HARSH ESTATES, MUMBAI V. ACIT CEN CIR 31, MUMBAI

ITA 363/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8137 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 07-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL SPL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B; 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI , , ! '# $ BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO.363/MUM/2013 % % % % / ASSESSMENT YEAR: 2008-09 M/S HARSH ESTATES PVT. LTD. 32,MADHULI, 3 RD FLOOR, DR. ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI-400018 VS. ACIT CC-31, R.NO.409, AAYKAR BHAVAN, M.K.ROAD, MUMBAI-400020 (APPELLANT) (RESPONDENT) P.A. NUMBER : AAACH3480L ASSESSEE BY : SHRI VIJAY MEHTA & SHRI DHARMESH SHAH REVENUE BY : DR. P. DANIEL SPL. COUNSEL DATE OF HEARING : 07/10/2014 DATE OF PRONOUNCEMENT : 07/10/2014 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 19/11/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MUM BAI. THE ASSESSEE RAISED THE FOLLOWING GROUNDS- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND IN FACTS IN PASSING THE ORDER U/S 250 OF THE AC T. 2 M/S HARSH E STATES PVT. LTD. 2. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRE D IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FRO M ATTACHED ASSETS CAN BE ASSED IN THE HANDS OF THE APPELLANT. 4. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ER RED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AM OUNTING TO RS.1,07,81,528/- TOWARDS INTEREST EXPENDITURE CLAIM ED BY THE APPELLANT. 5. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRE D IN LAW AND IN FACTS IN CONFIRMING CALCULATION OF BOOK PROF IT U/S. 115JB AMOUNTING TO RS.1,25,46,114/-. 6. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) HAS ERRE D IN LAW AND IN FACTS IN CHARGING INTEREST U/S 234A, 234B, A ND 234C OF THE ACT. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASS ESSEE SHRI VIJAY MEHTA DID NOT PRESS GROUND NOS. 1 TO 3 IN THE GROUN DS OF APPEAL TO WHICH THE SPECIAL COUNSEL FOR THE REVENUE HAD ALSO NO OBJ ECTIONS, THEREFORE, THESE GROUNDS ARE DISMISSED AS NOT PRESSED. 3. GROUND NO. 4 PERTAINS TO NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS.1,07,81,528/- TOWARDS INTEREST EXPENDITURE CL AIMED BY THE ASSESSEE. IT WAS CONTENDED THAT IDENTICAL ISSUE WA S DECIDED FOR A.Y. 2000-01 IN THE CASE OF ASSESSEE ITSELF (ITA NO.5139 /M/2012) ORDER DATED 06/11/2013, WHEREIN THE ISSUE WAS SET-ASIDE TO THE FILE OF THE LD. CIT(A) FOR WHICH OUR ATTENTION WAS INVITED TO PAGES 1 TO 3 OF THE PAPER-BOOK. IT 3 M/S HARSH E STATES PVT. LTD. WAS ALSO POINTED OUT THAT IDENTICALLY THE ISSUE WAS DECIDED IN THE CASE OF ZEST HOLDINGS PVT. LTD., RELATED CONCERNS, FOR A.Y. 2 009-10 (ITA NO.5216/M/2012) ORDER DATED 18/08/2014 FOR WHICH OU R ATTENTION WAS INVITED TO PAGES 4 TO 6 OF THE PAPER-BOOK. THIS FA CTUAL MATRIX WAS NOT CONTROVERTED BY THE LD. SPECIAL COUNSEL BEING MATTE R OF RECORD. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. AS CANVASSED BY THE LD. COUN SEL , WE FIND THAT IDENTICAL ISSUE AROSE BEFORE THE BENCH FOR A.Y. 2000 -01 AND FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S EMINENT HOLDINGS PVT. LTD. (ITA NO. 8200/M/2010 & 8353/M/2010), WHEREIN THE DE CISION OF THE COORDINATE BENCH IN THE CASE OF HITESH S. MEHTA (IT A NOS.7726 & 7727/M/2010) WAS FOLLOWED AND FINALLY THE ISSUE WAS SET-ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION WITH A DIR ECTION TO GRANT A REASONABLE OPPORTUNITY OF BEING HEARD ON THE ISSUE AND THUS WAS ALLOWED FOR STATISTICAL PURPOSES. FOLLOWING THE REASONING, BEING IDENTICAL FACTS/ISSUE BEFORE US WE REMAND THIS ISSUE TO THE F ILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. NEEDLES TO MENTION HERE THAT D UE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHE R LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, TH IS GROUND OF THE ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOSES O NLY. 4. THE NEXT GROUND PERTAINS TO CONFIRMING CALCULATI ON OF BOOK PROFIT U/S 115JB OF THE ACT AMOUNTING TO RS. 1,25,46,114/- . SINCE, WE HAVE REMANDED THE AFORESAID GROUND I.E. NO.4 TO THE FILE OF THE LD. CIT(A), THEREFORE, THE GRIEVANCE OF THE ASSESSEE WILL DEPEN D UPON THE OUTCOME OF THE DECISION TO BE TAKEN WITH RESPECT OF AFORESAID GROUND NO. 4. CONSEQUENTLY, THIS GROUND IS CONSEQUENTIAL TO THE A BOVE, THEREFORE IS ALSO 4 M/S HARSH E STATES PVT. LTD. ALLOWED FOR STATISTICAL PURPOSES WITH A DIRECTION T O DECIDE IT A FRESH AS PER THE PROVISION OF THE LAW AFTER GIVING FINDING ON TH E CLAIM OF INTEREST THUS THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 5. SO FAR AS, CHARGING OF INTEREST U/S 234A, 234B A ND 234C IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE CONTENDE D THAT IT MAY BE SENT TO THE FILE OF THE LD. ASSESSING OFFICER. HOWEVER, THE LD. SPECIAL COUNSEL CONTENDED THAT THE LEVY OF INTEREST IS MANDATORY TH EREFORE IT SHOULD BE DECIDED AGAINST THE ASSESSEE. HOWEVER THE LD. COUN SEL FOR THE ASSESSEE CONTENDED THAT IT MAY BE SENT TO THE ASSESSING OFFI CER FOR ACTUAL CALCULATION PURPOSES ONLY. AGREED, LEVY OF INTERES T IS MANDATORY AND SOMETIMES CONSEQUENTIAL DEPENDING UPON THE FACTS OF EACH CASE. WE NOTE THAT IDENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN T HE AFORESAID CASES THEREFORE FOLLOWING THE REASONING CONTAINED THEREIN WE DIRECT THE ASSESSING OFFICER TO RECOMPUTED THE INTEREST LIABIL ITY AFTER REDUCING THE AMOUNT OF TAX DEDUCTABLE AT SOURCE. WE DIRECT ACCO RDINGLY, THUS, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. THE LD . AO IS TO DECIDE AS PER THE PROVISIONS OF THE LAW. 6. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F HEARING ON 07/10/2014. SD/- SD/- N.K.BILLAIYA JOGINDER SINGH ACCOUNTANT MEMBER JUD ICIAL MEMBER 5 M/S HARSH E STATES PVT. LTD. MUMBAI, DATED -07/10/2014 . ./ SHEKHAR. P.S. '& '& '& '& ' '' ' () () () () *%) *%) *%) *%) / COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. (-+, / THE RESPONDENT. 3. . ( ) / THE CIT(A)- 4. . / CIT 5. /0 () , , / DR, ITAT, MUMBAI 6. 01 2 / GUARD FILE. '& '& '& '& / BY ORDER, -) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI