06) ORDER DATED 14.8.2015 AND THERE FORE IN VIEW OF THE SAID DECISION THE ISSUE RAISED IN THIS APPEAL BE RESTORED TO THE FILE OF THE AO, WHEREIN IT HAS BEEN DECIDED TO CALCULATE THE INTEREST U/S 234A, 234B AND 234C AFTER CONSIDERING THE AMOUNT OF TAX DEDUCT IBLE AT SOURCE ON THE INCOME ASSESSED. 3 . THE LD.DR DID NOT OBJECT TO THE PLEA PUTFORTH BY THE LD.AR. 4 . AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE RECORD INCLUDING THE ORDERS OF AUTHORITIES BELOW AND CASE LAW RELIED UPON BY THE LD.AR, WE FIND THAT THE ISSUE IN HAND HAS BEEN DECIDED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL VIDE PARA 6 AND 6.1 IN FAVOUR OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, WE REPRODUCE THE ABOVE REFERRED PARAS AS UNDER : 6. THE ONLY OTHER ISSUE IN THIS APPEAL IS WITH REGARD TO THE CHARGEABILITY OF INTEREST UNDER SECTION 234A, 234B & 234C OF THE ACT. ON THIS ASPECT, PLEAS OF THE ASSESSEE ARE TWO FOLD. FIRST, THE PLEA IS TO THE EFFECT THAT THE PROVISIONS OF SECTION 234A, 234B AND 234C ARE NOT APPLICABLE TO NOTIFIED ENTITY. THIS ASPECT OF THE MATTER I S REQUIRED TO BE HELD AGAINST THE ASSESSEE FOLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIVINE HOLDINGS PVT. LTD( ITA NO.3334 OF 2010 DATED 7/3/2012), AS DECIDED BY OUR CO - ORDINATE BENCH IN THE CASE EMINENT HOLDINGS PVT. LTD. IN I TA NO.2139/MUM/2013 DATED 18/6/2014, WHICH ALSO WAS A CASE OF NOTIFIED ENTITY UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992. AT THE TIME OF HEARING THIS ASPECT OF 3 ITA NO. 3271 /MUM/2015 THE MATTER WAS FAIRLY CONCEDED BY THE LD. REPR ESENTATIVE OF THE ASSESSEE. 6.1 THE SECOND PLEA OF THE ASSESSEE IS WITH REGARD TO THE QUANTUM OF INTEREST CHARGEABLE UNDER SECTION 234A, 234B & 234C OF THE ACT WHICH IS TO THE EFFECT THAT THE INTEREST SHOULD BE CHARGED AFTER CONSIDERING THE AMOUNT OF TAX D EDUCTIBLE AT SOURCE ON THE INCOME ASSESSED. SIMILAR PLEA OF THE ASSESSEE WAS UPHELD BY OUR CO - ORDINATE BENCH IN THE CASE OF EMINENT HOLDINGS PVT. LTD. (SUPRA). FOLLOWING THE SAME, WE DEEM IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF AO WHO S HALL RECOMPUTE THE INTEREST CHARGEABLE UNDER SECTION 234A, 234B & 234C OF THE ACT AFTER CONSIDERING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED. NEEDLESS TO MENTION, THE AO SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND THEREAFTER, RECOMPUTE THE INTEREST CHARGEABLE UNDER SECTION 234A, 234B & 234C OF THE ACT, AS PER LAW. THUS, ON THIS ASPECT, THE ASSESSEE PARTLY SUCCEEDS. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO RECOMPUTE THE INTEREST U/S 234A, 234B AND 234C AFTER TAKING INTO ACCOUNT THE TAX DEDUCTIBLE ON TOTAL INCOME OF THE ASSESSEE BY AFFORDING FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH MAR , 2017. SD SD ( MAHAVIR SINGH ) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 20 TH MAR .2017 SRL,SR.PS 4 ITA NO. 3271 /MUM/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, IT AT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI