ANTWERP DIAMOND BANK NV, MUMBAI V. DDIT(IT)1(1), MUMBAI

ITA 905/MUM/2010

• Counselvise Citation: 90519914 RSA 2010
• Duration Of Justice: 3 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-03-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 04-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDER KUMAR
• Assessee Lawyers: K K VED
• Section: 143(3); 260A; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH L, MUMBAI , ! '# $## #% , & ! ' BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : 904 / / 2010, 2004-05 ITA NO. : 904/MUM/2010 (ASSESSMENT YEAR: 2004-05) ------------------------------------------ ANTWERP DIAMOND BANK NV, 510, 5 TH FLOOR, TRADE CENTRE, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI -400 051 PAN: AADCA 2713 J VS DEPUTY DIRECTOR OF INCOME- TAX (INTERNATIONAL TAXATION) -1(1), MUMBAI (APPELLANT) (RESPONDENT) . : 905 / / 2010, 2005-06 ITA NO. : 905/MUM/2010 (ASSESSMENT YEAR: 2005-06) ------------------------------------------ ANTWERP DIAMOND BANK NV, 2 ND FLOOR, ENGINEERING CENTRE, 9 MATHEW ROAD, OPERA HOUSE, MUMBAI -400 004 PAN: AADCA 2713 J VS DEPUTY DIRECTOR OF INCOME- TAX (INTERNATIONAL TAXATION) -1(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : MR. K.K. VED RESPONDENT BY : MR. NARENDER KUMAR /DATE OF HEARING : 14-08-2013 / DATE OF PRONOUNCEMENT : 28-08-2013 + O R D E R $## #% , : PER VIVEK VARMA, JM: THE TWO APPEALS ARISE OUT OF THE ORDERS OF THE CIT(A) 10 , MUMBAI, DATED 22.12.2009. THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: ANTWERP DIAMO ND BANK NV ITAS 904 & 905/MUM/2010 2 THE APPELLANT OBJECTS TO THE ORDER UNDER SECTION 15 4 OF THE INCOME TAX ACT, 1961 (THE ACT) DATED 22 DECEMBER 2009 PASSED BY T HE COMMISSIONER OF INCOME-TAX (APPEALS) 10 [LEARNED CIT(A)] FOR THE AFORESAID ASSESSMENT YEAR ON THE FOLLOWING AMONG OTHER GROUNDS: 1. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING TH AT AS PER SECTION 154(1 A) OF THE ACT, WHERE ANY MATTER HAS BEEN CONSIDERED AN D DECIDED IN ANY PROCEEDING BY WAY OF AN APPEAL, THE LEARNED DDIT CA NNOT PASS AN ORDER UNDER SECTION 154 OF THE ACT IN RESPECT OF THE SAID ISSUE. 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING TH AT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED UNDER SECT ION 143(3) OF THE ACT AND THEREFORE NO ORDER CAN BE PASSED UNDER SECTION 154 OF THE ACT. 3. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING IN THE CORRECT PERSPECTIVE THE SUBMISSIONS MADE BY THE APPELLANT. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DELE TION IN RESPECT OF DEDUCTION OF INTEREST OF RS. 3,659,143 IN THE ORDER PASSED UNDER SECTION 154 OF THE ACT. 5. EACH ONE OF THE ABOVE GROUNDS OF APPEAL IS WITH OUT PREJUDICE TO THE OTHER. 6. THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER 2. THE ISSUE REALLY RELATES TO A PAYMENT OF INTEREST ON SUBORDINATED DEBT AND TERM BORROWINGS TO ITS HO, WHICH AMOUNTED TO R S. 1,22,80,824/-, WHICH INCLUDED RS. 36,59,143/-. ACCORDING TO TH E AR, THE ASSESSEE HAD ALREADY DEDUCTED TAX AT SOURCE ON R S. 86,21,681/- IN ASSESSMENT YEAR 2003-04 AND SINCE RS. 36,59,143/- PERT AINED TO AY 2004-05, THE TAX AT SOURCE WAS DEDUCTED. 3. IN THE RECTIFICATION PROCEEDINGS INITIATED BY THE AO, CO NSEQUENT TO ASSESSMENT FRAMED U/S 143(3), IN THE CURRENT YEAR AND IN THE SUBSEQUENT YEAR, DISALLOWED THE ENTIRE AMOUNT OF RS. 1,22,80 ,824/- ALONG WITH A FURTHER DISALLOWANCE OF RS. 36,59,143/-, AGGREGA TING TO A DISALLOWANCE OF RS. 1,59,39,967/-. 4. BEFORE US THE AR POINTED OUT THAT IN ASSESSMENT YE AR 2003-04 & 2004-05 THE ITAT IN ITS OWN CASE ALLOWED THE ENTIRE AMO UNT OF RS. 1,22,80,824/- IN ASSESSMENT YEAR 2003-04 ALONG WITH WHICH THE DEPARTMENT IS IN APPEAL U/S 260A BEFORE HONBLE BOMBAY H IGH COURT AND ALSO THAT IT HAS RESULTED IN DOUBLE ADDITION. ANTWERP DIAMO ND BANK NV ITAS 904 & 905/MUM/2010 3 5. THE AR FURTHER PRAYED THAT THE FACT IS, THAT RS. 36,59 ,143/- PERTAINED TO THE CURRENT YEAR, BUT SINCE THE ITAT HAS DECIDED THE ISSUE IN THE PRECEDING YEAR, THE INSTANT APPEALS BECOME INFRUCTUOUS. 6. THE DR RELIED ON THE ORDER OF THE REVENUE AUTHORITIES. 7. AFTER GOING THROUGH THE FACTS AND TAKING INTO CONSIDER ATION THE ORDER OF THE COORDINATE BENCH IN THE PRECEDING YEAR, TH E ISSUE HAS BECOME INFRUCTUOUS IN THE INSTANT YEARS THEREBY THE ORD ER OF THE AO IS SUSTAINED. HOWEVER, SINCE THE ISSUE IS NOW PENDING BEFORE THE HONBLE BOMBAY HIGH COURT, AUTHORITIES AND THE ASSESSEE ARE FREE TO TAKE APPROPRIATE LEGAL REMEDY, CONSEQUENT TO THE ORDER OF THE PENDING APPEAL U/S 260A BEFORE THE HONBLE BOMBAY HIGH COURT. 8. THE APPEALS IN ASSESSMENT YEARS 2004-05 & 2005-06 ARE THUS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2013. SD/- SD/- ( ) ( $## #% ) ! ! (RAJENDRA SINGH) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 28 TH AUGUST, 2013 / COPY TO:- 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT(A)-10, MUMBAI. 4) ' '# /DIT((IT), RANGE -1, MUMBAI 5) $%& ' , ' ' , ()* / THE D.R. L BENCH, MUMBAI. 6) &+ , ANTWERP DIAMO ND BANK NV ITAS 904 & 905/MUM/2010 4 COPY TO GUARD FILE. '-./ / BY ORDER / / TRUE COPY / / [ 0 / 1 )2 ' ' , ()* DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *451 . . * CHAVAN, SR. PS