DCIT CEN CIR-6, MUMBAI V. EVERSMILE CONSTRUCTION CO./ P. LTD, MUMBAI

ITA 4239/MUM/2010

• Counselvise Citation: 423919914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 24-08-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 25-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAVAN VED
• Assessee Lawyers: AARTI VISSANJI
• Keywords: Revised return
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVAN , JM ITA NO.4239, 4240, 4241, 4242 & 4243/MUM/2010 ASST.YEARS 2002-2003, 2003-2004, 2004-2005, 2005-2 006 & 2006-2007 THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 6 MUMBAI. VS. M/S.EVERSMILE CONSTRUCTION CO.PVT.LTD. CONWOOD HOUSE, YASHODHAM DINDOSHI GENA.K.VAIDYA MARG, GOREGAON (EAST) MUMBAI 400 063. PAN :AAACE0875E. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PAVAN VED RESPONDENT BY : MS.AARTI VISSANJI DATE OF HEARING : 24.08.2011 DATE OF PRONOUNCEMENT : 30.08.2011 O R D E R PER BENCH : THIS BATCH OF FIVE APPEALS BY THE REVENUE RELATES T O THE ASSESSMENT YEARS 2002-2003 TO 2006-2007. SINCE COMMON ISSUE IS RAISE D IN ALL THESE APPEALS, WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSE E ON THE INCOME DISCLOSED BY HIM IN THE RETURN OF INCOME FILED U/S. 153A IGNORING THE FACT THAT THE ASSESSING OFFICER HAS MERELY ASSESSED THE TOTAL INCOME AT THE RETURNED INCOME. ITA NOS.4239 TO 4243/MUM/2010 M/S.EVERSMILE CONSTRUCTION CO.PVT.LTD. 2 (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DETERMINING THE TOTAL INCOME AT A FIGURE LOWER THAN THE RETURNED INCOME IGNORING THE FACT THAT THE ASSESSEE DID NOT RESORT TO THE PROVISIONS OF FILING REVISED RETURN W ITHIN THE PRESCRIBED TIME AS IT ENVISAGED BY THE SUPREME COURT IN THE CA SE OF GOETZ (INDIA) LTD. 284 ITR 323. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE APPEAL OF THE REVENUE IN THE CASE OF TH E ASSESSEE FOR ASSESSMENT YEAR 2001-2002, WHICH WAS HEARD ALONG WITH THE PRESENT A PPEALS, HAS BEEN DISPOSED OFF BY US VIDE A SEPARATE ORDER BY UPHOLDING THE IMPUGN ED ORDER. THE GROUNDS TAKEN IN THAT APPEAL ARE IDENTICAL TO THOSE FOR THE YEARS IN QUESTION. BOTH THE SIDES ARE IN AGREEMENT THAT FACTS AND CIRCUMSTANCES OF THE APPEA LS FOR ASSESSMENT YEARS 2002- 2003 AND 2004-2005 ARE MUTATIS MUTANDIS SIMILAR TO ASSESSMENT YEAR 2001-2002. IN VIEW OF OUR DECISION TAKEN IN ASSESSMENT YEAR 20 01-2002, WE UPHOLD THE IMPUGNED ORDER FOR ASSESSMENT YEARS 2002-2003 AND 2 004-2005. 4. INSOFAR AS THE OTHER THREE YEARS IN THIS BATCH OF APPEALS ARE CONCERNED, THE ONLY DISTINGUISHING FEATURE IS THAT ORIGINAL ASSESS MENTS WERE NOT MADE U/S.143(3). WHILE FILING THE RETURNS IN RESPONSE TO NOTICE U/S. 153A, THE ASSESSEE IN THE SAME MANNER INITIALLY MADE THE DISALLOWANCE AND THROUGH NOTES TO THE COMPUTATION OF INCOME, CLAIMED DEDUCTION FOR THE INTEREST. THE ASS ESSING OFFICER DID NOT ALLOW SUCH DEDUCTION FOR INTEREST, WHICH THE LEARNED CIT( A) DID TO THE EXTENT MENTIONED IN THE IMPUGNED ORDERS. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN OTHER YEARS VIZ. 2003-2004, 2005-2006 AND 2006-2007 REMAIN THE SAME AS THEY ARE IN ASSESSMENT YEAR 2001-2002, 2002-2003 AND 2004-2005. THIS DISTINGUISHING FEATURE, AS NOTED ABOVE, HAS NO BEARING ON OUR DEC ISION ABOUT THE DEDUCTIBILITY OF INTEREST AS PER THE REMAND REPORT OF THE ASSESSING OFFICER. FOLLOWING THE VIEW ITA NOS.4239 TO 4243/MUM/2010 M/S.EVERSMILE CONSTRUCTION CO.PVT.LTD. 3 TAKEN BY US BY WAY OF DETAILED ORDER IN APPEAL FOR ASSESSMENT YEAR 2001-2002, WE UPHOLD THE IMPUGNED ORDERS. 5. IN THE RESULT, ALL THE APPEALS STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF AUGUST, 2011. SD/- SD/- (ASHA VIJAYARAGHAVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 30 TH AUGUST, 2011. DEVDAS*` COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXVI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.