ITO 8(3)(4), MUMBAI V. VISHNU MALL MANAGEMENT P.LTD, MUMBAI

ITA 6628/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3678 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 31-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R KIRTANE
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) AND SHRI SANDEEP GOS AIN (JM) ITA NO. 6628/MUM/2014 ASSESSMENT YEAR: 2011-12 THE ITO - 8(3) - 4, ROOM NO. 202, 2 ND FLOOR, AAYAJAR BHAVAN, MUMBAI- 400020. VS. M/S. VISHNU MALL MANAGEMENT P. LTD., KNOWLEDGE HOUSE, SHYAM NAGAR, OFF. JOGESHWARI LINK ROAD, JOGESHWARI (E), MUMBAI- 400060. PAN : AACCV5463D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. S.R.KIRTANE RESPONDENT BY : SHRI. NISHIT GANDHI DATE OF HEARING: 26/05/2016 DATE OF PRONOUNCEMENT: 26/05/2016 O R D E R PER JASON P. BOAZ, AM THE AFORESAID APPEAL HAS BEEN FILED BY THE REV ENUE AGAINST ORDER DATED 06/08/2014 PASSED BY THE CIT(A)-18, MUMBAI IN RESP ECT OF THE ORDER OF ASSESSMENT PASSED U/S 143(3) FOR THE ASSESSMENT YEA R 2011-12, ON THE FOLLOWING GROUNDS:- I) ' WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN COMPUTING AND CHANGING THE RATE OF INTEREST TO BE DISALLOWED WITHOUT ACCORDING ANY OPP ORTUNITY TO THE ASSESSING OFFICER TO OFFER COMMENTS IN THIS REGARD? ,. 2 ITA NO. 6628/MUM/2014 ASSESSMENT YEAR: 2011-12 II) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE DISALL OWANCE OF INTEREST PAID FROM RS. 1,88,41,154/- TO RS. 1,64,49,184/- WH EN ANY SUCH GROUND WAS NOT SPECIFICALLY RAISED BY THE ASSESSEE? THE CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD NOT CLAIMED TH AT EXCESS DISALLOWANCE OF INTEREST WAS MADE IN THE ASSESSMENT ORDER?. III) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT D ISALLOWANCE OF INTEREST EXPENSES ON ACCOUNT OF INTEREST-FREE LOAN ADVANCED TO M/S. ANCHOR MALL MANAGEMENT PVT. LTD. SHOULD BE CALCULAT ED FOR THE PERIOD FOR WHICH THE LOAN WAS UTILIZED I.E. FOR FIVE MONTH S IGNORING THE FACT THAT THE MONEY WAS ALSO USED BY THE OTHER GROUP CON CERNS OF THE ASSESSEE-COMPANY FREE OF INTEREST FOR THE REMAININ G YEAR AND HENCE THE RELIEF OF RS. 11,97,945/- GRANTED IN THIS REGAR D IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE LAW? IV)'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT(A) HAS COMMITTED AN ERROR IN HOLDI NG THAT INTEREST OF RS. 2,64,365/- IS RELATABLE TO INTEREST ON CURRENT ACCOUNT WITHOUT NOTICING THE FACT THAT THE FUND WAS PARKED IN THE C URRENT ACCOUNT ONLY ON SHORT TERM BASIS AND ITS PURPOSE WAS TO RE-ROUTE THESE FUNDS ON INTEREST-FREE BASIS TO GROUP CONCERNS? V) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A ) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE A.O BE RESTORE D. VI)THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3 ITA NO. 6628/MUM/2014 ASSESSMENT YEAR: 2011-12 2. AT THE OUTSET, IT IS BROUGHT TO THE NOTICE OF THE BENCH THAT THE DISPUTED ISSUE IS ONLY RS. 23,91,970/- AND THE TAX EFFECT ON THIS AMOUNT IS BELOW THE MONETARY LIMIT OF RS. 10 LAKHS. AS PER THE LATEST C BDT CIRCULAR NO. 21 OF 2015, DATED 10 TH DECEMBER, 2015, NEW GUIDELINES OF MONETARY LIMIT F OR FILING OF APPEALS BY THE DEPARTMENT HAS BEEN ISSUED, WHEREBY THE TAX EFFECT FOR FILING OF APPEAL BEFORE THE ITAT HAS BEEN PRESCRIBED AT RS. 1 0 LAKHS. IN THE SAID CIRCULAR, IT HAS BEEN SPECIFICALLY CLARIFIED THAT T HE SAID INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS. ACCORDI NGLY, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH MAY, 2016 SD/- SD/ - (SANDEEP GOSAIN) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 26/05/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) PRAMILA , / ITAT, MUMBAI