BAB DEVELOPERS PVT. LTD., MUMBAI V. ITO 2 (1)(1), MUMBAI

ITA 5978/MUM/2018

• Counselvise Citation: [2019] 113 COUNSELVISE.COM (IT) 6349 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Assessee Lawyers: ARATHI SATHE
• Keywords: Business income; Opportunity of being heard
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, HON'BLE ACCOUNTANT MEMBER ITA NO. 5978 /MUM/201 8 (A.Y: 201 2 - 13) BAB DEVELOPERS PVT. LTD., 144 VT MANSION PERIN NARIMAN STREET FORT, MUMBAI 400 001 PAN: AACCB1833F V. INCOME TAX OFFICER 2( 1)(1) ROOM NO. 561, 5 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. ARATHI SATHE DEPARTMENT BY : SHRI AKHT AR H. ANSARI DATE OF HEARING : 13.11.2019 DATE OF PRONOUNCEMENT : 13.11.2019 O R D E R PER C. N. PRASAD (JM) 1. T HIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 3, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 11.06.2018 FOR THE A.Y. 2012 - 13. 2. A SSESSEE IN ITS APPEAL CHALLENGED TH E ORDER OF THE LD.CIT(A) IN CONSIDERING THE INTEREST INCOME FROM BANK DEPOSIT S UNDER THE HEAD 2 ITA NO. 5978 /MUM/201 8 (A.Y: 201 2 - 13) BAB DEVELOPERS PVT. LTD., INCOME FROM OTHER SOURCES INSTEAD OF BUSINESS INCOME AS CLAIMED BY THE ASSESSEE . 3. LD. COUNSEL FOR THE ASSESSEE , AT THE OUTSET SUBMITS THAT ASSESSING OFFICER W HILE COMPLETI NG THE ASSESSMENT ASSESSED INCOME FROM BANK DEPOSITS PENDING LITIGATION IN THE HON'BLE HIGH COURT ON THE PROSPECTIVE BUYERS , ASSESSED INTEREST INCOME ON DEPOSITS KEPT IN BANK UNDER THE HEAD INCOME FROM OTHER SOURCES AS AGAINST THE CLAIM FOR ASSESSING THE SAID INTEREST UNDER THE HEAD BUSINESS INCOME. IT IS STATED THAT THESE ADVANCE S WERE RECEIVED FROM THE CUSTOMERS IN RESPECT OF KURLA PROJECT AND SINCE THE MATTER WENT INTO LITIGATION AND THE CASE IS PENDING BEFORE THE HON'BLE HIGH COURT , THE ADV ANCES WERE KEPT IN BANK DEPOSITS . LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE TREATMENT OF THE ASSESSING OFFICER IN ASSESSING T HE INTEREST INCOME FROM DEPOSITS UNDER THE HEAD INCOME FROM OTHER SOURCES HAS BEEN AFFIRMED BY THE LD.CIT(A) . 4. LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE ADDITIONAL GROUND FILED BY THE ASSESSEE CONTEND ED THAT IF THE REVENUE IS CONSIDERING INTEREST INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES THEY SHOULD HAVE ALSO CONSIDERED ALLOWING EXPENSES LIKE LEGAL FEES, SECRETARIAL FEES, AUDIT FEES ETC., AGAINST THE SAID INTEREST INCOME . 3 ITA NO. 5978 /MUM/201 8 (A.Y: 201 2 - 13) BAB DEVELOPERS PVT. LTD., 5. O N A QUERY BY THE BENCH AS TO WHETHER THIS CONTENTION WAS RAISED BEFORE THE LD.CIT(A) IT IS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THIS CONTENTION HAS BEEN RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. CONSIDERING THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE SINCE THIS CONTENTION HAVE NOT BEEN RAISED THE BEFORE THE LD.CIT(A) , WE ARE OF THE VIEW THAT THIS ISSUE H AS TO BE EXAMINED BY THE LD.CIT(A). LD. DR HAS NO SERIOUS OBJECTION IN SENDING BACK THIS GROUND TO THE FILE OF THE LD.CIT(A). ON HEARING BOTH SIDE S, WE RESTORE THIS GROUND RELATING TO ALLOWING EXPENSES AGAINST INCOME FROM OTHER SOURCES TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION. W E RESTORE THE MAIN GROUND OF APPEAL ALSO I.E. WHETHER THE INTEREST INCOME IS ASSESSABLE UNDE R THE H EAD BUSINESS OR OTHER SOURCES TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDIC ATION . THUS , WE REST ORE THIS APPEAL TO THE FILE OF THE LD.CIT(A) FOR D ENOVO ADJUDICATION , AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THE 13 TH NOVEMBER , 2019 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 13 / 11 / 201 9 GIRIDHAR , S R. PS 4 ITA NO. 5978 /MUM/201 8 (A.Y: 201 2 - 13) BAB DEVELOPERS PVT. LTD., COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM