TOPAZ HOLDING P. LTD, MUMBAI V. DCIT CC 31, MUMBAI

ITA 4069/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1751 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 02-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NO.4069/MUM/2009 : ASST.YEAR 2006-2007 M/S.TOPAZ HOLDINGS PRIVATE LIMITED 32, MADHULI, 3 RD FLOOR DR.ANNIE BESANT ROAD, NEHRU CENTRE WORLI, MUMBAI 400 018. PA NO.AAACT5152F. VS. THE DY.COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 31 MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : DR.P.DANIEL O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 6.4.2009 IN RELATION TO THE ASSESSMENT YEAR 2006-2007. 2. GROUND NOS. 1 TO 3 WERE NOT PRESSED BY THE LEARN ED A.R. THESE THEREFORE STAND DISMISSED. SIMILARLY GROUND NO.5 ABOUT THE D ISALLOWANCE OF AUDIT FEES OF RS.15,000 WAS ALSO NOT PRESSED BY THE LEARNED A.R. THE SAME IS ALSO DISMISSED. 3. GROUND NO.4 IS AGAINST THE CONFIRMATION OF DISAL LOWANCE ON ACCOUNT OF INTEREST EXPENDITURE AMOUNTING TO RS.2,25,309. AT T HE VERY OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT SIMILAR ADD ITION MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEARS 2004-2005 AND 2005-2006 BECAME THE SUBJECT MATTER OF ADJUDICATION BEFORE THE TRIBUNAL AND MATTER HAS SINCE BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF CIT(A) FOR FRESH DECISION. A COPY OF THE SAID ORDER IN ITA NO.6893 & 7230/MUM/08 DATED 21.12.2009 WAS PLACED O N RECORD. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE PERUSAL OF THE TRIBUNAL ORDER, ADMITTED THAT THE FACTS WERE SIMILAR. IN VIEW OF THE RIVAL BUT CO MMON SUBMISSIONS WE SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND REMIT THE MATT ER TO THE FILE OF THE LEARNED ITA NO.4069/MUM/2009 M/S.TOPAZ HOLDINGS PRIVATE LIMITED. 2 CIT(A) FOR TAKING A FRESH DECISION IN TERMS OF THE DIRECTION GIVEN BY THE TRIBUNAL IN THE AFORENOTED ORDER. 4. GROUND NO.6 IS AGAINST THE CONFIRMATION OF CALCU LATION OF BOOK PROFIT U/S.115JB AMOUNTING TO RS.1,37,983. ON THIS ISSUE A LSO, THE LEARNED A.R. CONTENDED THAT SIMILAR GROUND WAS INVOLVED IN ASSESSMENT YEAR 2004-2005 AND THE TRIBUNAL WAS PLEASED TO REMIT THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR FRESH DECISION ON MERITS. IN THE ABSENCE OF ANY DISTINGUISHING FEA TURE HAVING BEEN BROUGHT TO OUR NOTICE BY THE LD. DR, RESPECTFULLY FOLLOWING THE PR ECEDENT WE SET ASIDE THE IMPUGNED ORDER ON THIS SCORE AND SEND THE MATTER T O THE FILE OF THE LEARNED CIT(A) FOR DECIDING IT AFRESH IN ACCORDANCE WITH THE DIREC TION CONTAINED IN THE ABOVEMENTIONED ORDER OF THE TRIBUNAL FOR EARLIER YE ARS. 5. LAST GROUND REGARDING LEVY OF INTEREST U/SS. 234 A, 234B AND 234C IS ALSO SIMILAR TO SUCH GROUNDS RAISED IN ASSESSMENT YEAR 2 004-2005. VIDE PARA 10 OF THE TRIBUNAL ORDER, THE MATTER HAS BEEN SENT BACK TO T HE FILE OF THE LEARNED CIT(A) FOR DECIDING THIS ISSUE AFRESH ON MERITS. RESPECTFULLY FOLLOWING THE PRECEDENT WE SET ASIDE THE IMPUGNED ORDER ON THIS POINT AND SEND TH E MATTER BACK TO HIM WITH A DIRECTION TO DECIDE IT AFRESH IN TERMS OF THE DIREC TIONS CONTAINED IN THE ABOVE REFERRED TRIBUNAL ORDER. 6. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 11 TH DAY OF JUNE, 2010 . SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 11 TH JUNE, 2010 . DEVDAS* ITA NO.4069/MUM/2009 M/S.TOPAZ HOLDINGS PRIVATE LIMITED. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A)CENTRAL-IV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.