DIVINE HOLDINGS P.LTD, MUMBAI V. ASST CIT CEN CIR 31, MUMBAI

ITA 5217/MUM/2012

• Counselvise Citation: 521719914 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 17-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: DHARMESH SHAH
• Section: 234B; 115JB

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - D BENCH. . . .. . . .. . !' !' !' !' , ! ! ! ! BEFORE S/SH.I.P.BANSAL, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER ./ ././ ./ ITA NO.5217/MUM/2012, $ % $ % $ % $ %/ // / ASSESSMENT YEAR-2009-10 DEVINE HOLDINGS PVT.LTD. 32,MADHULI,3 RD .FLOOR, DR.ANNIE BESANT RD.MUMBAI-18 VS. ACIT CENTRAL CIRCLE -31 MUMBAI- 400020 PAN: AAACD4959J ( &' / // / APPELLANT ) ( ()&' / RESPONDENT ) $ *+ , ! $ *+ , ! $ *+ , ! $ *+ , ! / // / APPELLANT BY : SHRI DHARMESH SHAH - , ! / REVENUE BY : SHRI DR. P. DANIEL $ - + $ - + $ - + $ - + / // / DATE OF HEARING : 09-10-2013 ./% - + / DATE OF PRONOUNCEMENT : 11-10-2013 $ $ $ $ , 1961 1961 1961 1961 - - - - 254 254 254 254( (( (1 11 1) )) )! +8+ !9 ! +8+ !9 ! +8+ !9 ! +8+ !9 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM: CHALLENGING THE ORDER DATED 26.06.2010 OF THE CIT(A )-40,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN PASSING THE ORDER U/S. 250 OF THE ACT. 2.THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATU RAL JUSTICE. 3.THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM ATTACHED ASSETS CAN BE ASSESSED IN THE HANDS OF THE APPELLANT. 4.THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS.8,09,700/-,TOWA RDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING CALCULATION OF BOOK PROFIT U/S. 115JB AMOUNTING TO RS. 74,06,907/-. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING INTEREST CHARGED U/S. 234A, 234B AND 234C OF THE AC T. 7.THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO ADD TO, ALTER, AMEND AND/ OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND OF APP EAL AND SAME READS AS UNDER: 1.THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT AS PER THE DECISION OF HONBLE SPECIAL COURT DATED 30. 04.2010 IN MP NO. 41 OF 1999, THE ASSETS UNDER CONSIDERATIO N AND THE CONSEQUENTIAL INCOME BELONGS TO SHRI HARS HAD S. MEHTA AND HENCE THE INCOME ASSESSED BY THE ASSESSIN G OFFICER OUGHT TO HAVE BEEN TAXED IN THE HANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE HANDS OF THE APPELL ANT. 2 ITA NO. 5217/MUM/2012 DEVINE HOLDINGS PVT.LTD VIDE LETTER DATED 04.10.2013 ASSESSEE-COMPANY MADE A REQUEST TO ADMIT THE ABOVE MENTIONED ADDITION GROUND.WE FIND THAT SIMILAR ADDITIONAL GRO UND WAS RAISED IN THE CASE OF SH.HITESH S MEHTA,DIRECTOR OF THE COMPANY FOR THE AY.1994-95,19 95-96 AND 2001-02(ITA/5587 TO5589 / MUM /2011,5068/MUM/ 2011 AND 5867-68/MUM/2011)ONE O F US,WAS PARTY TO THAT ORDER.IN THAT ORDER ADDITIONAL GROUND WAS DEALT AS UNDER: 4. THE ASSESSEE HAS ALSO FILED AN APPLICATION DATED 27 -5-2010 FOR ADMITTING THE FOLLOWING GROUND :- 1.THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT AS PER THE DECISION OF HONBLE SPECIAL COURT DATED 30.04.2010 IN M.P. NO.4 1 OF 1999, THE ASSETS UNDER CONSIDERATION AND THE CONSEQUENTIAL INCOME BELONGS TO SHRI HARSHAD S. MEHTA AND HENCE, THE INCOME ASSESSE D BY THE ASSESSING OFFICER OUGHT TO HAVE BEEN TAXED IN THE HANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE H ANDS OF THE APPELLANT. 5. AFTER GOING THROUGH THE ADDITION GROUND FILED BY TH E ASSESSEE, WE NOTED THAT THE GROUND IS LEGAL GROUN D, WHICH DOES NOT REQUIRE ANY NEW FACTS TO BE BROUGHT ON RECORD. IN VIEW OF THE DECISION OF THE HONBLE A PEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, REPORTED IN (1998) 229 ITR 383, THE LEGAL GROUND CAN BE ADMITTED, IF NO NEW FACTS ARE TO BE B ROUGHT ON RECORD.HOWEVER, AFTER GOING THROUGH THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR ALL TH E ASSESSMENT YEARS INVOLVED HERE BEFORE US, WE FOUN D THAT THE GROUND IS FULLY ACADEMIC IN NATURE FOR THE REAS ON THAT IF THE HONBTE SUPREME COURT DECIDES SOMETH ING THAT HAS TO BE FOLLOWED WITHOUT ANY DISPUTE.THE DEC ISION OF THE HONBLE APEX COURT IS LAW OF LAND,WHIC H HAS TO BE FOLLOWED BY EVERY AUTHORITY THEREFORE IN OUR VIEW, NO DIRECTION IS TO BE REQUIRED TO BE GIVEN TO THE AO IN THIS RESPECT BECAUSE IF THE HONBLE APEX COURT DECI DES THAT ALL THE INCOME BELONGS TO SHRI HARSHAD S. MEHTA, THEN THE INCOME HAS TO BE ASSESSED IN THE HANDS OF SHRI HARSHAD S.MEHTA, NOT IN THE HANDS OF ANY OTHER PERSON.THEREFORE, IN OUR VIEW, THERE IS NO NEED TO ISSUE ANY DIRECTION AS THE DECISION OF THE HONBLE SUPREME COURT HAS TO BE FOLLOWED IN ANY CASE,ACCORDINGLY BY ADMITTING THE GROUNDS RAISED BY THE ASSESSEE FOR A LL THE YEARS,WE TREAT THE SAME AS ACADEMIC IN NATURE. FOLLOWING THE ABOVE WE ADMIT THE ADDITIONAL GROUND TREATING THE SAME AS ACADEMIC IN NATURE. 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF TRADING AND INVESTING IN SECURITIES,FILED ITS RETURN OF INCOME ON 27.9.2009DECLARING TOTAL INCOME OF RS. 65,88,907/-.ASSESSING OFFICER(AO)FINALISED THE ASSESSMENT ORDER U/S.143(3) OF THE ACT,ON 24.10 .2011,DETERMINING THE TOTAL INCOME AT RS. 74,08,610/-. 2.1. DURING THE COURSE OF HEARING BEFORE US,AUTHRORISED REPRESENTATIVE(AR) OF THE ASSESSEE DID NOT PRESS GROUNDS OF APPEAL NO.1,2,3,5.THEREFORE,GR OUNDS NO.1-3 AND 5 STAND DISMISSED AS NOT PRESSED. 3 .GROUND NO.4 IS ABOUT DISALLOWANCE OF INTEREST EXPE NSE AMOUNTING TO RS. 8,09,700/-.DURING THE COURSE OF HEARING AR SUBMITTED THAT IDENTICAL ISSUE OF DISALLOWANCE OF INTEREST WAS DECIDED BY THE TRIBUANL,IN THE CASES OF MEMBERS OF MEHTA FAMIL Y.HE REFERRED TO THE ORDERS PASSED BY THE MUMBAI TRIBUNAL IN THE CASES OF SH.HITESH MEHTA(ITA NOS.5587-89/MUM/2011,AY.1994-95 DATED 12.06.2013AND ITA7726/MUM/2010,AY.2005-06-DTD .26.04.2013)PRATIMA METHA(ITA/ 7871-73/MUM/2010,AYS.2005-06,2006-07 AND 2007-08-DT D.02.08.2013)AND DEEPIKA A MEHTA (ITA/263/MUM/2011,AY-DTD.19.09.2013).DEPARTMENTAL R EPRESENTATIVE RELIED UPON THE ORDERS OF THE AO. 3.1. WE FIND THAT TRIBUNAL HAS SET ASIDE THE ISSUE OF DI SALLOWANCE OF INTEREST IN THE CASE OF HITESH MEHAT,PRATIMA MEHTA AND DEEPIKA MEHTA TO THE FILES OF THE AOS,WHILE DECIDING THE APPEALS FILED BY THEM FOR VARIOUS AYS.FOLLOWING THE ABOVE MENTION ED ORDERS OF THE COORDINATING BENCHES,WE RESTORE THE ISSUE OF DISALLOWANCE OF INTEREST TO TH E FILE OF THE AO FOR FRESH ADJUDICATION.HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY OF HEAR ING TO THE ASSESSEE-COMPANY. 3 ITA NO. 5217/MUM/2012 DEVINE HOLDINGS PVT.LTD AS A RESULT,APPEAL FILED BY THE ASSESSEE IS ALL OWED IN PART. * : $ *+ - 9 : ! ; - + <=. ORDER PRONOUNCED IN TH E OPEN COURT ON 11 TH OCTOBER,2013 . !9 - ./% ! > ?$ 11 @A ; , 2013 / - 8 D SD/- SD/- ( . .. . . / I.P.BANSAL ) ( !' !' !' !' / RAJENDRA) / JUDICIAL MEMBER ! ! ! ! /ACCOUNTANT MEMBER / MUMBAI, ?$ /DATE: 11 .10. 2013 SK !9 - (+E F!E%+ !9 - (+E F!E%+ !9 - (+E F!E%+ !9 - (+E F!E%+/ COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / &' 2. RESPONDENT / ()&' 3. THE CONCERNED CIT(A)/ G H , 4. THE CONCERNED CIT/ G H 5. DR D BENCH, ITAT, MUMBAI / EI8 (+$ , ... 6. GUARD FILE/ 8 J )E+ (+ )E+ (+ )E+ (+ )E+ (+ //TRUE COPY// !9$ / BY ORDER, K/< DY./ASST. REGISTRAR , /ITAT, MUMBAI