RASILA S. METHA, MUMBAI V. DCIT CC 23, MUMBAI

ITA 3683/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84283 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 25-11-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 06-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P DANIEL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI , !' #$% , !& ! ' BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NOS. 3683 & 3684/MUM/2011 ( ( ( ( ( / ASSESSMENT YEARS : 2000-01 & 2001-02 RASILA S. MEHTA, 32, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 / VS. THE DCIT, CC-23, MUMBAI ) !& ./ * ./ PAN/GIR NO. : ABNPM 8219R ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY: SHRI VIJAY MEHTA SHRI DHARMESH SHAH SHRI NILESH MEHTA ,-)+ / . ! / RESPONDENT BY: SHRI P. DANIEL / 0& / DATE OF HEARING :25.11.2014 12( / 0& / DATE OF PRONOUNCEMENT :28.11.2014 !3 / O R D E R PER N.K. BILLAIYA, AM: THESE TWO APPEALS BY THE ASSESSEE ARE PREFERRED AG AINST TWO SEPARATE ORDERS OF THE LD. CIT(A)-40, MUMBAI DT.15. 2.2011 PERTAINING TO A.YRS.2000-01 & 2001-02. BOTH THESE APPEALS HAVE C OMMON ISSUES THEREFORE THEY WERE HEARD TOGETHER AND DISPOSE OF B Y THIS COMMON ORDER. ITA NOS. 3683 & 3684/M/11 2 2. IN BOTH THE APPEALS, THE ASSESSEE HAS RAISED ADD ITIONAL GROUND. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING THE ADDITIONAL GROUND. THE ADDITIONAL GROUND IS AC CORDINGLY DISMISSED AS NOT PRESSED. ITA NO. 3683 & 3684/M/2011- A.Y. 2000-01 & 2001-02 3. THE ASSESSEE HAS RAISED FOUR SUBSTANTIVE GROUNDS OF APPEAL. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THA T HE IS NOT PRESSING GROUND NO. 1,2 & 4. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRESSED. SIMILARLY IN ITA NO. 3684/M/2011, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT HE IS NOT PRESSING GROUND NO. 1,2 & 3. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRESSED. 4. THE ONLY SURVIVING GROUND IN BOTH THE YEARS RELA TES TO THE DISALLOWANCE ON ACCOUNT OF INTEREST EXPENSES AMOUNT ING TO RS. 1,71,91,809/- IN A.Y. 2000-01. THE LD. COUNSEL MOD IFIED THE QUANTUM VIDE LETTER DT. 25.11.2014. THE IMPUGNED DISALLOWA NCE OF INTEREST IS NOW RS. 91,73,162/- IN A.Y. 2000-01 AND THE DISALLOWANC E OF INTEREST OF RS. 1,71,48,020/- IN A.Y. 2001-02 STANDS MODIFIED AT RS . 97,85,784/-. 4.1. IN BOTH THE YEARS, THE APPEAL IS LATE BY 11 DA YS. IN THE APPLICATION FOR THE CONDONATION OF DELAY, IT IS MENTIONED THAT THE FAMILY MEMBERS ARE NOTIFIED PERSONS AND ALL ASSETS ARE ATTACHED ASSESS EES SON SHRI ASHWIN MEHTA WAS HEAVILY OCCUPIED IN WORK RELATING TO TAX AND OTHER LITIGATION. DUE TO OVERSIGHT AND THE NON AVAILABILITY OF ASSES SEES SON, THE APPEAL WAS FILED LATE BY 11 DAYS. THE ASSESSEE HAS PRAYED FOR THE CONDONATION OF DELAY. ITA NOS. 3683 & 3684/M/11 3 4.2. IN OUR CONSIDERED OPINION, THE ASSESSEE DOES N OT STAND TO BENEFIT BY LODGING AN APPEAL LATE AND WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE C AUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED. WE, ACCORDINGLY CONDONE THE DELAY FOR BOTH THE YEARS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THE CLAIM OF INTEREST IS OUT OF THE CONTRACTUAL OBLIGATION AND T HEREFORE DESERVES TO BE ALLOWED. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OBJECTED TO THIS AND BROUGHT TO OUR NOTICE THE DECISION OF T HE TRIBUNAL IN THE CASE OF DIVINE HOLDING PVT. LTD. IN ITA NOS. 8199 & 734 6/M/2010. IT IS THE SAY OF THE LD. DR THAT ON IDENTICAL SET OF FACTS, T HE TRIBUNAL HAS DISMISSED THE CLAIM OF INTEREST BY THE ASSESSEE. 7. A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A) SHOWS THAT AT PARA 5.4 OF HIS ORDER, HE HAS FOLLOWED THE DECISION IN T HE CASE OF HITESH S. MEHTA SON OF THE ASSESSEE FOR A.Y. 2005-06. THE LD . CIT(A) HAS ALSO INCORPORATED HIS FINDINGS IN THE CASE OF HITESH S. MEHTA AND FOLLOWING THE FINDINGS IN THE SAID ORDER, THE GROUND OF APPEAL WI TH RESPECT TO THE CLAIM OF INTEREST EXPENSE IS DISMISSED. 7.1. IN THE CASE OF HITESH S. MEHTA, WE FIND THAT THE TRIBUNAL IN ITA NOS. 7726 & 7727/M/2010 HAS RESTORED THIS ISSUE TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE AFRESH ALONG WITH THE ADJUDICA TION OF THE OTHER GROUND PERTAINING TO THE REJECTION/RELIABILITY OF T HE BOOKS OF ACCOUNT. SINCE THE LD. CIT(A) HAS FOLLOWED HIS OWN DECISION IN THE CASE OF HITESH S. MEHTA, RESPECTFULLY FOLLOWING THE FINDINGS OF TH E TRIBUNAL IN THE CASE ITA NOS. 3683 & 3684/M/11 4 OF HITESH S. MEHTA AS MENTIONED HEREINABOVE, THE IS SUE IS RESTORED TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN THE LINE OF THE DIRECTIONS GIVEN IN THE CASE OF HITESH S. MEHTA. 8. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2014 SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 4 DATED : 28 TH NOVEMBER, 2014 . . ./ RJ , SR. PS !3 !3 !3 !3 / // / ,0 ,0 ,0 ,0 5!(0 5!(0 5!(0 5!(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 78 ,0 , , / DR, ITAT, MUMBAI 6. 8 9 / GUARD FILE. !3 !3 !3 !3 / BY ORDER, -0 ,0 //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI