DCIT CC 23, MUMBAI V. HITESH MEHTA, MUMBAI

ITA 972/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71873 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 21-11-2013
• Assessment Year: 1996-1997
• Appeal Filed On: 03-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Section: 234B; 10; 2; 11

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H B ENCH, MUMBAI , !' #$% , !& ! ' BEFORE SHRI VIJAYPAL RAO, JM AND SHRI N.K. BILL AIYA, AM ./ I.T.A. NO. 9158/MUM/2010 ( ( ( ( ( / ASSESSMENT YEAR : 1996-97 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 ./ I.T.A. NO. 972/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 1996-97 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 ./ I.T.A. NO. 207/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 1997-98 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 ./ I.T.A. NO. 9159/MUM/2010 ( ( ( ( ( / ASSESSMENT YEAR : 1998-99 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA 2 ./ I.T.A. NO. 973/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 1998-99 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 ./ I.T.A. NO. 1671/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2000-01 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 ./ I.T.A. NO. 3327/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2000-01 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 ./ I.T.A. NO. 2171/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2004-05 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 ./ I.T.A. NO. 3328/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2004-05 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 SHRI HITESH S. MEHTA 3 ./ I.T.A. NO. 9160/MUM/2010 ( ( ( ( ( / ASSESSMENT YEAR : 2007-08 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 ./ I.T.A. NO. 974/MUM/2011 ( ( ( ( ( / ASSESSMENT YEAR : 2007-08 THE DCIT, CENTRAL CIRCLE-23, AAYAKAR BHAVAN, MUMBAI-400 020 SHRI HITESH S. MEHTA, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI-400 018 ) !& ./ * ./PAN/GIR NO. : ABAPM 4491J ( )+ /APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / ASSESSEE BY : ` SHRI DHARMESH SHAH ,-)+ / . ! /DEPARTMENT BY : DR. P. DANIEL / 01& / DATE OF HEARING :21.11.2013 23( / 01& / DATE OF PRONOUNCEMENT :29.11.2013 !4 / O R D E R PER BENCH: THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENU E ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A)-40, MUMBAI PERTAINING TO DIFFERENT ASSESSMENT YEARS MENTIONED HEREINABOVE. AS COMMON ISSUES ARE INVOLVED IN BOTH ASSESSEES AND REVENUES APPEA L, ALL THESE APPEALS SHRI HITESH S. MEHTA 4 WERE CONSOLIDATED AND HEARD TOGETHER AND ARE DISPOS ED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. ITA NO. 9158/M/2010 A.Y. 1996-97- ASSESSEES APP EAL 2. THE ASSESSEE HAS RAISED 4 SUBSTANTIVE GROUNDS OF APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 1,2 & 3. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 3. GROUND NO. 4 RELATES TO THE DISALLOWANCE OF INTE REST EXPENSES AMOUNTING TO RS. 4,06,76,502/ TOWARDS INTEREST EXPE NDITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFI RMED BY THE LD. CIT(A). 4. THIS ISSUE HAS BEEN CONSIDERED BY THE LD. CIT(A) AT PARA-9 ON PAGE-5 OF HIS ORDER AND AT PARA 9.3.2 THE LD. CIT(A ) OBSERVED THAT THE FACTS ARE IDENTICAL TO THE FACTS IN THE PRESENT CA SE OF THE ASSESSEE FOR A.Y. 2005-06. THE LD. CIT(A) WENT ON TO FOLLOW THE FIN DINGS GIVEN BY HIS PREDECESSOR FOR A.Y. 2005-06. 5. THE LD. COUNSEL SUBMITTED THAT IN A.Y. 2005-06, THE TRIBUNAL IN ITA NO. 7726 & 7727/M/2010 HAS RESTORED THIS ISSUE TO THE FILES OF THE LD. CIT(A) TO ADJUDICATE AFRESH ALONG WITH THE ADJU DICATION OF THE OTHER GROUNDS PERTAINING TO THE REJECTION/RELIABILITY OF THE BOOKS OF ACCOUNT. NO DISTINGUISHING FACTS HAVE BEEN BROUGHT ON RECORD BY THE LD. DEPARTMENTAL REPRESENTATIVE. 6. AFTER CAREFULLY PERUSING THE ORDER OF THE LD. CI T(A), WE FIND THAT THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2005-0 6 IN ITA NO. 7726 & 7727/M/10 AT PARA-5 ON PAGE-4 OF ITS ORDER HAS HELD AS UNDER: SHRI HITESH S. MEHTA 5 GROUND NO. 4 RELATES TO THE ACTION OF THE LD.CIT(A ) IN CONFIRMING THE LIABILITIES AMOUNTING TO RS.11,24,9 9,052/- AND RS.12,61,36,245/- RESPECTIVELY FOR THE A.YS 2005-06 AND 2006-07 TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSE E. IT IS PERTINENT TO NOTE THAT THE FINDINGS GIVEN IN PARA 3.3 ABOVE IN R ESPECT OF REJECTION/RELIABILITY OF THE BOOKS OF ACCOUNTS AND THE PROPOSED ADJUDICATION OF THE LD.CIT(A) IN VIEW OF THE SAID D IRECTION MAY HAVE DIRECT IMPACT ON THE ISSUE OF THE IMPUGNED LIABILIT Y, WE SET ASIDE THIS ISSUE ALSO TO THE FILES OF THE LD.CIT(A) TO ADJUDIC ATE AFRESH ALONG WITH THE ADJUDICATION OF THE RESPECTIVE GROUND PERTAININ G TO THE REJECTION/RELIABILITY OF THE BOOKS OF ACCOUNTS. 7. RESPECTFULLY FOLLOWING THE FINDINGS OF THE TRIBU NAL THIS ISSUE IS RESTORED BACK TO THE FILES OF THE AO TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL IN A.Y. 2005-06 AND 2006-07 AS MENTIONED HEREINABOVE. GROUND NO. 4 IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE REA DS AS UNDER: THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT AS PER THE DECISION OF HONBLE SPECIAL COURT DT. 30.4.2010 IN MP. NO. 41 OF 1999, THE ASSETS UNDER CONSIDERATION AND THE CONSEQUENTIAL INCOME BELONGS TO SHRI HARSHAD S. MEH TA AND HENCE THE INCOME ASSESSED BY THE AO OUGHT TO HAVE B EEN TAXED IN THE HANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE HANDS OF THE APPELLANT. 9. SIMILAR ISSUE CAME UP FOR CONSIDERATION IN ASSES SEES OWN CASE FOR A.Y. 1994-05. WE FIND THAT THE TRIBUNAL IN ITA NO. 5587 TO 5589/M/2011 AT PARA-4 ON PAGE-4 OF ITS ORDER HAS CO NSIDERED A SIMILAR GROUND WHEREIN THE TRIBUNAL AT PARA-5 HAS HELD AS U NDER: AFTER GOING THROUGH THE ADDITION GROUND FILED BY T HE ASSESSEE, WE NOTED THAT THE GROUND IS LEGAL GROUND, WHICH DOES NOT REQUIRE ANY NEW FACTS TO BE BROUGHT ON REC ORD. IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CA SE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, REPORTED I N (1998) SHRI HITESH S. MEHTA 6 229 ITR 383 , THE LEGAL GROUND CAN BE ADMITTED, IF NO NEW FACTS ARE TO BE BROUGHT ON RECORD. HOWEVER, AFTER GOING T HROUGH THE ADDITIONAL GROUND RAISED BY THE ASSESSEE FOR ALL TH E ASSESSMENT YEARS INVOLVED HERE BEFORE US, WE FOUND THAT THE GROUND IS FULLY ACADEMIC IN NATURE FOR THE REASON T HAT IF THE HONBLE SUPREME COURT DECIDES SOMETHING THAT HAS TO BE FOLLOWED WITHOUT ANY DISPUTE. THE DECISION OF THE H ONBLE APEX COURT IS LAW OF LAND, WHICH HAS TO BE FOLLOWED BY E VERY AUTHORITY. THEREFORE, IN OUR VIEW, NO DIRECTION IS TO BE REQUIRED TO BE GIVEN TO THE AO IN THIS RESPECT BECAUSE IF TH E HONBLE APEX COURT DECIDES THAT ALL THE INCOME BELONGS TO S HRI HARSHAD S. MEHTA, THEN THE INCOME HAS TO BE ASSESSE D IN THE HANDS OF SHRI HARSHAD S. MEHTA, NOT IN THE HANDS OF ANY OTHER PERSON. THEREFORE, IN OUR VIEW, THERE IS NO NEED TO ISSUE ANY DIRECTION AS THE DECISION OF THE HONBLE SUPREME CO URT HAS TO BE FOLLOWED IN ANY CASE. ACCORDINGLY, BY ADMITTING THE GROUNDS RAISED BY THE ASSESSEE FOR ALL THESE YEARS, WE TREA T THE SAME AS ACADEMIC IN NATURE. 10. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED AS ACADEMIC IN NATURE FOLLOWING THE OBSER VATIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 1994-05 (S UPRA). 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 972/M/2011 1996-97 - REVENUES APPEAL 12. THE REVENUE HAS RAISED ONE SUBSTANTIVE GROUNDS OF APPEAL WHICH CONSIST OF 5 PARTS A, B, C, D & E. GROUND NO. 1 (A ) TO 1 (C) RELATE TO THE DIVIDEND INCOME OF RS. 1,60,64,916/-. THE GRIEVANC E OF THE REVENUE IS THAT THE LD. CIT(A) ERRED IN HOLDING THAT THE DIVI DEND HAS NOT ACCRUED TO THE ASSESSEE AND THEREFORE SUCH DIVIDEND INCOME COU LD NOT FORM PART OF THE TOTAL INCOME OF THE ASSESSEE. 13. IT IS THE SAY OF THE LD. COUNSEL THAT SIMILAR I SSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 5 587/M/2011 SHRI HITESH S. MEHTA 7 PERTAINING TO A.Y. 1994-95. THE LD. DR RELIED ON T HE FINDINGS OF THE AO. 14. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LO WER AUTHORITIES AND THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FO R A.Y. 1994-95. THE ISSUE HAS BEEN DISCUSSED BY THE TRIBUNAL AT PARA-7. 2 ON PAGE-7 OF ITS ORDER AND AT PARA-7.6, THE TRIBUNAL HELD AS UNDER: AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND NO INFIRMITY IN THE FI NDINGS OF THE LEARNED CIT(A), WHO ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION OF THE HONBLE BOMB AY HIGH COURT IN THE CASE OF AATUR HOLDINGS PVT. LTD (SUPRA) . THIS DECISION HAS ALSO BEEN CONFIRMED AGAIN BY THE HONB LE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S PALLAVI HOLDING PVT. LTD. (SUPRA) , WHICH HAS BEEN CONFIRMED BY THE HONBLE SUPREME COURT. THE FINDING OF THE LEARNED CIT(A) RE MAINED UNCONTROVERTED AS NO OTHER MATERIAL WAS BROUGHT ON RECORD TO HOLD THAT THE FINDING OF THE LEARNED CIT(A) IS NOT CORRECT. ACCORDINGLY, WITHOUT GOING INTO DETAIL FURTHER, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE. AS NO DISTINGUISHING FACT HAS BEEN BROUGHT ON RECO RD BY THE LD. DR, RESPECTFULLY FOLLOWING THE FINDINGS OF THE TRIB UNAL, WE CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. GROUND NO. 1 (A) TO 1 (C) ARE ACCORDINGLY DISMISSED. 15. GROUND NO. 1 (D) AND 1(E) RELATE TO CHARGING OF INTEREST U/S. 234A, 234B & 234C OF THE ACT. 16. THE LD. DR BROUGHT TO OUR NOTICE THAT THE DECIS ION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS DIV INE HOLDING PVT. LTD. IN INCOME TAX APPEAL NO. 3334 OF 2010 WHICH HAS BEE N FOLLOWED BY THE TRIBUNAL IN THE CASE OF TOPAZ HOLDING PVT. LTD IN I TA NO. 7295/M/2012. SHRI HITESH S. MEHTA 8 WE FIND THAT THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT THE CHARGEABILITY OF INTEREST U/S. 234A, 2324B AND 234C OF THE ACT DOES NOT FALL WITHIN THE DOMAIN OF THE SPECIAL COURT (CONTRO L OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) AT 1992. SINCE LEVY OF INTEREST IS MANDATORY AND IS VERY MUCH APPLICABLE IN THE CASE OF NOTIFIE D PERSONS, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONA L HIGH COURT (SUPRA), GROUND NO. 1 (D) AND 1 (E) ARE ALLOWED. NEEDLESS T O MENTION THAT THE LEVY OF INTEREST WOULD BE CONSEQUENTIAL. 17. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED. ITA NO. 207/M/2011 A.Y. 1997-98 ASSESSEES APP EAL 18. THE ASSESSEE HAS RAISED 4 SUBSTANTIVE GROUNDS O F APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 1,2 & 3. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 19. GROUND NO. 4 RELATES TO THE DISALLOWANCE OF INT EREST EXPENSES AMOUNTING TO RS. 4,55,61,624/- TOWARDS INTEREST EXP ENDITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFI RMED BY THE LD. CIT(A). 20. THIS GROUND IS IDENTICAL TO GROUND NO. 4 OF I TA NO. 9158/M/2010 FOR A.Y. 1996-97 IN ASSESSEES APPEAL. FOLLOWING TH E SAME REASONING MENTIONED HEREINABOVE AT PARA 3 TO 7, GROUNDS OF A PPEAL TAKEN FOR A.Y. 1997-98 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 21. THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND OF ITA NO. 9158/M/2010 FOR A.Y. 1 996-97. FOLLOWING SHRI HITESH S. MEHTA 9 THE SAME REASONING, THE ADDITIONAL GROUND RAISED B Y THE ASSESSEE IS DISMISSED AS PER THE DIRECTIONS GIVEN IN PARAS 8 TO 10. 22. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 9159/M/10 A.Y. 1998-99 ASSESSEES APPEAL 23. THE ASSESSEE HAS RAISED 4 SUBSTANTIVE GROUNDS O F APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 1,2 & 3. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 24. GROUND NO. 4 RELATES TO THE DISALLOWANCE OF INT EREST EXPENSES AMOUNTING TO RS. 90,04,506/- TOWARDS INTEREST EXPEN DITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFIRMED BY THE LD. CIT(A). 25. THIS GROUND IS IDENTICAL TO GROUND NO. 4 OF I TA NO. 9158/M/2010 FOR A.Y. 1996-97 IN ASSESSEES APPEAL. FOLLOWING TH E SAME REASONING MENTIONED HEREINABOVE AT PARA 3 TO 7, GROUNDS OF A PPEAL TAKEN FOR A.Y. 1998-99 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 26. THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND OF ITA NO. 9158/M/2010 FOR A.Y. 1 996-97. FOLLOWING THE SAME REASONING, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS DISMISSED AS PER THE DIRECTIONS GIVEN IN PARAS 8 TO 10. 27. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. SHRI HITESH S. MEHTA 10 ITA NO. 973/M/2011 A.Y. 1998-99 REVENUES APPEA L 28. GROUND NO. 1 TO 3 RELATE TO THE DIVIDEND INCOME OF RS. 1,54,01,736/-. THIS GROUND IS IDENTICAL TO GROUND NO. 1(A) TO 1(C) OF ITA NO. 972/M/2011 FOR A.Y. 1996-97 IN REVENUES APPEA L. FOLLOWING THE SAME REASONING MENTIONED HEREINABOVE AT PARA 12 TO 14, GROUND NO. 1,2 & 3 ARE DISMISSED. 29. GROUND NO. 4 AND 5 RELATE TO CHARGEABILITY OF INTEREST U/S. 234A, 234B & 234C OF THE ACT. THIS GROUND IS IDENTICAL TO GROUND NO. 1(D) AND 1(E) OF ITA NO. 972/M/2011 FOR A.Y. 1996-97 IN RE VENUES APPEAL. FOLLOWING THE SAME REASONING MENTIONED HEREINABOVE AT PARA 15 & 16, GROUND NO. 4 & 5 ARE ALLOWED. 30. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED. ITA NO. 1671/M/2012 A.Y, 2000-01 ASSESSEES APP EAL 31. THE ASSESSEE HAS RAISED 5 SUBSTANTIVE GROUNDS O F APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 1 & 3. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 32. GROUND NO. 2 RELATES TO THE REJECTION OF BOOKS OF ACCOUNT BY THE AO AND CONFIRMED BY THE LD. CIT(A). THE LD. CIT(A) HAS FOLLOWED HIS ORDER IN ASSESSEES OWN CASE FOR A.Y. 2006-07. THE SAID FINDINGS OF THE LD. CIT(A) HAS BEEN SET ASIDE TO THE FILES OF THE L D. CIT(A) BY THE TRIBUNAL IN ITA NO. 7726 & 7727/M/10 VIDE ORDER DT. 26.4.2013. AS NO DISTINGUISHING FACTS HAVE BEEN BROUGHT ON RECORD BY THE LD. DR, GROUND SHRI HITESH S. MEHTA 11 NO. 2 IS ACCORDINGLY RESTORED BACK TO THE FILES OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO FOLLOW THE DECISION OF THE TR IBUNAL FOR A.Y. 2006- 07. GROUND NO. 2 IS ALLOWED FOR STATISTICAL PURPOS E. 33. GROUND NO. 4 RELATES TO THE ADDITION ON ACCOUNT OF DEPOSITS IN THE BANK ACCOUNT TREATED AS SUSPENSE ENTRIES AMOUNTING TO RS. 50,641/-. WE FIND THAT IDENTICAL ISSUES WERE BEFORE THE TRIBUNAL IN ITA NO 5587/M/11. THE TRIBUNAL HAS CONSIDERED IDENTICAL ISSUES AT PAR A-6 OF ITS ORDER AND AT PARA 6.3 THE TRIBUNAL HELD AS UNDER: AFTER CONSIDERING THE RIVAL SUBMISSIONS AND CONSIDE RING THE MATERIAL ON RECORD, WE FOUND THAT THIS ISSUE NEEDS READJUDICATION AT THE END OF THE LEARNED CIT(A). LE ARNED CIT(A) HAS DISMISSED THE GROUND OF THE ASSESSEE BY OBSERVI NG IN PARA 8.2(III) AT PAGE 6, WHICH ARE AS UNDER :- (III) IN RESPECT OF THE ITEM AT SR. NO.2 TO 4, THE APPELLANT HAS MERELY CLAIMED THAT THE SAME REPRESENTS DIVIDEND IN COME OF THE APPELLANT. HE HAS HOWEVER, PLEADED BEFORE THE A SSESSING OFFICER THAT THE SAID EVIDENCE IS NOT IN HIS POSSES SION AND HENCE THE SAME MAY BE OBTAINED FROM THE CUSTODIAN. I FIND THAT THE ONUS TO EXPLAIN THE DEPOSIT ENTRY IS ON TH E APPELLANT AND HENCE UNLESS THE BURDEN OF PROVING THE DEPOSIT IS DISCHARGED, THE ONUS DOES NOT SHIFT ON THE ASSESSIN G OFFICER. IT IS SEEN THAT NO EVIDENCE IS FILED IN RESPECT OF THE CLAIM OF THE APPELLANT THAT THE AMOUNT OF RS.37,715/-, RS.2,54,5 00/- AND RS6,80,500/- DOES NOT REPRESENT INTEREST INCOME. IN THE LIGHT OF THE SAME, THE SAID ADDITION OF THE SAID AMOUNTS AS INTEREST INCOME IS CONFIRMED. AFTER GOING THROUGH THE FINDING OF THE LEARNED CIT( A), WE FOUND THAT THE LEARNED CIT(A) SHOULD HAVE OBTAINED THE DE TAILS FROM CUSTODIAN AS THE CUSTODIAN APPOINTED BY THE SPECIAL COURT, IS NOT OBLIGED TO ASSESSEE BY PROVIDING NECESSARY DETA ILS IN SPITE OF VARIOUS REQUESTS MADE ON BEHALF OF THE ASSESSEE. COPIES OF REQUESTS ARE PLACED ON RECORD. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH AFTER OBTAINI NG NECESSARY SHRI HITESH S. MEHTA 12 DETAILS FROM THE CUSTODIAN AND AFTER AFFORDING OPPO RTUNITY OF HEARING TO THE ASSESSEE. WE ORDER ACCORDINGLY. THE LD. CIT(A) IS DIRECTED TO READJUDICATE THIS IS SUE IN THE LINE OF THE ABOVE DIRECTIONS OF THE TRIBUNAL FOR A.Y. 1994- 95. GROUND NO. 4 IS ALLOWED FOR STATISTICAL PURPOSE. 34. GROUND NO. 5 RELATES TO THE DISALLOWANCE OF INT EREST EXPENSES AMOUNTING TO RS. 79,53,894/- TOWARDS INTEREST EXPEN DITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFIRMED BY THE LD. CIT(A). 25. THIS GROUND IS IDENTICAL TO GROUND NO. 4 OF I TA NO. 9158/M/2010 FOR A.Y. 1996-97 IN ASSESSEES APPEAL. FOLLOWING TH E SAME REASONING MENTIONED HEREINABOVE AT PARA 3 TO 7, GROUND OF AP PEAL TAKEN FOR A.Y. 2000-01 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 26. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 3327/M/2012 A.Y. 2000-01 REVENUES APPE AL 27. THE ONLY GROUND RAISED BY THE REVENUE RELATES T O CHARGING OF INTEREST U/S. 234A & 234B OF THE ACT. THIS GROUND IS IDENTICAL TO GROUND NO. 1(D) AND 1(E) OF ITA NO. 972/M/2011 FOR A.Y. 1996-97 IN REVENUES APPEAL. FOLLOWING THE SAME REASONING MENT IONED HEREINABOVE AT PARA 15 & 16, THIS GROUND RAISED BY THE REVENUE IS ALLOWED. 28. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ITA NO. 2171/M/2012 A.Y. 2004-05 ASSESSEES APP EAL SHRI HITESH S. MEHTA 13 29. THE ASSESSEE HAS RAISED 5 SUBSTANTIVE GROUNDS O F APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 2,3 & 4. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 30. GROUND NO. 1 RELATES TO THE REJECTION OF BOOKS OF ACCOUNT BY THE AO AND CONFIRMED BY THE LD. CIT(A). THIS GROUND IS IDENTICAL TO GROUND NO.24 OF ITA NO. 1671/M/2012 FOR A.Y. 2000-01 IN ASSESSEES APPEAL. FOLLOWING THE SAME REASONING MENTIONED HEREINABOVE AT PARA 32, GROUND OF APPEAL TAKEN FOR A.Y. 2004-05 IS ALSO ALLOWED FO R STATISTICAL PURPOSE. 31. GROUND NO. 5 RELATES TO THE DISALLOWANCE OF IN TEREST EXPENSES AMOUNTING TO RS. 33,57,772/- TOWARDS INTEREST EXPEN DITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFIRMED BY THE LD. CIT(A). 32. THIS GROUND IS IDENTICAL TO GROUND NO. 4 OF I TA NO. 9158/M/2010 FOR A.Y. 1996-97 IN ASSESSEES APPEAL. FOLLOWING TH E SAME REASONING MENTIONED HEREINABOVE AT PARA 3 TO 7, GROUND OF AP PEAL TAKEN FOR A.Y. 2004-05 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 33. THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND OF ITA NO. 9158/M/2010 FOR A.Y. 1 996-97. FOLLOWING THE SAME REASONING, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS DISMISSED AS PER THE DIRECTIONS GIVEN IN PARAS 8 TO 10. ITA NO. 3328/M/2012 A.Y. 2004-05 REVENUES APPE AL 34. THE ONLY GROUND RAISED BY THE REVENUE RELATES T O CHARGEABILITY OF INTEREST U/S. 234A & 234B OF THE ACT. THIS GROUND IS IDENTICAL TO GROUND NO. 1(D) AND 1(E) OF ITA NO. 972/M/2011 FOR A.Y. 1996-97 IN SHRI HITESH S. MEHTA 14 REVENUES APPEAL. FOLLOWING THE SAME REASONING MENT IONED HEREINABOVE AT PARAS 15 & 16, THIS GROUND RAISED BY THE REVENU E IS ALLOWED. 35. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ITA NO. 9160/M/2010 A.Y. 2007-08 ASSESSEES APP EAL 36. THE ASSESSEE HAS RAISED 3 SUBSTANTIVE GROUNDS O F APPEAL AND ONE ADDITIONAL GROUND. AT THE VERY OUTSET, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT UNDER INSTRUCTIONS HE IS NOT PRESSIN G GROUND NO. 1 &2. THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRES SED. 37. GROUND NO. 5 RELATES TO THE DISALLOWANCE OF INT EREST EXPENSES AMOUNTING TO RS14,12,72,594/- TOWARDS INTEREST EXPE NDITURE CLAIMED BY THE ASSESSEE. THE SAID DISALLOWANCE HAS BEEN CONFI RMED BY THE LD. CIT(A). 38. THIS GROUND IS IDENTICAL TO GROUND NO. 4 OF I TA NO. 9158/M/2010 FOR A.Y. 1996-97 IN ASSESSEES APPEAL. FOLLOWING TH E SAME REASONING MENTIONED HEREINABOVE AT PARA 3 TO 7, GROUND OF AP PEAL TAKEN FOR A.Y. 2007-08 IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 39. THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS IDENTICAL TO THE ADDITIONAL GROUND OF ITA NO. 9158/M/2010 FOR A.Y. 1 996-97. FOLLOWING THE SAME REASONING, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS DISMISSED AS PER THE DIRECTIONS GIVEN IN PARAS 8 TO 10. ITA NO. 974/M/2011 A.Y. 2007-08 REVENUES APPEA L 40. THE ONLY GROUND RAISED BY THE REVENUE RELATES T O CHARGEABILITY OF INTEREST U/S. 234A & 234B OF THE ACT. THIS GROUND IS IDENTICAL TO GROUND SHRI HITESH S. MEHTA 15 NO. 1(D) AND 1(E) OF ITA NO. 972/M/2011 FOR A.Y. 1996-97 IN REVENUES APPEAL. FOLLOWING THE SAME REASONING MENT IONED HEREINABOVE AT PARAS 15 & 16, THIS GROUND RAISED BY THE REVENU E IS ALLOWED. 41. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE AND THE APPEAL FILED BY THE RE VENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2013 . !4 / 3( &! 5 6 729.11.2013 3 / > SD/- SD/- (VIJAYPAL RAO ) ( N.K. BILLAIYA ) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 6 DATED 29 /11/2013 . . ./ RJ , SR. PS !4 / ,0 ?!(0 !4 / ,0 ?!(0 !4 / ,0 ?!(0 !4 / ,0 ?!(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. @ ( ) / THE CIT(A)- 4. @ / CIT 5. A> ,0 , , / DR, ITAT, MUMBAI 6. >B C / GUARD FILE. !4 !4 !4 !4 / BY ORDER, -0 ,0 //TRUE COPY// D DD D / E E E E (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI