AATUR HOLDING P.LTD, MUMBAI V. DCIT CC 31, MUMBAI

ITA 947/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9221 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 1992-1993
• Appeal Filed On: 11-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL LD
• Assessee Lawyers: DHARMESH SHAH LD
• Keywords: Depreciation; Corroborative evidences
• Section: 143(3); 234B; 14A; 32; 147; 144

Judgement Text

ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . , , BEFORE SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.947, 1092 &1093/MUM/2015 ( / ASSESSMENT YEARS: 1991-92, 1992-93 &1993-94) AATUR HOLDING S P RIVATE LIMITED 32, MADHULI,3 RD FLOOR, DR. A.B.ROAD WORLI MUMBAI-400 018 / VS. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 4(3) 4 TH FLOOR, AAYKAR BHAVAN M.K.ROAD MUMBAI- 400 020 '# ./ ./ PAN/GIR NO.AABCA-1472-C ( #% /APPELLANT ) : ( &#% / RESPONDENT ) & ./I.T.A. NO.1268/MUM/2015 ( / ASSESSMENT YEAR: 1991-92) DEPU TY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 4(3) 4 TH FLOOR, AAYKAR BHAVAN M.K.ROAD MUMBAI- 400 020 / VS. AATUR HOLDING P RIVATE LIMITED 32, MADHULI,3 RD FLOOR, DR. A.B.ROAD WORLI MUMBAI-400 018 '# ./ ./ PAN/GIR NO.AABCA-1472-C ( #% /APPELLANT ) : ( &#% / RESPONDENT ) REVENUE BY : DR.P.DANIEL, LD. DR ASSESSEE BY : DHARMESH SHAH, LD. AR / DATE OF HEARING : 19/09/2017 / DATE OF PRONOUNCEMENT : 04/10/2017 2 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 / O R D E R PER BENCH 1. THE CAPTIONED APPEALS BY ASSESSEE AS WELL AS REV ENUE FOR DIFFERENT ASSESSMENT YEARS [AY] ASSAIL SEPARATE ORDERS OF FIR ST APPELLATE AUTHORITY. SINCE COMMON ISSUES ARE INVOLVED, WE DISPOSE-OFF TH E SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. AS PER ORDER SHEET ENTRY, ALL THESE APPEALS HAVE BEEN CONSOLIDATED BY THE ORDER OF HONBLE VICE PRESIDENT DATED 12/07/2017. 2.1 FIRST WE TAKE UP ASSESSEES APPEAL ITA NO. 1092 /MUM/2015 FOR AY 1991-92 WHICH CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-52, MUMBAI [CIT(A)] APPEAL NO. CIT(A)-52/DC/AC- CC4(3)/119/2009-10 DATED 22/12/2014 . THE ASSESSMENT WAS FRAMED BY LD. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-31, M UMBAI [AO] U/S 144 ON 26/12/2006. THE ASSESSEE IS IN SECOND ROUND OF A PPEAL BEFORE US. THE MATTER, IN THE FIRST ROUND OF APPEAL BEFORE THIS TR IBUNAL VIDE ITA NO. 4147/M/1995 DATED 25/10/1995, WAS RESTORED BACK TO THE FILE OF LD. AO FOR DE-NOVO ADJUDICATION. 2.2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE DISALLOWANCE OF DEPRECIATION AMOUNTI NG TO RS.1,71,339/- IN RESPECT OF PREMISES AT WORLI AND BANDRA HELD BY THE APPELLANT. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE DISALLOWANCE OF REPAIRS AND MAINTENA NCE EXPENSES AMOUNTING TO RS.2,67,473/- IN RESPECT OF PREMISES AT BANDRA, MUM BAI HELD BY THE APPELLANT. 3 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE LEVY OF INTEREST U/S 234A, 234B AND 234C OF THE ACT. 4. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT ADJUDICATING THAT THE INCOME ASSESSED IN THE HA ND OF THE APPELLANT WERE SUBJECTED TO THE PROVISIONS OF TDS AND HENCE ON THE SAID AMOUNT OF TAX NO INTEREST CAN BE COMPUTED U/S. 234A, 234B AND 234C O F THE ACT. 2.3 FACTS QUA THE DISPUTE ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE WAS ASSESSED U/S 144 FOR IMPUGNED AY ON 26/12/2006 AT RS.46,06,202/-. NO RETURN WAS FILED BY THE ASSESSEE FOR IMPUGNED AY. AS NOTED BY LD. AO, THE ASSESSEE BELONGED TO HARSHAD MEHTA GROUP AND IS A NOTIFIED PERSON UNDER SPECIAL COURT [TORTS] ACT, 1992 . THE SPECIAL COURT HAD DIRECTED THE AUDIT OF THE ACCOUNTS OF THE ASSES SEE FOR CERTAIN SPECIFIED PERIOD. THE BOOKS OF ACCOUNTS WERE NOT WRITTEN IN R EGULAR COURSE OF BUSINESS BY THE ASSESSEE. DURING ASSESSMENT PROCEED INGS, THE COMPUTER PRINT-OUT OF BOOKS OF ACCOUNT WAS PRODUCED ALONG WI TH AUDITED BALANCE SHEET, PROFIT & LOSS ACCOUNT AND AUDIT REPORT. THE NET PROFIT SHOWN AS PER AUDITED PROFIT & LOSS ACCOUNT WAS RS.88,054/-. 2.4 THE ISSUES WHICH ARE THE SUBJECT MATTER OF THIS APPEAL ARE DEPRECIATION ALLOWANCE AND REPAIR EXPENSES WITH RESPECT TO CERTAIN PROPERTY SITUATED AT MADHULI, WORLI, MUMBAI . IT WAS NOTED THAT THE ASSESSEE CLAIMED DEPRECIATION & REPAIR/MAINTENANCE EXPENSES OF RS.1.71 LACS & RS.2.67 LACS RESPECTIVELY AGAINST FLAT NO. 34A, MADHULI, WORLI, MUMBAI WHICH WAS PURCHASED DURING THE YEAR. IT WAS NOTED THAT THE FL AT COULD ONLY BE USED FOR RESIDENTIAL PURPOSES WHEREAS THE ASSESSEE CLAIMED D EPRECIATION AGAINST THE SAME ON THE PREMISES THAT THE SAME WAS BEING US ED FOR BUSINESS 4 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 PURPOSES. NO EVIDENCE COULD BE PRODUCED BY THE ASSE SSEE TO SUPPORT THIS CONTENTION WHICH LED TO IMPUGNED DISALLOWANCES. FIN ALLY, THE INCOME OF THE ASSESSEE WAS COMPUTED AT RS.46.06 LACS. 3. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITHO UT ANY SUCCESS BEFORE LD.CIT(A) VIDE IMPUGNED ORDER DATED 22/12/20 04. QUA DEPRECIATION CLAIM, THE ASSESSEE PLACED RELIANCE ON TRIBUNALS D ECISION FOR AY 1995-96, 1996-97 & 1997-98 IN ITA NO. 4065-66-67/MUM/2002 DA TED 31/10/2005. HOWEVER, LD. CIT(A) FOUND THE SAME FACTUALLY DIFFER ENT SINCE IN THOSE YEARS, IT WAS NOTED BY THE TRIBUNAL THAT THE SAID P REMISES WAS BEING USED FOR PREPARATION OF VARIOUS REPRESENTATIONS TO GOVER NMENT AUTHORITIES AND COMPILING DETAILS REQUIRED BY THE LEGAL CONSULTANTS AND GOVERNMENT AGENCIES. SINCE, THESE FINDINGS WERE MISSING IN THE IMPUGNED AY AND THE ASSESSEE COULD NOT PROVE THE FACTUM OF CARRYING OF ANY BUSINESS ACTIVITY AT THE SAID PREMISES WITH DOCUMENTARY EVIDENCES, LD. C IT(A) CONFIRMED THE STAND OF LD. AO. THE ASSESSEE ALSO CONTESTED IMPOSI TION OF INTEREST U/S 234A/B/C ON THE PREMISES THAT IT WAS NOTIFIED ENTIT Y AND THEREFORE, THE SAME COULD NOT BE APPLIED TO THE ASSESSEE. HOWEVER, FINDING THAT INTEREST PROVISIONS WERE MANDATORY IN NATURE IN VIEW THE JUD GMENT OF APEX COURT RENDERED IN CIT VS. ANJUM H.GHASWALA, LD. CIT(A) DISMISSED THE SAME. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. THE LD. COUNSEL FOR ASSESSEE [AR], REITERATING T HE CONTENTIONS DREW OUR ATTENTION TO THE DOCUMENTS PLACED IN THE PAPER BOOK AND CONTENDED THAT THE ASSESSEE COMPANY CARRIED OUT BOARD MEETING AT THE SAID PREMISES 5 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 AND THEREFORE, DEPRECIATION AND REPAIR EXPENSES AGA INST THE SAME WERE ADMISSIBLE. PER CONTRA, LD. DR CONTENDED THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS CLAIM IN THIS REGARD IN ANY MANNER AND THE PREMISES IN DISPUTE WAS ALWAYS BEING USED FOR RESIDENTIAL PURPO SES ONLY BY THE DIRECTORS OF THE ASSESSEE COMPANY. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. FIRST OF ALL, IT IS NOTED THAT THE DEPRECIA TION CLAIMED BY THE ASSESSEE AS PER INCOME TAX ACT AGAINST THE SAID PREMISES WAS RS.2,15,156/- WHEREAS LD. AO HAS TAKEN THE SAME TO BE RS.1,71,339 /-. HOWEVER, AT THE MOMENT, WE ARE NOT CONCERNED WITH THE SAME. 6. PROCEEDING FURTHER, AFTER GOING THROUGH THE DOCU MENTARY EVIDENCES ON RECORD, WE FIND THAT THE ASSESSEE HAS PLACED MINUTE S OF BOARD MEETING HELD AT THE IMPUGNED PREMISES ON 25/09/1992 AND VAR IOUS DATES THEREAFTER. HOWEVER, WE HARDLY FIND THE SAME TO BE OF ANY SIGNI FICANT EVIDENTIARY VALUE FIRSTLY BECAUSE THEY PERTAINED TO FINANCIAL YEAR 19 92-93 WHEREAS WE ARE DEALING WITH AY 1991-92. SECONDLY, THERE WAS NO RES TRICTION ON BOARD MEETING TO BE HELD ONLY AT THE BUSINESS PREMISES OF THE ASSESSEE. THE ASSESSEE PURCHASED THE PROPERTY DURING IMPUGNED AY AND THIS WAS THE FIRST YEAR OF CLAIMING DEPRECIATION & OTHER EXPENSE S AGAINST THE SAME. THE ASSESSEE, ALTHOUGH CLAIMED DEPRECIATION AND REPAIR CHARGES AGAINST THE SAME BUT COULD NOT PROVE THE FACTUM OF USAGE THEREOF FOR BUSINESS PURPOSES IN ANY MANNER AND THEREFORE, FAILED TO DIS CHARGE THE ONUS OF SUBSTANTIATING THE SAME. NO COGENT EVIDENCES COULD BE FURNISHED BY 6 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 ASSESSEE TO PROVE THE FACT THAT THE SAID PREMISE WA S USED FOR THE BUSINESS PURPOSES OF THE ASSESSEE AND THEREFORE FAILED TO FU LFILL THE PRIMARY CONDITIONS OF SECTION 32 & SECTION 37. THE LD. CIT( A) HAS RIGHTLY DISTINGUISHED THE FACTS OF AY 1995-96 TO 1997-98 S INCE IN THOSE YEARS, IT WAS FOUND THAT THE SAID PREMISES WAS BEING USED FOR THE PURPOSE OF COMPILING VARIOUS REPRESENTATIONS TO BE FILED BEFOR E VARIOUS GOVERNMENT AGENCIES. THEREFORE, FINDING NO SUBSTANCE IN ASSESS EES GROUND NUMBERS 1 & 2, WE DISMISS THE SAME. 7. QUA CHARGING OF INTEREST U/S 234A/B/C, THE LD. AR FAIRL Y CONCEDED THAT THE ISSUE STOOD COVERED SQUARELY AGAINST THE ASSESS EE BY THE ORDER OF THIS TRIBUNAL FOR AY 2007-08 TO 2009-10. HOWEVER, IN TER MS OF THE SAID ORDER, THE CREDIT OF TAX DEDUCTIBLE AT SOURCE WAS AVAILABLE TO THE ASSESSEE BEFORE COMPUTING THE INTEREST COMPONENT U/S 234. WE HAVE P ERUSED TRIBUNALS ORDER IN ASSESSEES OWN CASE IN ITA NOS. 846 & OTHE RS/MUM/2010 DATED 23/09/2015 AND FIND THAT ISSUE HAS ALREADY BEEN DEC IDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE FOLLOWING MANNER:- 6.LAST GROUND OF APPEAL FOR ALL THE THREE ASSESSMEN T YEARS PERTAINS TO LEVY OF INTEREST U/S.234A, 234B AND 234C OF THE ACT. BEFORE US, THE REPRESENTATIVES OF BOTH THE SIDES AGREED THAT IDENTICAL ISSUE WAS DECIDED IN THE CASE S OF TOPAZ HOLDINGS PVT.LTD.(ITA/2146/MUM/2013,AY.2001-02 DTD.18.06.201 4) AND EMINENT HOLDINGS PVT.LTD.(ITA/2139/MUM/2013,AY.2002-03,DATED 18.06.2 014), THAT THE TRIBUNAL HAD UPHELD THE LEVY OF INTEREST IN PRINCIPAL, THAT IT H AD SET ASIDE THE ISSUE FOR CALCULATING THE INTEREST TO THE FILE OF THE AO WITH DIRECTION THAT THE TAX DEDUCTED AS SOURCE SHOULD BE REDUCED WHILE CALCULATING THE INTEREST. WE FIND THA T THE ISSUE WAS DISCUSSED IN THE CASE OF EMINENT HOLDINGS PVT.LTD (SUPRA) AS UNDER: 3.NEXT GROUND OF APPEAL IS ABOUT LEVY OF INTEREST U/S. 234 OF THE ACT. BEFORE US, AR STATED THAT THE ASSESSEE WAS A NOTIFIED ENTITY, THAT THE PROVISIONS OF S.234A, 234B AND 234C OF THE ACT WERE DEEMED TO HAVE COMPLI ED WITH, THAT THE ASSETS WERE ALREADY IN ATTACHMENT OF THE CUSTODIAN APPOINT ED UNDER THE PROVISIONS OF 7 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 THE SPECIAL COURTS ACT, THAT THE TRIBUNAL IN THE CA SE OF THE APPELLANT AND SEVERAL OTHER ENTITIES HAD HELD THE VIEW IN FAVOUR OF THE A PPELLANT, THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIVINE HOLDINGS PV T. LTD. AND CASCADE HOLDINGS PVT. LTD. HAD HELD THAT THE PROVISIONS OF SECTIONS 234A,234B AND 234C OF THE ACT WERE MANDATORY AND WERE APPLICABLE TO TH E NOTIFIED ENTITIES ALSO, THAT THE ASSESSEE WAS IN THE PROCESS OF FILING AN APPEAL AGAINST THE SAID ORDER BEFORE THE HONBLE SUPREME COURT, THAT THE INCOME EARNED I N THE YEAR UNDER CONSIDERATION WAS SUBJECTED TO PROVISIONS OF TDS, T HAT THE CHARGEABILITY OF THE SECTION 234A, 234B AND 234C OF THE ACT SHOULD BE AF TER CONSIDERING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED. THE APPELLANT RELIES IN THIS REGARD ON THE FOLLOWING DECISIONS. HE RELIED UPON T HE CASES OF MOTOROLA INC. V. DCIT [95 ITD 269 (DEL.(SB)], SEDCO FORES DRILLING C O. LTD. [264 ITR 320],NGC NETWORK ASIA LLC [313 ITR 187] SUMMIT BHATACHARYA [ 300 ITR (AT) 347 (BOM)(SB)], VIJAL GOPAL JINDAL [ITA NO. 4333/DEL/20 09] & EMILLO RUIZ BERDEJO [320 ITR 190 (BOM)].DR RELIED UPON THE CASES OF DEV INE HOLDINGS PVT. LTD. 3.1.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IN THE CASE OF DEVINE HOLDINGS PVT. LTD. HONBLE BOMBAY HIGH COURT HAS HELD THAT PROVISIONS OF SECTION 234A, 234B AND 234C WERE APPLICABLE TO THE NOTIFIED PERSON ALSO. THEREFORE, UPHOLDING THE ORDE R OF THE FAA TO THAT EXTENT, WE HOLD THAT PROVISIONS OF SECTION 234 OF THE ACT ARE APPLICABLE. AS FAR AS CALCULATION PART IS CONCERNED, WE FIND MERITS IN THE SUBMISSION MADE BY THE ASSESSEE. THEREFORE, WE ARE RESTORING BACK THE ISSUE TO THE F ILE OF THE AO FOR FRESH ADJUDICATION WHO WOULD DECIDE THE ISSUE AFTER CONSI DERING THE AMOUNT TAXED DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED AND AFT ER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. GROUND NO.5 IS ALLOWED IN PART IN FAVOUR OF THE ASSESSEE. RESPECTFULLY, FOLLOWING THE ABOVE ORDER WE RESTORE BACK THE ISSUE TO THE FILE OF THE AO WHO WOULD LEVY THE INTEREST AS PER THE PROVISIONS O F SECTION 234 OF THE ACT AND GIVE CREDIT FOR THE TDS AMOUNTS. GROUND NO.6 FOR ALL THE THREE AYS.STANDS PARTLY ALLOWED, IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE DECISION OF COORDINATE B ENCH IN ASSESSEES OWN CASE, WE UPHOLD CHARGING OF INTEREST U/S 234 AND RE STORE THE ISSUE ON SIMILAR LINE TO THE FILE OF LD. AO FOR RE-COMPUTATI ON OF INTEREST U/S 234. RESULTANTLY, GROUND NO. 3 STANDS DISMISSED WHEREAS GROUND NO. 4 STANDS ALLOWED FOR STATISTICAL PURPOSES. IN NUTSHELL, THIS APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 8. NOW, WE TAKE UP ASSESSEES APPEAL ITA NO. 947/MU M/2015 FOR AY 1992-93 WHICH CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-40, MUMBAI [CIT(A)] APPEAL NO. CIT(A)-40/DCIT-CC-31/121 & 114/2009-10 DATED 05/11/2014 WHICH IS A COMMON ORDER AGAINST QUANTUM ASSESSMENT ORDER DATED 20/03/2003 PASSED U/S 144 READ WITH SECTION 147 AND QUANTUM ASSESSMENT ORDER DATED 26/12/2006 PASSED U/S 143(3) READ WITH SECTION 147 . THE REGISTRY HAS NOTED THAT THE APPEAL IS TIME BARRED BY ONE DAY AND THE ASSESSEE, VIDE AFFIDAVIT DATED 26/02/2015, EXPLAINING THE REASONS HAS REQUESTED FOR THE CONDON ATION OF THE SAME. WE FIND THAT THE DELAY HAS OCCURRED MAINLY DUE TO OBTA INING APPEAL FEES FROM THE CUSTODIAN. NO SERIOUS OBJECTIONS AGAINST THE SA ME ARE RAISED BY THE REVENUE. THEREFORE, WHILE CONDONING THE DELAY, WE P ROCEED TO DISPOSE-OFF THE SAME ON MERITS. 9. GROUND NOS. 1, 2 & 3 ARE RELATED WITH DISALLOWAN CE OF DEPRECIATION AND REPAIR EXPENSES AGAINST PREMISES SITUATED AT WORLI & BANDRA . THE ASSESSEE, ON SIMILAR LINES AS IN AY 1991-92, HAS SU FFERED DISALLOWANCE OF DEPRECIATION FOR RS.2,78,309/- & RS.13,821/- RESPECTIVELY AGAINS T PREMISES SITUATED AT MADHULI, WORLI AND BANDRA. HERE ALSO, WE FIND THAT NO COGENT DOCUMENTARY EVIDENCES COULD BE PRODUCED BY THE ASSE SSEE TO SUBSTANTIATE THE DEPRECIATION CLAIM AGAINST ANY OF THE PROPERTY AND THEREFORE, TAKING THE SAME STAND, WE DISMISS ASSESSEES APPEAL QUA DISALLOWANCE OF DEPRECIATION AND REPAIR EXPENSES AGAINST BOTH THE P REMISES. 9 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 10.1 IN GROUND NO.4, THE ASSESSEE IS AGGRIEVED BY CHARGING OF INTEREST U/S 220(2) OF THE INCOME TAX ACT, 1961. TO UNDERSTAND T HE ISSUE, WE NEED TO APPRECIATE THE CHRONOLOGY OF EVENTS RELATING TO ASS ESSMENT & APPEALS ETC. FOR THE IMPUGNED AY. THE ASSESSEE DID NOT FILE ANY RETURN FOR THE IMPUGNED AY. THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 144 O N 31/01/1995 DETERMINING TOTAL INCOME AT RS.174.76 LACS. THE APP EAL AGAINST THE SAME WAS DISMISSED BY LD. CIT(A) ON 15/11/1995. THE ASSE SSEE CONTESTED THE SAME BEFORE THIS TRIBUNAL VIDE ITA NO.638/B/96 ORDE R DATED 17/10/2005 WHERE THE ASSESSMENT ORDER WAS QUASHED AND THE MATT ER WAS RESTORED BACK TO THE FILE OF LD. AO FOR DE NOVO ASSESSMENT . 10.2 IN THE WHILE, THE CASE OF THE ASSESSEE WAS REO PENED U/S 147 VIDE NOTICE DATED 31/05/2001 AGAINST WHICH THE ASSESSEE FILED RETURN OF INCOME AT RS.26.40 LACS. THE REASSESSMENT WAS COMPLETED ON 20/03/2003 AND THE SAME RESULTED INTO FURTHER ENHANCEMENT OF THE I NCOME QUA ASSESSMENT MADE ON 31/01/1995 AND FINALLY, THE INCOME WAS RE-D ETERMINED AT RS.317.86 LACS. THE APPEAL AGAINST THE SAME WAS DIS MISSED BY LD.CIT(A) ON 31/07/2003 IN LIMINE AND ACCORDINGLY, THE SAME WAS FURTHER CONTESTED BEFORE THIS TRIBUNAL VIDE ITA NO. 5042/MUM/2005 DA TED 31/03/2006 WHERE THE ORDER OF LD.CIT(A) WAS SET ASIDE AND RESTORED B ACK TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION. 10.3 THE LD. AO, PURSUANT TO THE DIRECTIONS OF THE TRIBUNAL QUA ORIGINAL ASSESSMENT ORDER, PASSED FRESH ORDER OF ASSESSMENT ON 26/12/2006 WHERE THE INCOME WAS RE-DETERMINED AT RS.272.70 LACS. THE ASSESSEE FILED 10 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 APPEAL AGAINST THE SAME BEFORE LD. CIT(A) WHICH IS IMPUGNED ORDER DATED 05/11/2014. HENCE, THE IMPUGNED ORDER ADDRESSES THE ISSUES ARISING OUT OF ASSESSMENT ORDER PASSED U/S 143(3) READ WITH SECTIO N 147 ON 26/12/2006 AS WELL AS REASSESSMENT ORDER PASSED ON 20/03/2003. THE ASSESSEE IS AGGRIEVED BY ACTION OF LD. CIT(A) IN CONFIRMING THE APPLICABILITY OF SECTION 220(2). THE LD. AR CONTENDED THAT THE INTEREST U/S 220(2) SHOULD BE COMPUTED ONLY FROM THE DATE OF DE-NOVO ASSESSMENT I.E. 26/12/2006 WHEREAS LD. DR SUPPORTED THE STAND OF LD. CIT(A). 10.4 WE HAVE CAREFULLY PERUSED THE SAME. AT THE OU TSET, WE WOULD LIKE TO REPRODUCE THE STAND OF LD. CIT(A) AS CONTAI NED IN PARA-86 OF THE IMPUGNED ORDER WHICH READS AS FOLLOWS:- 86. THUS, THERE IS A UNIFORMITY OF OPINION ON THIS ISSUE IN THE DECISION OF HONBLE BOMBAY HIGH COURT AS WELL AS THE DECISION OF HONBL E MUMBAI TRIBUNAL, AS ALSO IN CBDTS CIRCULAR NO. 334 DATED 3/4/1982. ACCORDINGLY , IT IS HELD THAT NO INTEREST U/S 220(2) CAN BE CHARGED BASED ON THE ORIGINAL DEMAND NOTICE, IF A FRESH ASSESSMENT IS MADE PURSUANT TO THE DIRECTIONS OF THE APPELLATE AU THORITY. EVEN IN THE PRESENT CASE, PURSUANT TO THE ORDER OF THE HONBLE TRIBUNAL, THE ASSESSMENT MADE ON 31/1/1995 WAS SET ASIDE AND A FRESH ASSESSMENT ORDER WAS MADE ON 26/12/2006. FURTHER, MY LEARNED PREDECESSOR HAS ALSO ALLOWED APPEAL IN CASE OF HITE SH MEHTA FOR A.Y.1992-93, VIDE ORDER DATED 30/12/2011, AND OTHER PERSONS OF THE SA ME GROUP, THROUGH SEPARATE ORDERS. SINCE THE ISSUE IS NOW SQUARELY COVERED BY THE DECI SION OF HONBLE BOMBAY HIGH COURT IN CASE OF CIT V. M/S CHIKA OVERSEAS P.LTD. (SUPRA), THE AO ID DIRECTED NOT TO CHARGE INTEREST U/S. 220(2) FROM THE DATE OF ORIGINAL ASSE SSMENT. HOWEVER, AS MENTIONED ABOVE, IN THIS CASE, THE ASSESSMENT WAS REOPENED AN D THE REASSESSMENT WAS COMPLETED VIDE ORDER U/S.143(3) READ WITH SECTION 1 47 DATED 20/03/2003, WHICH HAS NOT BEEN SET ASIDE BY ANY APPELLATE AUTHORITY. THEREFOR E, IN THE EYES OF LAW, THE ASSESSMENT ORDER DATED 20/3/2003 STANDS. THEREFORE, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, I HOLD THAT INTEREST U/S .220(2) SHOULD BE CHARGED FROM THE DATE OF REASSESSMENT (20/3/2003), IN RESPECT OF DEM AND RELATING TO THE SAID ORDER AND WHICH HAS BEEN CONFIRMED BY THIS APPELLATE ORDER. I N RESPECT OF THE BALANCE DEMAND, INTEREST U/S.220(2) MAY BE CHARGED FROM THE DATE OF DE NOVO ASSESSMENT (26/12/2006). OF COURSE, WHILE CHARGING THE INTEREST, THE DEMAND NOTICE PERIOD (30/35 DAYS, AS APPLICABLE) SHOULD BE EXCLUDED. 11 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 10.5 UPON PERUSAL OF THE SAME, WE FIND THAT LD. CIT (A) HAS CLINCHED THE ISSUE IN RIGHT PERSPECTIVE ON THE FACTS OF THE CASE AND THE SAME IS QUITE LOGICAL AND FAIR ONE. FROM THE CHRONOLOGY OF EVENT, WE FIND THAT ONLY THE ORIGINAL ASSESSMENT ORDER WAS SET ASIDE BY THE TRIB UNAL WHEREAS THE REASSESSMENT ORDER REMAINED INTACT. THEREFORE, THE PECULIAR SITUATION GAVE RISE TO SEPARATE PERIODS FOR THE PURPOSE OF COMPUTA TION U/S 220(2). THE LD. CIT(A) UNDERSTOOD THE SAME IN THE CONTEXT OF JUDICI AL PRONOUNCEMENTS AS WELL AS STATUTORY PROVISIONS INCLUDING CBDT CIRCULA R AND THE SAME BEING, QUITE FAIR AND LOGICAL, REQUIRE NO INTERFERENCE ON OUR PART. HENCE, WHILE CONFIRMING THE SAME, WE DISMISS, THIS GROUND OF ASS ESSEES APPEAL. 11. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS OF APPEAL VIDE LETTER DATED 17/07/2017 WHICH DO NOT REQUIRE APPRECIATION OF NEW SET OF FACTS AND NO SERIOUS OBJECTIONS AGAINST THE SAME ARE RAISED B Y THE REVENUE AND THEREFORE THE SAME ARE TAKEN ON RECORD. THE ADDITIO NAL GROUNDS ARE RELATED WITH DISALLOWANCE OF RS.99,225/- U/S 14A AND CHARGI NG OF INTEREST U/S 234A/B/C. THE GROUNDS PERTAINING TO CHARGING OF INT EREST U/S 234A/B/C ARE IDENTICAL AS RAISED IN AY 1991-92. THEREFORE, TAKIN G THE SAME STAND, WE DISMISS ASSESSEES GROUNDS SO FAR AS IT RELATES TO CHARGING OF INTEREST U/S 234. HOWEVER, THE ASSESSEE STANDS BENEFITTED TO THE EXTENT OF TAX DEDUCTIBLE AT SOURCE FOR THE PURPOSE OF COMPUTATION AS ALREADY CONCLUDED BY US IN AY 1991-92. THEREFORE, THE COMPUTATION OF THE SAME IS RESTORED BACK TO THE FILE OF LD. AO ON SIMILAR LINES. 12 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 12. THE ONLY ISSUE REMAINING TO BE DECIDED IS DISAL LOWANCE OF RS.92,225/- U/S 14A. THE SAME HAS BEEN DISCUSSED AT PARA NUMBER -4 IN THE QUANTUM ORDER. IT WAS NOTED THAT THE ASSESSEE EARNED TAX FR EE INTEREST INCOME OF RS.45 LACS AND THE SAME CONSTITUTED APPROX. 51% OF TOTAL RECEIPTS OF THE ASSESSEE AND HENCE CALLED FOR DISALLOWANCE U/S 14A. AS AGAINST THIS, THE ASSESSEE CLAIMED EXPENDITURE OF RS.15.36 LACS. AFTE R MAKING VARIOUS ADJUSTMENTS IN THE EXPENDITURE, LD. AO COMPUTED THE SAID DISALLOWANCE AT RS.6,07,261/- BEING APPROX. 51% OF BALANCE EXPENDIT URE OF RS.11,90,708/-. THE LD. CIT(A), AFTER CONSIDERING THE FACTUAL MATRI X, RESTRICTED THE SAME TO 1/12 TH OF TOTAL EXPENDITURE OF RS. 11,90,708/- WHICH CAME TO RS.90,225/-. THE LD. AR PLEADED THAT THE TAX FREE INCOME WAS EAR NED ONLY DURING SHORT SPAN OF TIME AND THE IMPUGNED DISALLOWANCE AGAINST THE SAME WAS ON THE HIGHER SIDE WHEREAS LD. DR CONTENDED THAT THE FACTU AL MATRIX HAS DULY BEEN CONSIDERED BY THE LD. CIT(A) AND THEREFORE, TH E SAME WAS FAIR AND REASONABLE. 13. AFTER DUE CONSIDERATION OF THE SAME, WE FIND TH AT LD. AO HAS ALREADY ADJUSTED THE TOTAL EXPENSES CLAIMED BY THE ASSESSEE FOR VARIOUS DISALLOWANCES ALREADY MADE AND ARRIVED AT THE IMPUG NED DISALLOWANCE. THE LD. CIT(A) AFTER CONSIDERING THE SPAN DURING WH ICH THE RELATED TRANSACTIONS WERE CARRIED OUT, COMPUTED THE SAME AT 1/12 TH , WHICH WAS QUITE FAIR AND REASONABLE AND DO NOT REQUIRE OUR IN TERFERENCE AT ALL. THEREFORE, FINDING NO REASON TO INTERFERE WITH THE SAME, WE DISMISS THIS 13 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 GROUND OF ASSESSEES APPEAL. RESULTANTLY, THE APPEA L OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 14. NOW, WE TAKE UP ASSESSEES APPEAL ITA NO. 1093/ MUM/2015 FOR AY 1993-94 WHICH CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-52, MUMBAI [CIT(A)] APPEAL NO. CIT(A)-52/DC/AC-CC- 4(3)/120/2009-10 DATED 29/12/2014 WHICH ARISES OUT OF QUANTUM ASSESSMENT ORDER PASSED BY LD. DEPUTY COMMISSIONER OF INCOME TAX ON 22/02/2002 PASSED U/S 144 READ WITH SECTION 250. 15. THE ASSESSEE HAS RAISED IDENTICAL WORDED GROUND S AS RAISED IN AY 1991-92. GROUND NUMBERS 1 & 2 IS RELATED WITH DEPRECIATION & REPAIR & MAINTENANCE EXPENSES AGAINST TWO PROPERTIES SITUATED AT MADHULI , WORLI AND BANDRA . WE HAVE ALREADY DISMISSED ASSESSEES APPEAL ON TH ESE GROUNDS FOR EARLIER AYS AND THE FACTUAL MATRIX IS S AME IN THIS YEAR ALSO. THEREFORE, TAKING SAME STAND, WE DISMISS THE SAME. 16. GROUND NO. 3 IS RELATED WITH ALLOWANCE OF ESTIM ATED EXPENDITURE AGAINST THE INCOME EARNED BY THE ASSESSEE. THE ASSE SSEE EARNED PROFIT ON SALE OF SHARES AS RS.6,41,459/-, AGAINST WHICH LD. AO HAS ALLOWED ESTIMATED EXPENDITURE OF 10% I.E. 64,145/- IN THE A BSENCE OF PROPER BOOKS OF ACCOUNTS. THE LD. CIT(A) HAS CONFIRMED THE SAME, AGAINST WHICH THE ASSESSEE HAS RAISED THIS GROUND. ON FACTUAL MATRIX, WE FIND THE SAME TO BE FAIR AND LOGICAL ESTIMATION SINCE NO BOOKS WERE MAI NTAINED BY THE ASSESSEE AND THEREFORE, SEE NO REASON TO INTERFERE WITH THE SAME. THIS GROUNDS STANDS DISMISSED. 14 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 17. GROUND NUMBERS 4 & 5 ARE RELATED WITH CHARGEABI LITY OF INTEREST U/S 234A/B/C. THESE GROUNDS ARE IDENTICAL WORDED GROUND S AS RAISED IN EARLIER YEARS. THEREFORE, TAKING THE SAME STAND, WHILE UPHO LDING THE CHARGEABILITY OF INTEREST, THE MATTER IS RESTORED BACK TO THE FIL E OF LD. AO FOR RE- COMPUTATION , ON SIMILAR LINES. RESULTANTLY, GROUND NO. 4 STAND S DISMISSED WHEREAS GROUND NUMBER 5 STANDS ALLOWED FOR STATISTI CAL PURPOSES. RESULTANTLY, THE APPEAL OF THE ASSESSEE STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. 18.1 NOW, WE TAKE UP REVENUES APPEAL ITA NO. 1268/ MUM/2015 FOR AY 1991-92 WHICH CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-52, MUMBAI [CIT(A)] APPEAL NO. CIT(A)-52/DC/AC- CC4(3)/119/2009-10 DATED 22/12/2014 . THE ASSESSMENT WAS FRAMED BY LD. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-31, M UMBAI [AO] U/S 144 ON 26/12/2006. THE ONLY GRIEVANCE OF THE REVENUE P ERTAINS TO DELETION OF ADDITION OF RS. 30 LACS ON ACCOUNT OF SUPPRESSION O F SALE PRICE OF 7500 SHARES OF ACC LIMITED . 18.2 THE RELEVANT FACTS QUA THE SAME ARE DISCUSSED IN PARA-4 OF THE QUANTUM ASSESSMENT ORDER. DURING ASSESSMENT PROCEED INGS, IT WAS NOTED THAT THE ASSESSEE EARNED SHARE TRADING INCOME OF RS.10,75,114/- ON CERTAIN DELIVERY BASED SHARE TRANSACTIONS WHICH WER E ROUTED THROUGH THE BROKING CONCERN NAMELY ASHWIN S.MEHTA , A PROPRIETARY CONCERN OF ONE OF THE DIRECTOR OF THE ASSESSEE COMPANY. THERE WAS NO ACTUAL MOVEMENT OF FUND AND THE TRANSACTIONS WERE ENTERED THROUGH JOUR NAL ENTRIES BY WAY OF 15 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 DEBIT AND CREDIT, THE NET RESULT OF WHICH WAS PROFI T OF RS.10,75,114/- TO THE ASSESSEE AND THE SAME WAS REFLECTED IN THE PROFIT & LOSS ACCOUNT. 18.3 AFTER REVIEWING THE AUDIT REPORT OF THREE CHARTERED ACCOUNTANT FIRMS APPOINTED BY THE SPECIAL COURT, CERTAIN DISCREPANCI ES WERE NOTED IN SALE / PURCHASE RATES OF A STOCK NAMELY ACC LIMITED REFLECTED BY THE ASSESSEE VIS--VIS RATES QUOTED BY THE STOCK EXCHANGE ON TRA DING DAYS. RESULTANTLY, THE LD. AO, BY TAKING THE AVERAGE RATES OF A PARTIC ULAR DAY AND APPLYING THE SAME TO RESPECTIVE SALE / PURCHASES, WORKED OUT SUP PRESSION OF PROFIT AGGREGATING TO RS.36.87 LACS WHICH COMPRISED OF INF LATED PURCHASE PRICE FOR RS.6.87 LACS AND SUPPRESSED SALE VALUE FOR RS.3 0 LACS. THE ASSESSEE WHILE CONTESTING THE SAME, FURNISHED CERTAIN EVIDEN CES IN THE SHAPE OF CONFIRMATION ETC. FROM THE BROKING FIRM AND ALSO PO INTED OUT CERTAIN DISCREPANCIES IN THE DATES TAKEN BY LD. AO. HOWEVER , NOT CONVINCED, LD. AO ADDED THE SAME TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF SUPPRESSED PROFITS. 18.4 AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WIT H SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 22/12/2014. THE LD .CIT(A), AFTER CONSIDERING THE FACTUAL MATRIX ACCEPTED THE EXPLANA TION FURNISHED BY ASSESSEE WITH RESPECT TO PURCHASE PRICES REFLECTED BY THE ASSESSEE. THE BALANCE DIFFERENCE OF RS.30 LACS PERTAINING TO VARI ATION IN SALE PRICE WAS DELETED BY LD. CIT(A) BY MAKING THE FOLLOWING OBSER VATIONS:- 11. AS REGARDS SALES OF 7500 SHARES OF ACC LTD., IT IS SUBMITTED THAT CONTRACT FOR THE SAME WAS DRAWN PRIOR TO 30/08/1990, ON 14/09/1990 I TSELF, AND THE BROKER VIDE HIS LETTER DATED 11/12/2006, EXPLAINED THE CIRCUMSTANCES IN WH ICH THE SAID TRANSACTION HAD TAKEN PLACE AND THE COUNTER PARTY WAS M/S NAGARDAS LALJI. AS REGARDS THE CONTENTION OF THE 16 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 AO THAT THERE IS NO DELIVERY OF 7500 SHARES TO M/S NAGARDAS LALJI AND THERE WAS NO POSSIBILITY TO GET INFORMATION FROM THIS PARTY AFTE R SO MANY YEARS, IT APPEARS THAT THE ASSESSEE HAD SUBMITTED EVIDENCE IN THE FORM OF PAY- IN SLIP OF CLEARING HOUSE OF BOMBAY STOCK EXCHANGE FROM M/S ASHWIN S.MEHTA, EVID ENCING DELIVERY OF SHARES BY THE SAID BROKER. THEREFORE, AS FAR AS THIS TRANSACT ION IS CONCERNED, THE CONTENTION OF THE LEARNED AO DOES NOT APPEAR TO BE CORRECT. ON THE CO NTRARY, THE CONTENTION OF THE LEARNED AR APPEARS TO BE JUSTIFIED. 12. IN VIEW OF THE ABOVE FACTS, THE VARIATION IN PU RCHASES AND SALES OF SHARES WORKED OUT BY THE AO BECOMES UNSUSTAINABLE. THE SAME IS, T HEREFORE, DIRECTED TO BE DELETED. THIS GROUND OF APPEAL IS, ACCORDINGLY, ALLOWED. 18.5 THE LD. DR CONTESTED THE STAND TAKEN BY LD. CI T(A) AND CONTENDED THAT LARGE VARIATION WAS NOTICED IN SALE / PURCHASE RATES REFLECTED BY THE ASSESSEE WHICH COULD NOT BE SUBSTANTIATED WITH PROP ER DOCUMENTARY EVIDENCES AND THERE WERE DISCREPANCIES IN THE TRANS ACTIONS. THE LD. DR FURTHER CONTENDED THAT THE CONFIRMATION FROM THE RE SPECTIVE PARTIES AFTER THE GAP OF MORE THAN 15 YEARS WAS NOT POSSIBLE. PER CONTRA, LD. AR PLACED RELIANCE ON THE STAND OF LD. CIT(A) AND CONTENDED T HAT THE TRANSACTIONS WERE DULY CONFIRMED BY THE BROKER FIRM AND BACKED B Y SUPPORTING EVIDENCES AND THEREFORE, THE ADDITIONS WERE RIGHTLY BEEN DELETED BY LD. CIT(A). 18.6 WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS AND PERUSE RELEVANT MATERIAL ON RECORD. THE ONLY DISPUTE IS WI TH RESPECT TO SALE PRICE OF 7500 SHARES OF ACC SOLD BY THE ASSESSEE. THE ALLEGATION OF THE LD. AO IS THAT THE SHARES WERE SOLD ON 14/09/2009 AT PRICES M UCH BELOW THAN PREVAILING MARKET PRICES WHEREAS THE CONTENTION OF THE ASSESSEE IS THAT THE SALE TRANSACTIONS WAS CARRIED OUT THROUGH BROKER FI RM AND THE SAME TOOK PLACE MUCH BEFORE 30/08/1990 AND THE REFLECTED PRIC ES ARE DULY SUPPORTED 17 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 BY THE DOCUMENTS AND THE CONFIRMATION OF THE BROKER FIRM. THE ASSESSEE HAS PLACED CERTAIN DOCUMENTS PERTAINING TO THE TRAN SACTIONS AT PAGE NUMBERS 27 TO 60 OF THE PAPER BOOK WHICH CONTAIN CLEARING STATEMENT, ASSESSEES TRANSACTIONS DETAILS CARRIED THROUGH BRO KER FIRM, LEDGER EXTRACTS AND CONTRACT NOTES. A PERUSAL OF STOCK EXCHANGE CLEARING DOCUMENT PLACED AT PAGE NO.27, PRIMA FACIE , REVEALS THAT THE BROKER NAMELY ASHWIN MEHTA HAS SOLD 1500 ACC SHARES @RS.1450/- A/C NAGARDAS LALJEE . THE ASSESSEE HAS PLACED ON RECORD CONFIRMATORY LETTER D ATED 11/12/2006 FROM THE BROKER, THE RELEVANT PART OF WHICH IS REPRODUCE D BELOW:- B. SO FAR AS THE CONTRACT DRAWN FOR SALE OF 7500 SHAR ES OF ACC ON BEHALF OF YOUR COMPANY IS CONCERNED, THE ACTUAL SALE OF THE SAME W AS NEGOTIATED AND CONCLUDED IN SETTLEMENT NO. 10 THOUGH THE CONTRACT NOTE WAS DRAW N IN SETTLEMENT NO. 11. THESE SHARES HAVE BEEN SOLD BY MY BROKERAGE FIRM ON BEHAL F OF YOUR COMPANY TO M/S NAGARDAS LALJI, A MEMBER OF THE BOMBAY STOCK EXCHAN GE AT RELEVANT TIME BEARING CLEARING NO.540. THE SALE CONSIDERATION WAS IN FACT RECEIVED BY MY BROKERAGE FIRM ON 30.08.1990 ITSELF AND AS BY WAY OF CREDIT KAPLI (A CREDIT NOTE) FOR WHICH MY FIRM HAS DULY TAKEN THE CREDIT FOR ON 30.08.1990 ITSELF. IN SUPPO RT OF MY CONTENTION, I AM PLEASED TO ENCLOSE A COPY OF MY PAY-IN STATEMENT AT ANNEXURE-A AS WAS SUBMITTED TO THE CLEARING HOUSE OF BOMBAY STOCK EXCHANGE ON 31.08.1990. IN TH IS STATEMENT, MY BROKERAGE FIRM HAS RECEIVED THE CREDIT OF RS.1,08,75,000/- AS A CO NSIDERATION OF SALE OF 7500 SHARES OF ACC @RS.1450/- PER SHARE WHICH FACT IS ALSO RECORDE D ON THE PAY-IN STATEMENT. IT IS EVIDENT THEREFROM THAT THE SALE WAS CONCLUDED ON BE HALF OF YOUR COMPANY PRIOR TO 30.08.1990 WHEN THE PREVALENT PRICES WERE IN THE VI CINITY OF OR EVEN LESS THAN RS.1400/- PER SHARE. THE CONTRACT FOR SALE WAS PASSED LATE ON 14.09.1990. THUS THE SALE CONSIDERATION HAS BEEN RECEIVED BY MY BROKERAGE FIR M ON BEHALF OF YOUR COMPANY AT THE CONTRACTED PRICE AND THERE IS NO PRICE VARIATIO N WHATSOEVER. IN SUPPORT OF MY CONTENTION, I AM PLEASED TO ENCLOSE A STATEMENT OF THE BROKERAGE FIRM OF M/S NAGARDAS LALJI AS IS FORMING PART OF MY BOOKS OF ACCOUNTS AT EXHIBIT B. UPON PERUSAL OF THE SAME, WE FIND THAT THE ASSESSEE , TO SOME EXTENT, COULD SUBSTANTIATE THE REFLECTED SALE PRICE WHEREAS LD. A O WITHOUT CONTROVERTING THE SAME IN ANY MANNER WITH ANY COGENT MATERIAL, TO OK THE AVERAGE OF 18 ITA NOS.947,1268,1092 &1093/MUM/2015 AATUR HOLDINGS PRIVATE LIMITED ASSESSMENT YEARS- 1991-92, 1992-93,1993-94 PREVAILING PRICE OF 14/09/2009 AND APPLIED THE SAME AND ADDED THE DIFFERENTIAL AMOUNT TO THE INCOME OF THE ASSESSEE, WHICH WAS NOT FAIR AND PROPER. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF DOUBTS, CONJECTURE S AND SURMISES WITHOUT SUPPORTING THE SAME WITH ANY COGENT MATERIA L. HENCE, FINDING THE STAND OF LD. CIT(A) FAIR AND REASONABLE, WE SEE NO REASON TO INTERFERE WITH THE SAME AND INCLINED TO DISMISS REVENUES APPEAL QUA THIS GROUND. 19. FINALLY, THE REVENUES APPEAL STANDS DISMISSED WHEREAS THE ASSESSEES APPEAL STANDS PARTLY ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2017. SD/- SD/- (C. N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04.10.2017 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. #% / THE APPELLANT 2. &#% / THE RESPONDENT 3. . ( ) / THE CIT(A) 4. . / CIT CONCERNED 5. (0 , 0 , / DR, ITAT, MUMBAI 6. 12 / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI