DR. RAJNIKANT BHATT, THANE V. THE INCOME TAX OFFCER (IT) 3(1), MUMBAI

ITA 6192/MUM/2008

• Counselvise Citation: 619219914 RSA 2008
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: L
• Next Hearing Date: 10-08-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 16-10-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Keywords: Reopening of assessment; Income from undisclosed sources; Double taxation relief; Source of fund; Permanent establishment; Reassessment proceedings
• Section: 143(3); 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI J.SUDHAKAR R EDDY (A.M) ITA NO.6192/MUM/2008(A.Y. 2000-01) DR. RAJNIKANT BHATT, B-2, SATYANAND SOCIETY, DR. ALMEDIDA ROAD, NEAR TMC BLDG., CHANDANWADI, THANE 400 062. PAN:ADTPB 1040M (APPELLANT) VS. THE INCOME TAX OFFICER (IT)3(1), SCINDIA HOUSE, BALLARD ESTATE, MUMBAI. (RESPONDENT) APPELLANT BY : DR. K.SHIVRAM /SHRI SANJAY PA RIKH RESPONDENT BY : SHRI JITENDRA YADAV DATE OF HEARING : 10/08/2011 DATE OF PRONOUNCEMENT : 16/0 9/2011 ORDER PER N.V.VASUDEVAN, J.M, THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 25/8/2008 OF CIT(A)XXXIII, MUMBAI RELATING TO ASSESSMENT YEAR 20 00-01. 2. THE ASSESSEE IS AN INDIVIDUAL. HE IS A NON-RESI DENT. FOR ASSESSMENT YEAR 2000-01 THE ASSESSEE FILED A RETURN OF INCOME ON 30/8/2000 DECLARING TOTAL INCOME OF RS. 1,03,092/-. THE SAME WAS ACCEP TED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (THE ACT) WITHOUT ANY SCRU TINY. ALONGWITH THE SAID RETURN OF INCOME THE ASSESSEE HAD FILED CAPITAL ACC OUNT AND BALANCE SHEET AS ON 31/3/2000. 3. THERE WAS A SEARCH CONDUCTED IN THE CASE OF D.Y. PATIL GROUP ON 20/7/2005. IN THE COURSE OF SUCH SEARCH IT CAME TO LIGHT THAT VARIOUS EDUCATIONAL INSTITUTIONS RUN BY TRUSTS OF THE D.Y. PATIL GROUP WERE COLLECTING ITA NO.6192/MUM/2008(A.Y. 2000-01) 2 HUGE AMOUNT OF DONATIONS/CAPITATION FEE FROM STUDEN TS AT THE TIME OF ADMISSION TO VARIOUS COURSES. ONE SUCH INSTITUTION RUN BY THE D.Y.PATIL GROUP WAS RAMRAO ADIK EDUCATION SOCIETY, WORLI, MUMBAI (R AES). AT THE TIME OF SEARCH OF RAES CERTAIN DOCUMENTS WERE SEIZED. ONE SUCH DOCUMENT NAMELY ITEM NO.6 OF ANNEXURE-A2 WAS A DIARY. IN THE DIARY DETAILS OF DONATIONS RECEIVED FROM STUDENTS DURING THE FINANCIAL YEAR 19 99-2000(A.Y. 2000-01) AND DISBURSEMENT MADE HAD BEEN RECORDED. ON PAGE NO.9 AND 18 OF THIS DIARY THE NAME OF ONE MS. NEHA RAJNIKANT BHATT, DAUGHTER OF T HE ASSESSEE APPEARED. ON 8/6/1999 AND 6/7/1999 (ON PAGE 9 & 18 OF THE DIARY) AGAINST THE NAME OF MS. NEHA RAJNIKANT BHATT THE FIGURES 100 AND 490 RESPEC TIVELY WERE FOUND. ACCORDING TO THE REVENUE THE AFORESAID AMOUNTS WERE WRITTEN IN CODE AND 000 HAVE BEEN OMITTED. THUS ACCORDING TO THE REVENUE O N 8/6/99 AND 6/7/99 A SUM OF RS. 1.00 LAC AND RS.4,90,000/- RESPECTIVELY HAD BEEN PAID AS DONATION IN CONNECTION WITH THE ADMISSION OF MS. NEHA RAJNIK ANT BHATT. THE A.O FURTHER NOTICED THAT THERE WAS A NUMBER WRITTEN AGA INST NEHAS NAME, NAMELY 913919. THIS WAS THE NUMBER ASSIGNED TO THE APPLIC ATION OF MS. NEHA FOR ADMISSION TO THE COLLEGE. THERE WERE FURTHER WORDS RAIT REFERRING RAMRAO ADIK INFORMATION TECHNOLOGY(RAIT) AND THIS CORRESPONDED WITH THE COURSE AND INSTITUTE WHERE MS. NEHA HAD SOUGHT ADMISSION. 4. ON 12.3.2007, THE ADIT, INVESTIGATION -1, THANE WHO CONDUCTED THE SEARCH IN THE CASE OF D.Y.PATIL GROUP SUMMONED MS. NEHA FOR HER EXPLANATION REGARDING THE SOURCE OF FUNDS FOR MAKING THE PAYMEN T OF CAPITATION FEE. MRS. PALLAVI RAJNIKANT BHATT, THE WIFE OF THE ASSESSEE A ND MOTHER OF MS. NEHA WROTE TO THE ADIT, INV.1, THANE POINTING OUT THAT MS. NEH A WAS IN USA AND WAS NOT FILING INCOME TAX RETURNS. THEREUPON THE STATEMENT OF MRS. PALLAVI RAJNIKANT BHATT WAS RECORDED. IN HER STATEMENT, ON THE QUEST ION WITH REGARD TO THE DONATION PAID TO RAES, SHE SUBMITTED THAT SHE WAS N OT AWARE OF ANY DONATION HAVING BEEN PAID IN CONNECTION WITH THE ADDITION OF MS. NEHA FOR ENGINEERING COURSE AND THAT IF AT ALL ANY DONATION HAD BEEN PAI D, IT SHOULD BE ONLY WITHIN ITA NO.6192/MUM/2008(A.Y. 2000-01) 3 THE KNOWLEDGE OF HER HUSBAND MR. RAJNIKANT BHATT(TH E ASSESSEE) AND THAT HE WAS THE PERSON WHO INCURRED EXPENSES IN CONNECTION WITH EDUCATION OF MS. NEHA. IT WAS ALSO SUBMITTED BY HER THAT THE ASSESS EE AT THAT POINT OF TIME WAS AT ABU DHABI. MRS. PALLAVI WAS EXAMINED ON 13/ 3/2007. IT APPEARS THAT LATER ON SHE CONTACTED HER HUSBAND AND PERSONALLY A PPEARED BEFORE THE ADIT, INV.1, THANE AND INFORMED HIM THAT NO DONATION HAD BEEN PAID BY HER HUSBAND IN CONNECTION WITH ADMISSION OF MS. NEHA IN RAES. 5. THE ADIT/INVT.-1, THANE, SENT A LETTER TO THE AO IN CHARGE OF THE ASSESSMENT OF THE ASSESSEE, THE FACTS AS NARRATED A BOVE. ON RECEIPT OF THE ABOVE INFORMATION, THE AO SCRUTINIZED THE RETURN OF INCOME FILED BY THE ASSESSEE FOR A.Y 2000-01 AND NOTICED THAT THE CAPIT AL ACCOUNT OF THE ASSESSEE WHICH HAD BEEN FILED ALONGWITH RETURN OF INCOME AND IN SUCH CAPITAL ACCOUNT THE PAYMENT OF DONATION TO RAES HAD NOT BEEN REFLEC TED. THE AO, THEREFORE, RECORDED THE REASONS EXPRESSING HIS BELIEF THAT THE RE WAS ESCAPEMENT OF INCOME CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE. TH E REASONS WERE RECORDED ON 28/3/2007 AND THE APPROVAL OF THE COMMISSIONER REQU IRED UNDER SECTION 151(2) OF THE ACT WAS ALSO OBTAINED ON 28/3/2007. THEREAFTER A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE O N 28/3/2007. IN RESPONSE TO THE NOTICE, THE ASSESSEE SUBMITTED THAT THE RETU RN ORIGINALLY FILED MAY BE TREATED AS A RETURN FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. 6. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASS ESSEE DENIED HAVING PAID ANY DONATION. THE ASSESSEE ALSO GAVE DETAILS OF THE BANK ACCOUNT. THE DETAILS OF CASH WITHDRAWN FROM THE BANK ACCOUNT NAM ELY SB ACCOUNT NO.34452 WITH BANK OF BARODA, THANE(WEST) WAS ALSO FILED. THE DETAILS OF THE INFLOW AND OUTFLOW OF CASH DRAWN FROM THE SAID BANK ACCOUNT WE RE ALSO FILED. THE SAME IS AS FOLLOWS: ITA NO.6192/MUM/2008(A.Y. 2000-01) 4 R.R.BHATT CASH SUMMARY ASSESSMENT YEAR 2000-2001 OP BALANCE AS PER BALANCE SHEET 36,493 DATE ADD: DEPOSITS (WITHDRAWAL OF CASH FROM BANK A /C) 01-APR. BANK-34452 10,000 03-APR BANK-34452 5,000 26-APR BANK-34452 5,000 04-APR BANK-34452 15,000 03-JUN BANK- 34452 10,000 08-JUN BANK-34452 100,000 01-JUL BANK-34452 10,000 06-JUL BANK-34452 500,000 17-JUL BANK-34452 5,000 19-JUL BANK-34452 50,000 02-AUG BANK-34452 10,000 09-AUG BANK-34452 10,000 28-AUG BANK-34452 10,000 02-SEP SBI 15,000 14-SEP BANK-34452 5,000 04-OCT BANK-34452 60,000 20-OCT BANK-34452 55,000 01-NOV BANK-34452 10,000 03-NOV BANK-34452 50,000 04-NOV BANK-34452 60,000 12-NOV BANK-34452 5,000 16-NOV BANK-34452 5,000 29-NOV BANK-34452 50,000 03-DEC BANK-34452 10,000 08-DEC BANK-34452 50,000 21-DEC BANK-34452 55,000 03-JAN BANK-34452 10,000 08-JAN BANK-34452 25,000 01-FEB BANK-34452 10,000 14-FEB BANK-34452 100,000 02-MAR BANK-34452 10,000 11-MAR BANK-34452 5,000 1,330,000 ------------- ------------ ITA NO.6192/MUM/2008(A.Y. 2000-01) 5 1,366,49 3 DATE LESS: WITHDRAWALS (DEPOSIT OF CASH INTO THE BANK A/C.) APRIL DRAWINGS 10,000 MAY DRAWINGS 10,000 JUNE DRAWINGS 10,000 JULY DRAWINGS 10,000 24-JUL BANK-34452 40,000 AUGUST DRAWINGS 10,000 SEPTEMBER DRAWINGS 10,000 28-SEP BANK-34452 600,000 OCTOBER DRAWINGS 10,000 OCTOBER REPAIRS & MAINTENANCE 100,000 NOVEMBER DRAWINGS 10,000 NOVEMBER REPAIRS& MAINTENANCE 150,000 DECEMBER DRAWINGS 10,000 DECEMBER REPAIRS& MAINTENANCE 100,000 JANUARY DRAWINGS 10,000 JANUARY REPAIRS & MAINTENANCE 20,000 FEBRUARY DRAWINGS 10,000 FEBRUARY REPAIRS & MAINTENANCE 100,000 MARCH DRAWINGS 10,000 MARCH PPF(SON& DAUGHTER&SELF) 400 1,230,400 ---------- ------------ - CLOSING BALANCE 136,093 THE ASSESSEE FILED THE FOLLOWING SUMMARY OF THE CAS H AVAILABILITY POSITION. THE SAME IS AS FOLLOWS: OP. CASH BAL. RS. 36,493 ADD. WITHDRAWN FROM BANK RS. 13,30,000 --------------------- RS. 13,36,493 LESS: DRAWINGS /REP. & MAINTENANCE RS. 5,90,000 DEPOSITED IN BANK RS. 6,40,000 PPF RS. 400 ---------------------- CLOSING CASH BALANCE RS. 1,36,093 ITA NO.6192/MUM/2008(A.Y. 2000-01) 6 7. THE A.O HOWEVER, HELD THAT SINCE THE CAPITAL ACC OUNT FILED BY THE ASSESSEE ALONGWITH ORIGINAL RETURN OF INCOME DID NO T INDICATE THE PAYMENT OF DONATION OF RS. 5,90,000/- TO RAES, THE SAME WAS AN EXPENDITURE MADE BY THE ASSESSEE FROM UNEXPLAINED SOURCES. HE ACCORDINGLY ADDED A SUM OF RS. 5,90,000/- AS INCOME FROM UNDISCLOSED SOURCES UNDER THE HEAD INCOME FROM OTHER SOURCES. 8. FURTHER THE AO NOTICED THAT IN THE SB ACCOUNT IN THE BANK OF BARODA NO.34452 THERE WAS A DEPOSIT OF CASH OF RS. 40,000 AND RS. 6.00 LACS ON 24/7/1999 AND 28/9/99 RESPECTIVELY. THE ASSESSEE, AS WE HAVE ALREADY SEEN THAT HAD FILED A CASH FLOW STATEMENT. BASED ON THE CASH FLOW STATEMENT THE AO DREW A CASH AVAILABILITY POSITION WHICH ALSO WE HAV E SET OUT ABOVE. AS CAN BE SEEN FROM THE SAME, THE ASSESSEE HAD SHOWN DRAWINGS FROM THE BANK ACCOUNT AS HAVING BEEN SPENT FOR REPAIRS AND MAINTENANCE OF RS. 5,90,000/-. THE AO CALLED UPON THE ASSESSEE TO PRODUCE THE EVIDENCE TO VERIFY THE DATES ON WHICH THE REPAIRS AND MAINTENANCE EXPENSES WERE INCURRED. THE ASSESSEE MAINTAINED THAT NO DETAILS WERE AVAILABLE AS THESE WERE PERSONAL EXPENSES AND NO DEDUCTION WHATSOEVER HAD CLAIMED BY HIM WHILE CO MPUTING INCOME. IN THESE CIRCUMSTANCES THE AO WAS OF THE VIEW THAT REP AIRS AND MAINTENANCE EXPENSES OUGHT TO HAVE BEEN INCURRED PRIOR TO SEPTE MBER, 1999. ON SUCH PRESUMPTION THE AO WORKED OUT THE AVAILABILITY OF C ASH WITH THE ASSESSEE ON 24/7/99 AND 28/9/99 AND FOUND THAT THERE WAS NO CAS H AVAILABILITY WITH THE ASSESSEE FOR THE CASH DEPOSIT OF RS. 6.00 LACS MADE ON HIS BANK ACCOUNT ON 28/9/99. THE FOLLOWING ARE THE RELEVANT FINDINGS O F THE AO : ITA NO.6192/MUM/2008(A.Y. 2000-01) 7 CASH DEPOSIT RS. 40,000/- ON 24/7/1999: --------------------------------------------------- -- THE CASH POSITION IS REWORKED AS UNDER: OP. CASH BAL. RS. 36,493 ADD: APR TO JUL 1999- WITHDRAWN FROM BANK RS. 7 ,10,000 RS. 7,46,493 LESS: DRAWINGS APR.TO JUL 1999 RS. 40,000 CASH BAL AS ON 24/7/1999 RS. 7,06,493 THUS IT APPEARS THAT THE ASSESSEE HAD SUFFICIENT BA LANCE AS ON 24/7/1999 AND HENCE THE ASSESSEES CONTENTION THAT THE CASH OF RS. 40,000/- WAS DEPOSITED OUT OF CASH ON HAND IS ACCEP TED. CASH DEPOSIT RS.6,00,000/- ON 28/09/1999: OP. CASH BAL. RS. 36,493 ADD: APR TO JUL 1999- WITHDRAWN FROM BANK RS. 7 ,60,000 RS. 7,96,493 LESS: DRAWINGS APR TO SEP.1999 RS. 60,000 DEPOIST IN BANK 24/07/1999 RS. 40,000 REPAIRS & MAINTENANCE RS. 5,41,990 CASH BAL. AS ON 28/09/1999 RS.1,54,503 THE ASSESSEE HAD CASH BALANCE OF ONLY RS. 1,54,503/ - AS ON 28/09/1999 AND HENCE THE ASSESSEE CONTENTION THAT THE CASH OF RS. 600,000 WAS DEPOSITED OUT OF CASH ON HAND IS NOT ACCEPTED. THE DEPOSIT OF RS. 6,00,000/- IS THEREFORE TREATED AS INCOME FROM UNDI SCLOSED SOURCES. THE SAME IS THEREFORE, ADDED TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. 9. ON APPEAL BY THE ASSESSEE THE CIT(A) UPHELD THE FINDINGS OF THE AO THAT THE ASSESSEE PAID A SUM OF RS. 5,90,000/- AS DONATI ON TO RAES IN CONNECTION WITH ADMISSION OF HIS DAUGHTER. WITH REGARD TO THE AVAILABILITY OF FUNDS WITH THE ASSESSEE FOR MAKING PAYMENT OF DONATION, THE CI T(A) FOUND THAT ON 8/6/99 ITA NO.6192/MUM/2008(A.Y. 2000-01) 8 AND 6/7/99 THE DATES ON WHICH ENTRIES WERE FOUND IN THE SEIZED DIARY, THE ASSESSEE HAD WITHDRAWN A SUM OF RS. 1.00 LACS AND R S. 4,90,000/- RESPECTIVELY FROM HIS BANK ACCOUNT WITH BANK OF BARODA. THIS C IRCUMSTANCE ACCORDING TO CIT(A) CLEARLY SHOWED THAT THE ASSESSEE HAD PAID A SUM OF RS. 5,90,000/- AS CAPITATION FEE IN CONNECTION WITH ADMISSION OF HIS DAUGHTER IN RAES. WITH REGARD TO THE AVAILABILITY OF FUNDS TO MAKE THE AFO RESAID PAYMENT THE CIT(A) HELD AS FOLLOWS: 8. THE NEXT ISSUE IS WITH REGARD TO THE CAPITAL F EE PAID OF RS. 5,90,000/-. THE APPELLANT HAS STRONGLY DENIED HAVING PAID ANY CAPITATION FEE. HOWEVER, EVIDENCES ARE STRONGLY SUPPORTS THE DEPART MENTS CASE THAT CAPITATION FEE OF RS. 5,90,000/- IS PAID BY THE APP ELLANT. IT IS SUPPORTED BY THE DIARY SEIZED WHICH GIVES NAME OF THE APPELLA NTS DAUGHTER, ROLL NO., INSTITUTION, THE COURSE AND THE DATE OF PAYMEN T. FURTHER THIS PAYMENT IS ALSO SUPPORTED BY THE WITHDRAWALS MADE B Y THE APPELLANT FROM, HIS BANK ACCOUNTS ON THE SAME DAY. THESE EVI DENCES ARE SUFFICIENT TO PROVE THAT CAPITATION FEE OF RS.5,90,000/- WAS P AID. THE ENTRIES MADE IN THE SEIZED DIARY IS SUPPORTED BY ALL FACTS REGAR DING THE ADMISSION OF THE APPELLANTS DAUGHTER AND ALSO THE CASH WITHDRAW ALS MADE FROM THE APPELLANTS BANK ACCOUNT. I AM CONVINCED THAT CAPI TATION FEE OF RS. 5,90,000/- WAS PAID BUT IT IS PAID FROM THE BANK AC COUNT OF THE APPELLANT. IN VIEW OF THIS, I HOLD THAT THE SOURCE FOR THIS CAPITATION FEE IS PAID THROUGH THE EXPLAINED SOURCES OF INCOME OF THE APPELLANT. IN VIEW OF THIS I DIRECT THE AO TO DELETE THE ADDITION OF RS.5 ,90,000/-. 10. WITH REGARD TO THE SUM OF RS. 6.00 LACS WHICH W AS TREATED AS UNEXPLAINED BY THE AO THE CIT(A) UPHELD THE ACTIO N OF THE AO AND HELD AS FOLLOWS: 9. THE NEXT ISSUE TO BE DECIDED ABOUT THE ADDITIO N OF RS.6,00,000/- THE UNEXPLAINED CASH DEPOSITS. THE APPELLANT HAS EXP LAINED THE CASH DEPOSITS WITH THE HELP OF THE CASH WITHDRAWALS WHIC H WERE MADE FOR PAYMENT OF CAPITATION FEE. AS I HAVE ALREADY HELD THAT RS.5,00,000/- WHICH WERE WITHDRAWN FROM THE APPELLANTS BANK ACCO UNT ON 8/6/99 AND 6/7/99 WERE MADE USE FOR PAYMENT OF CAPITATION FEE THE SAME WILL NOT BE AVAILABLE TO EXPLAIN THE CASH DEPOSITS MADE SUBSEQU ENTLY. IN VIEW OF THIS I HOLD THAT RS. 6 LACS MADE AS CASH DEPOSIT IS UNE XPLAINED CASH AND I UPHOLD THE AOS ACTION OF TAXING IT AS INCOME FROM OTHER SOURCES. 11. IT HAS TO BE MENTIONED HERE THAT THE TOTAL WITH DRAWAL OF CASH BY THE ASSESSEE FROM THE BANK ACCOUNT WAS RS.13,30,000/- A ND THE TOTAL DEPOSITS OF ITA NO.6192/MUM/2008(A.Y. 2000-01) 9 CASH INTO THE VERY SAME BANK ACCOUNT WAS RS. 12,30, 400/-. THE WITHDRAWALS UPTO 28/9/99 WAS A SUM OF RS. 7,60,000/-. OUT OF THIS SUM OF RS.5,90,000/- HAD BEEN PAID TO RAES AS DONATION. THUS LEAVING A BALANCE OF ONLY RS. 2,06,493/- (OPENING CASH BALANCE RS.36,493/- + CAS H DRAWN FROM THE BANK ACCOUNT FROM APRIL TO SEPT.99 RS. 7,60,000/- (-) R S.5,90,000/- DONATION GIVEN TO RAES). THUS ACCORDING TO THE REVENUE CASH WAS N OT AVAILABLE WITH THE ASSESSEE FOR MAKING DEPOSIT IN THE BANK ACCOUNT. 12. AGGRIEVED BY THE ADDITION OF RS.6.00 LACS SUSTA INED BY THE CIT(A) THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE TH E TRIBUNAL. 13. GROUND-A RAISED BY THE ASSESSEE READS AS FOLLOW :- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S)-XXXIII, MUMBAI [(CIT(A)] ERRED ON FACTS AND IN LAW IN HOLDING THAT THE INCOME-TAX OFFICER (IT) 3(1), MUMBAI (AO) WAS JUSTIFIED IN REOPENING T HE ASSESSMENT U/S. 147 AND PASSING AN ORDER U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT ASSESSING THE INCOME OF THE APPELLANT AT RS. 12,93, 092/- AS AGAINST THE RETURNED INCOME OF RS.1,03,092/-. 2. THE APPELLANT PRAYS THAT YOUR HONOURS HOLD THAT THE REOPENING OF ASSESSMENT U/S. 147 IS BAD IN LAW AND THE CONSEQUEN TIAL ORDER PASSED BY THE AO U/S.143(3) R.W.S. 147 ASSESSING THE APPEL LANTS INCOME AT RS. 12,93,092/- MAY BE HELD TO BE BAD IN LAW. 14. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REOPENING OF THE ASSESSMENT UNDER SECTION 147 WAS NOT JUSTIFIED. IN THIS REGARD IT WAS SUBMITTED BY HIM THAT EVEN THOUGH THE RETURN FILED BY THE ASSESSEE FOR A.Y. 2000-01 WAS ACCEPTED UNDER SECTION 143(1) OF THE AC T, THE REOPENING OF SUCH ASSESSMENT CAN BE MADE ONLY IF THERE ARE REASONS T O BELIEVE THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. IN THIS REGARD O UR ATTENTION WAS DRAWN TO DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF PRASHANT S. JOSHI, 324 ITR 154. THE LD. COUNSEL FOR THE ASSESSEE FURT HER SUBMITTED THAT THE SEIZED MATERIAL IN THE CASE OF D.Y.PATIL GROUP DID NOT CONTAIN THE NAME OF THE ASESSEE NOR WAS THERE ANY EVIDENCE TO SHOW THAT THE ASSESSEE HAD PAID THE ITA NO.6192/MUM/2008(A.Y. 2000-01) 10 DONATION OF CAPITATION FEE FOR ADMISSION OF MS. NEH A BHATT. IT WAS ALSO SUBMITTED THAT THE ASSESSEES WIFE, WHEN SHE WAS EX AMINED, DID NOT SAY THAT THE ASSESSEE PAID DONATION OF CAPITATION FEE FOR AD MISSION OF HIS DAUGHTER IN RAES. IT WAS SUBMITTED THAT THE AO ON A PRESUMPTIO N THAT THE ASSESSEES WIFE HAS STATED IN HER EXAMINATION BY THE DDIT THAT THE ASSESSEE HAD BORNE ALL THE EDUCATIONAL EXPENSES OF MS. NEHA BHATT, THE AO HAS FORMED AN ERRONEOUS BELIEF THAT THE ASSESSEES INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT IN THE GARB OF REASSESSMENT PROC EEDINGS THE REVENUE CANNOT BE PERMITTED TO MAKE ROVING ENQUIRIES AND I N THIS REGARD RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS.(1) ACIT VS. STA R FERROALLOYS PVT. LTD., 90 ITD 63 (DEL)(TM) , (2) DCIT VS. NARENDRA MOHAN BAGROY , 90 ITD 90 (PAT) (TM). IT WAS FURTHER SUBMITTED THAT THE APPROVAL REQUIRED UN DER THE PROVISO TO SECTION 151(2) OF THE ACT BY THE COMMISSIONER REGARDING SAT ISFACTION OF THE REASONS RECORDED BY THE AO THAT IT IS A FIT CASE FOR ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN GIVEN WITHOUT APPLICATION OF MIND. IN THIS REGARD OUR ATTENTION WAS DRAWN TO CERTAIN OBSERVATIONS OF THE HONBLE HIGH COURT IN THE CASE OF VIJAY KUMAR M. HIRAKHANWALA HUF VS. ITO 287 ITR 494 (BOM) AT PAGE 501. 15. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. C OUNSEL FOR THE ASSESSEE. IN THIS REGARD WE HAVE ALREADY SET OUT THE CIRCUMST ANCES UNDER WHICH THE AO ISSUED NOTICE UNDER SECTION 148 OF THE ACT. WE HAV E ALSO PERUSED THE REASONS RECORDED BY THE AO, A COPY OF WHICH WAS FURNISHED B Y THE LD. D.R BEFORE US. A PERUSAL OF THE SAME SHOWS THAT AFTER RECEIPT OF THE LETTER FROM ADIT, INV.1, THANE ABOUT THE ENTRIES FOUND IN THE DIARY SEIZED I N THE COURSE OF SEARCH OF D.Y.PATIL GROUP, THE AO HAS REFERRED TO THE FACT TH AT MS. NEHA BHATT WAS SUMMONED BY THE ADIT TO PRODUCE PROOF OF PAYMENT OF CAPITATION FEE. HOWEVER, HER MOTHER SENT A REPLY THAT NEHAS EDUCAT IONAL EXPENSES WERE BORNE BY THE ASSESSEE, WHO IS FATHER OF MS. NEHA. THE AO ON THE BASIS OF THIS STATEMENT OF THE WIFE OF THE ASSESSEE AND MOTHER OF MS. NEHA PERUSED THE ITA NO.6192/MUM/2008(A.Y. 2000-01) 11 RETURN OF INCOME FILED BY THE ASSESSEE FOR A.Y 2000 -01 AND FOUND THAT IN THE CAPITAL ACCOUNT OF THE ASSESSEE FILED ALONGWITH ROI OF 2000-01 THERE WAS NO REFERENCE TO THE PAYMENT OF RS. 5,90,000/- AS CAPIT ATION FEE. IT IS IN THESE CIRCUMSTANCES THE AO RESORTED TO REOPENING OF THE A SSESSMENT. IN OUR VIEW THE FACTS AVAILABLE BEFORE THE AO WERE SUFFICIENT TO FO RM A BELIEF THAT INCOME CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE HAS ESCAPED ASSESSMENT. 16. THE AO RECORDED THE REASONS ON 28/3/2007 AND ON THE SAME DATE THE COMMISSIONER HAD GIVEN APPROVAL IN TERMS OF SECTION 151(2) PROVISO. WE HAVE PERUSED APPROVAL GIVEN BY THE COMMISSIONER AND WE N OTICE THAT THE COMMISSIONER AFTER PERUSING THE REASONS HAS OBSERVE D AS FOLLOWS: I AGREE IT IS A FIT CASE FOR ISSUE OF NOTICE UNDE R SECTION 148 IN OUR VIEW NO FAULT CAN BE FOUND WITH SUCH APPROVA L NOR CAN IT BE SAID THAT THERE WAS NON-APPLICATION OF MIND. WE, THEREFORE, REJECT THE ARGUMENTS RAISED BY THE ASSESSEE IN THIS REGARD. ON THE FACTS OF TH E PRESENT CASE WE ARE SATISFIED THAT THERE WAS ENOUGH JUSTIFICATION FOR RESORTING T O ISSUE NOTICE UNDER SECTION 148 OF THE ACT. CONSEQUENTLY GROUND. A RAISED BY T HE ASSESSEE IS DISMISSED. 17. GROUND- B RAISED BY THE ASSESSEE READS AS FOLL OWS: B- ADDITION ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT- RS.6,00,000/- 3. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW I N UPHOLDING THE ORDER OF AO MAKING AN ADDITION OF RS. 6,00,000/- ON ACCOU NT OF ALLEGED UNEXPLAINED CASH DEPOSITS. 4. THE LEARNED CIT(A) AND AO FAILED TO APPRECIATE THAT THE CASH DEPOSIT OF RS. 6,00,000/- WAS DULY EXPLAINED AND THAT NO AD DITION WAS CALLED FOR ON THAT ACCOUNT. 5. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT( A) ERRED IN NOT APPRECIATING THAT THE APPELLANT WAS A RESIDENT OF U AE AND ACCORDINGLY, ANY INCOME NOT FALLING WITHIN ANY OF THE SPECIFIC A RTICLES OF THE TREATY WAS TAXABLE IN UAE BY VIRTUE OF ARTICLE 22 OF THE INDIA UAE DTAA. HENCE, THE AMOUNT UNDER CONSIDERATION OF RS. 6,00,000 COULD NO T BE TAXED IN INDIA. 6. THE LD. CIT(A) ERRED IN HOLDING THAT THE AMOUNT OF RS. 6,00,000/- EARNED THROUGH BADLA INCOME AND WAS PROPERLY TAXED IN INDIA. ITA NO.6192/MUM/2008(A.Y. 2000-01) 12 7. THE APPELLANT PRAYS THAT THE ADDITION OF RS. 6,0 0,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH DEPOSIT MAY BE DELETED. 18. ON GROUND B THE FIRST ARGUMENT OF THE LD. COUNS EL FOR THE ASSESSEE WAS THAT THE AO REOPENED THE ASSESSMENT FOR THE PURPOSE OF BRINGING TO TAX THE DONATION GIVEN BY THE ASSESSEE IN CONNECTION WITH T HE ADMISSION OF HIS DAUGHTER IN RAES. HE POINTED OUT THAT IN THE APPEL LATE PROCEEDINGS THE CIT(A) DELETED THE THIS ADDITION AFTER NOTICING THAT THE A SSESSEE HAD SUFFICIENT SOURCE OF FUNDS IN HIS BANK ACCOUNT AND WITHDRAWALS FROM T HE SAID BANK ACCOUNT TO GIVE THE DONATION. THE LD. COUNSEL FOR THE ASSESSE E DREW OUR ATTENTION TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. JET AIRWAYS INDIA LTD., 331 ITR236 (BOM), WHEREIN IT WAS HELD T HAT WHERE AN ASSESSMENT IS REOPENED UNDER SECTION 148 OF THE ACT, THE AO IS FR EE TO ASSESS OTHER INCOMES REFERRED TO IN THE REASONS RECORDED FOR REOPENING P ROVIDED THE ITEM OF INCOME IN RESPECT OF WHICH THE ASSESSMENT WAS REOPENED IS ASS ESSED IN THE REASSESSMENT PROCEEDINGS. THE LD. COUNSEL FOR THE ASSESSEE POIN TED OUT THAT SINCE THE GROUND ON WHICH THE REASSESSMENT PROCEEDINGS WERE I NITIATED IN THE PRESENT CASE NAMELY TO TAX DONATION PAID BY THE ASSESSEE AN D SINCE THAT ADDITION HAS BEEN DELETED BY THE CIT(A), THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT OF RS. 6.00 LACS CANNOT BE SUSTAINED. 19. WE HAVE CONSIDERED THIS SUBMISSION AND FIND THA T IN THE PRESENT CASE THE AO HAD BROUGHT TO TAX THE DONATION GIVEN BY THE ASS ESSEE TO RAES. IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE RATIO LAI D DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JET AIRWAYS (SUPRA ) CANNOT BE APPLICABLE. WE ARE OF THE VIEW THAT THE DELETION OF THE ADDITIO N WHICH THE BASIS ON WHICH REASSESSMENT PROCEEDINGS WERE INITIATED BY THE CIT( A) IN THE FIRST APPELLATE PROCEEDINGS WILL NOT RENDER THE REOPENING OF ASSESS MENT BY AO INVALID. WE, THEREFORE, REJECT THIS ARGUMENT ON BEHALF OF THE AS SESSEE. ITA NO.6192/MUM/2008(A.Y. 2000-01) 13 20. WITH REGARD TO THE ADDITION OF RS. 6.00 LACS MA DE BY THE AO, WE FIND THAT THE ASSESSEE HAD DEPOSITED CASH OF RS.6.00 LACS IN HIS BANK ACCOUNT ON 28/9/2000. THE ASSESSEES EXPLANATION BEFORE THE A O WAS THAT PRIOR TO THE DEPOSIT OF RS. 6.00 LACS ON 28/9/2000 THE ASSESSEE HAD WITHDRAWN A CASH OF RS. 7,60,000/- FROM THE VERY SAME BANK ACCOUNT AND THE ASSESSEE ALSO HAD AN OPENING BALANCE OF CASH IN HAND OF RS. 36,493/-. T HUS THE ASSESSEE HAD A CASH BALANCE OF RS. 7,96,493/- AS ON 28/9/2000. TH E ASSESSEE THUS EXPLAINED THAT THE DEPOSIT OF CASH OF RS. 6.00 LACS ON 28/9/2 000 INTO THE BANK ACCOUNT AS OUT OF DRAWINGS OF CASH FROM THE VERY SAME BANK ACCOUNT. THE CIT(A) HOWEVER FOUND THAT OUT OF THE SUM OF RS. 7,96,493/ - BEING CASH AVAILABLE FROM WITHDRAWALS FROM THE BANK ACCOUNT A SUM OF RS. 5,90 ,000/- HAD ALREADY BEEN PAID IN CASH AS DONATION. THUS LEAVING ONLY A BALA NCE OF RS. 2,06,493/- CASH IN HAND AS ON 28/8/2000 AFTER THE DEPOSIT OF RS. 6, 00,000/- INTO THE BANK ACCOUNT. OUT OF THE BALANCE OF RS. 2,06,493/-, A S UM OF RS. 60,000/- HAS BEEN SHOWN AS PERSONAL DRAWINGS AND RS. 40,000/- CASH HA S BEEN DEPOSITED IN THE BANK ACCOUNTS. THUS EFFECTIVELY ONLY A SUM OF RS. 1,06,493/- IS THE CASH AVAILABLE AS PER CASH BOOK OF THE ASSESSEE AS ON 2 8/9/2000. A SUM OF RS. 6,00,000/- CASH HAS BEEN DEPOSITED IN THE BANK ACCO UNT. THUS A SUM OF RS. 4,93,507/- REMAINS UNEXPLAINED. THERE ARE WITHDRAW ALS FROM THE BANK ACCOUNT IN THE FORM OF CASH FROM 4 TH OCT.2000 TILL 11 TH MARCH, 2001 BUT THOSE CASH WITHDRAWALS CANNOT EXPLAIN THE SOURCE OF DEPOS IT MADE ON 28/9/2000. 21. THE LD. COUNSEL FOR THE ASSESSEE HOWEVER ATTEMP TED TO ARGUE THAT THE SUM OF RS. 5,90,000/- ALLEGED TO HAVE BEEN PAID AS DONATION TO RAES HAS NOT BEEN SUBSTANTIATED. THESE SUBMISSIONS IN OUR VIEW NO LONGER SURVIVES BECAUSE THE AO HAD GIVEN A FINDING THAT THE ASSESSEE PAID C APITATION FEE/DONATION TO RAES BUT DELETED THE ADDITION BECAUSE THE SOURCE OF FUNDS FOR MAKING SUCH DONATION/CAPITATION FEE CAN BE EXPLAINED FROM THE W ITHDRAWAL OF CASH OF RS. 1.00 LACS AND RS. 4,90,000/- ON 8/6/99 AND 6/7/99 R ESPECTIVELY FROM HIS BANK ACCOUNT WITH BANK OF BARODA. THUS THE CIT(A) ACCEPTED THE SOURCE OF ITA NO.6192/MUM/2008(A.Y. 2000-01) 14 FUNDS FOR MAKING THE DONATION. THE ASSESSEE HAS NO T RAISED ANY GROUND IN HIS APPEAL CHALLENGING THOSE FINDINGS. EVEN OTHERWISE, WE ARE OF THE VIEW THAT THE BASIS ON WHICH THE REVENUE AUTHORITIES CONCLUDED TH AT THE ASSESSEE PAID DONATION IN CONNECTION WITH ADMISSION OF HIS DAUGHT ER IN CASH IS ACCEPTABLE AND THE SAME HAS TO BE UPHELD. 22. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ASSESSEE WAS A NON-RESIDENT. IT WAS ALSO SUBMITTED THAT ADDITION OF RS. 6,00,000/- MADE BY THE AO HAS BEEN ASSESSED UNDER THE HEAD INCOME FRO M OTHER SOURCES. IT WAS SUBMITTED THAT THE ASSESSEE BEING A RESIDENT OF UAE ( THIS FACT IS NOT IN DISPUTE BEFORE US) THE PROVISIONS OF THE INDO-UAE DTAA WILL BE APPLICABLE. IT WAS SUBMITTED THAT UNDER ARTICLE 12(1) OF THE DTAA BETW EEN INDIA AND UAE, SUBJECT TO THE PROVISIONS OF PARAGRAPH 2, ITEMS OF INCOME O F A RESIDENT OF A CONTRACTING STATE, WHEREVER ARISING, WHICH ARE NOT EXPRESSLY DE ALT WITH IN THE FOREGOING ARTICLES OF THIS AGREEMENT, SHALL BE TAXABLE ONLY I N THAT CONTRACTING STATE. ARTICLE 12(2) OF THE SAME DTAA, PROVIDES THAT THE P ROVISIONS OF PARAGRAPH 1 (ARTICLE 12(1) OF THE DTAA) SHALL NOT APPLY TO INCO ME, OTHER THAN INCOME FROM IMMOVABLE PROPERTY AS DEFINED IN PARAGRAPH 2 OF ART ICLES 6, IF THE RECIPIENT OF SUCH INCOME, BEING A RESIDENT OF CONTRACTING STATE, CARRIES ON BUSINESS IN THE OTHER CONTRACTING STATE THROUGH A PERMANENT ESTABLI SHMENT SITUATED THEREIN, OR PERFORMS IN OTHER STATE INDEPENDENT PERSONAL SER VICES FROM A FIXED BASE SITUATED THEREIN AND THE RIGHT OR PROPERTY IN RESPE CT OF WHICH THE INCOME IS PAID IS EFFECTIVELY CONNECTED WITH SUCH PERMANENT ESTABLISHMENT OR FIXED BASE. IN SUCH CASE THE PROVISIONS OF ARTICLE 7 OR ARTICLE 14, AS THE CASE MAY BE, SHALL APPLY. THUS IT WAS ARGUED THAT THE INCOME IN QUEST ION WHICH WAS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES CANNOT B E TAXED IN INDIA AS THE ASSESSEE IS RESIDENT OF UAE. 23. ON THIS ARGUMENT THE CIT(A) HAS HELD AS FOLLOWS :- 11. I HAVE CONSIDERED THE APPELLANTS SUBMISSIONS. IT IS SEEN THAT THE CASH DEPOSIT IS MADE IN THE BANK ACCOUNT MAINTAINED IN INDIA AND THE ITA NO.6192/MUM/2008(A.Y. 2000-01) 15 CASH DEPOSIT IS ALSO MADE IN INDIA. THE APPELLANT HAS SOURCES OF INCOME SUCH AS BADLA INCOME IN INDIA AND IT IS OFFERED TO TAXATION. IT IS POSSIBLE THE APPELLANT COULD HAVE EARNED UNACCOUNTED INCOME FROM SUCH SOURCES. THIS IS THE ONLY INFERENCE WHICH CAN BE D RAWN SINCE THE APPELLANT COULD NOT PROVE THAT HE HAS UNEXPLAINED I NCOME EARNED OUTSIDE INDIA. IN VIEW OF THIS INFERENCE I HOLD TH AT THE EXTRA INCOME IS EARNED THROUGH BADLA INCOME AND I HOLD THAT THE INC OME FROM OTHER SOURCES OF RS. 6 LACS IS TAXED PROPERLY ACCORDING T O THE PROVISIONS OF THE INCOME TAX ACT AND THE TREATY. 24. IN OUR VIEW THE CONCLUSIONS OF THE CIT(A) HAVE TO BE SUSTAINED BUT FOR DIFFERENT REASONS. THE DEPOSIT OF CASH INTO BANK A CCOUNT WAS MADE BY THE ASSESSEE IN A BANK ACCOUNT IN INDIA. THE BURDEN OF SHOWING THAT THIS INCOME WAS NOT EARNED IN INDIA WAS ON THE ASSESSEE BECAUSE FACTS WERE WITHIN HIS EXCLUSIVE KNOWLEDGE. THE ASSESSEE HAS NOT LET IN A NY EVIDENCE TO SHOW THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS EARNED OUTSI DE INDIA SO AS TO BE OUT OF THE PURVIEW OF TAXATION IN INDIA. IT IS ON THIS BA SIS THAT THE ABOVE ARGUMENT OF THE ASSESSEE OUGHT TO HAVE BEEN DISMISSED. WE ARE OF THE VIEW THAT THE ASSESSEE HAVING FAILED TO EXPLAIN THE SOURCE OF DEP OSIT OF MONEY IN A BANK ACCOUNT IN INDIA AS OUT OF INCOME EARNED OUTSIDE IN DIA CANNOT BE HEARD THAT THE UNEXPLAINED INCOME WAS EARNED OUTSIDE INDIA AND THEREFORE NOT EXIGIBLE TO TAX IN INDIA. WE THEREFORE UPHOLD THE ORDER OF CIT (A) FOR THE REASONS GIVEN ABOVE. THUS A SUM OF RS.4,93,507/- HAS TO BE ADDED AS UNEXPLAINED INCOME IN THE HANDS OF THE ASSESSEE. 25. GROUND C RAISED BY THE ASSESSEE READS AS FOLLO WS: C- LEVY OF INTEREST U/S.234B-RS.2,92,979/- 8. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN NOT DECIDING THE GROUND RELATING TO LEVY OF INTEREST U/S. 234B AMOUN TING TO RS.2,92,979/- 9. THE LEARNED CIT(A) AND AO FAILED TO APPRECIATE T HAT THE APPELLANT IS A NON-RESIDENT AND WAS NOT LIABLE TO PAY ADVANCE TAX. HENCE, THE QUESTION OF LEVYING INTEREST U/S. 234B ID NOT ARISE. 10. THE APPELLANT PRAYS THAT YOUR HONOUR HOLD THAT THE APPELLANT WAS NOT LIABLE TO INTEREST U/S. 234 B AND THE INTEREST LEVIED BY THE AO U/S. 234B AMOUNTING TO RS.2,92,979/- MAY BE DELETED. ITA NO.6192/MUM/2008(A.Y. 2000-01) 16 26. THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESS EE WAS THAT THE ASSESSEE WAS NON-RESIDENT. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CARE OF DIRECT OR OF INCOME TAX (IT) VS. KRUPP UDHE GMBH (2010) 38 DTR (BOM) 251, WHEREIN IT WAS HELD BY THE BOMBAY HIGH COURT THAT WHERE RECIPIENT OR NON-RESID ENTS THE PAYMENT ARE SUBJECT TO TDS UNDER THE ACT AND, THEREFORE, NO INT EREST UNDER SECTION 234B CAN BE CHARGED. WE ARE OF THE VIEW THAT IN THE PRE SENT CASE THE ADDITION HAS BEEN MADE ON ACCOUNT OF UNEXPLAINED MONEY IN BANK A CCOUNT AND HAS BEEN TREATED AS INCOME FROM OTHER SOURCES UNDER THE ACT. IT IS NOT A CASE WHERE THE ASSESSEE AS A NON RESIDENT RECEIVED PAYMENT, SO AS TO ATTRACT THE PROVISIONS OF SECTION 195 OF THE ACT. THEREFORE, THE AFORESAID D ECISION WOULD NOT BE OF ANY ASSISTANCE TO THE PLEA OF THE ASSESSEE. INTEREST U NDER SECTION 234B BEING MANDATORY HAS TO BE LEVIED. 27. GROUND-D RAISED BY THE ASSESSEE READS AS FOLLO WS: D- LEVY OF INTEREST U/S. 234D RS. 5,767/- 11. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING THE GROUND REGARDING LEVY OF INTEREST U/S. 234D AMOUNTING TO R S.5,767/-. 12. THE LEARNED CIT(A) AND AO FAILED TO APPRECIATE THAT NO INTEREST U/S. 234D COULD BE LEVIED IN FACTS AND CIRCUMSTANCES OF THE CASE. 13. THE APPELLANT PRAYS THAT THE INTEREST LEVIED BY THE AO U/S. 234D AMOUNTING TO RS. 5,767/- MAY BE DELETED. 28. AS FAR AS GROUND D IS CONCERNED THE LEVY OF IN TEREST UNDER SECTION 234D OF THE ACT CAN BE MADE ONLY FROM 1/6/2003 WHEN THOS E PROVISIONS WERE INTRODUCED. PRIOR TO THE SAID PERIOD INTEREST UNDE R SECTION 234D CANNOT BE CHARGED AS LAID DOWN BY THE HONBLE BOMBAY HIGH COU RT IN THE CASE OF BAJAJ ITA NO.6192/MUM/2008(A.Y. 2000-01) 17 HINDUSTAN LTD., ITA 198 OF 2009 ORDER DATED 15/4/2 009. THE AO IS THEREFORE, DIRECTED TO CHARGE INTEREST UNDER SECTION 234D FOR THE PERIOD 1/6/2003 AND THEREAFTER. 29. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 16TH DAY OF SEPT., 2011. SD/- SD/- (J.SUDHAKAR REDDY ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 16 TH SEPT.2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RL BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.6192/MUM/2008(A.Y. 2000-01) 18 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 11-12/8/11 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 16/8/11 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER