DCIT CC 23, MUMBAI V. RASILA S. MEHTA, MUMBAI

ITA 975/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71934 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-12-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.416/M/2011 (AY: 2004 - 2005) ./I.T.A. NO.418 /M/2011 (AY: 2005 - 2006 ) SMT. RASILA S. MEHTA, 32, MADHULI, DR. A.B. R OAD, WORLI, MUMBAI 400 018. / VS. THE DCIT, CC - 23, R.NO.409, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : ABNPM 8 2 19 R ( / APPELLANT) .. ( / RESPONDENT ) ./I.T.A. NO.975/M/2011 (AY: 2004 - 2005) ./I.T.A. NO.976 /M/2011 (AY: 2005 - 2006 ) THE DCIT, CC - 23, MUMBAI 400 020. / VS. SMT. RASILA S. MEHTA, 32, MADHULI, DR. A.B. R OAD, WORLI, MUMBAI 400 018. ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI DHARMESH SHAH / REVENUE BY : SHRI DR. P. DANIEL, DR / DATE OF HEARING : 16.12 .2013 / DATE OF PRONOUNCEMENT : 16 .12.2013 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE FOUR APPEALS U NDER CONSIDERATION. OUT OF THE FOUR APPEALS , TWO APPEALS ARE FILED BY THE ASSESSEE AND TWO APPEALS ARE FILED BY THE REVENUE AGAINST THE SEPARATE ORDERS OF CIT (A) - 40, MUMBAI COMMONLY DATED 22.11.2010. SINCE, THE COMMON ISSUES ARE INVOLVED IN ALL THESE FOUR APPEALS, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDIC ATION IS GIVEN IN THE SUCCEEDING PARAGRAPHS. 2. FIRSTLY WE SHALL TAKE UP THE TWO APPEALS RAISED BY THE ASSESSEE VIDE I.T.A. NO.416/M/2011 (AY: 2004 - 2005) AND I.T.A. NO.41 8 /M/2011 (AY: 2005 - 2006). 2 SINCE, THE IDENTICAL GROUNDS ARE RAISED IN BOTH THE APPEALS, THE GROUNDS RAISED WITH REGARD TO I.T.A. NO.416/M/2011 (AY: 2004 - 2005) WHICH READ AS UNDER: 1 THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/S 250 OF THE ACT 2. THE LD CIT ( A) OUGHT TO HAVE APPRECIATED THAT THE NOTICES ISSUED BY THE AO ARE INVALID AND HENCE THE ASSESSMENT ORDER U/S 143(3) OF THE ACT WAS ALSO VOID AB INITIO. 3. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM ATTACHED ASSETS CAN BE ASSESSED IN THE HANDS OF THE APPELLANT. 4. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS. 95,30,502/ - TOWARDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 3. AT THE OUTSET, REFERRING TO THE GRO UNDS AND THE ADDITIONAL GROUNDS RAISED IN ALL THE APPEALS, SHRI DHARMESH SHAH, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT ALL THE GROUNDS AS WELL AS THE ADDITIONAL GROUNDS RAISED IN THE 4 APPEALS B Y A S S E S S E E A N D R E V E N U E UNDER CONSIDERATION ARE IDENTICAL TO THE ONES ADJUDICATED BY THE TRIBUNAL IN THE CASE OF M/S. GROWMORE EXPORTS LTD VS. DCIT VIDE ITS ORDER DATED 20.11.2013, WHERE IN ONE OF US (AM) IS A PARTY. BRINGING OUR ATTENTION TO PAGES 19 TO 24 OF THE PAPER BOOK, LD COUNSEL DEMONSTRATED THE SIMILARITY OF THE GR OUNDS. 4. ON THE OTHER HAND, LD DR DUTIFULLY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDER OF THE TRIBUNAL DATED 20.11.2013 (SUPRA). ON PERUS AL OF THE SAID TRIBUNALS ORDER (SU PRA), WE FIND THAT THE ALL THE GROUNDS RAISED IN THE INSTANT APPEALS ARE IDENTICAL TO THAT OF THE GROUNDS ADJUDICATED BY THE TRIBUNAL AND WE ARE OF THE OPINION THAT THESE GROUNDS SHOULD BE SET ASIDE WITH IDENTICAL DIRECTI ONS. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE REPRODUCE THE RELEVANT PARAS 4 - 10 AND 16 - 17 WHICH READ AS UNDER: 4. THERE ARE 11 APPEALS INVOLVING THIS ASSESSEE. AMONG 11 APPEALS, ASSESSEES APPEALS ARE 7 AND REVENUE FILED 4 APPEALS. WE SHALL FIRST TAKE UP THE ASSESSEES APPEALS. TO START WITH, SIX APPEALS ( I.T.A. NOS.4015 TO 4020/M/2011) ARE BUNCHED HERE AND THE APPEAL ITA NO. 8478/M/2010 FOR THE AY 2007 - 2008 IS SEPARATELY ADJUDICATED, CONSIDERING THE ADDITIONAL GROUND. THESE 6 APPEALS ARE FILED BY THE ASSESSEE ON 16.5.2011 AGAINST THE SEPARATE ORDERS OF THE CIT (A) - 40, MUMBAI COMMONLY DATED 28.02.2011. SINCE, THE GROUNDS RAISED BY THE ASSESSEE IN ALL THESE 6 APPEALS ARE IDENTICAL AND THE ONLY DIFFERENCE IS IN FIGURES, THEREFORE, THE ADJUDICATION G IVEN FOR THE AY 1995 - 96 APPLIES TO ALL THE SIX APPEALS. HENCE, WE SHALL TAKE UP THE GROUNDS RAISED WITH REGARD TO THE AY 1995 - 1996 WHICH READ AS UNDER: 3 1. THE LD CIT (A), HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/S 250 OF THE ACT. 2. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM ATTACHED ASSETS CAN BE ASSESSED IN HANDS OF THE APPELL ANT. 4. THE LD CIT (A) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILITY AMOUNTING TO RS. 2,50,18,363/ - , TOWARDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 5. BEFORE US, AT THE OUTSET, SHRI DHARMESH SHAH, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT GROUNDS NO.1, 2 & 3 ARE NOT PRESSED. THEREFORE, AFTER HEARING THE LD DR IN THIS REGARD, THE SAID GROUNDS NO. 1, 2 AND 3 IN THE APPEAL ARE DISMISSED AS NOT PRESSED. 6. REFERRING TO GROUND NO.4 LD COUNSEL MENTIONED THAT THE SAID GROUND RELATES TO DISALLOWANCE OF INTEREST EXPENSES TO THE TUNE OF RS. 2,50,18,363/ - . BRIEFLY STATED RELEVANT FACTS IN THIS REGARD ARE THAT THE ASSESSEE HAD BORROWED MONEY FROM FAMILY BROKERAGE FIRMS FOR MAKING INVESTMENT IN SHARES AND SECURITIES PRIOR TO 8.6.1992. THE ASSESSEE HAD CLAIMED THE DEDUCTION ON ACCOUNT OF INTEREST PAYABLE TO THESE CREDITORS. ACCORDINGLY, THE INTEREST OF RS. 2,50,18,363/ - WAS SHOWN PAYABLE TO THESE BROKERAGE FIRMS FOR THE YEAR UNDER CONSIDERATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE INTEREST LIABILITY SHOULD NOT BE DISALLOWED. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE AO REJECTED THE CLAIM AND PROCEEDED TO DISALLOW THE INTEREST PAYABLE ON LOANS, WHICH WAS CONFIRMED BY THE LE ARNED CIT(A) BY OBSERVING THAT ON IDENTICAL CIRCUMSTANCES IN THE CASE OF SHRI HITESH MEHTA, BROTHER OF LATE SHRI HARSHAD MEHTA , SAME ISSUE WAS DECIDED AGAINST THE ASSESSEE. FOLLOWING THE FINDINGS IN THE ORDER PASSED IN THE CASE OF SHRI HITESH MEHTA FOR A.Y . 2005 - 06 THE CLAIM OF INTEREST EXPENDITURE WAS NOT ACCEPTED BY THE LEARNED CIT (A). FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 7. AT THE TIME OF HEARING THE LEARNED COUNSEL PLACED BEFORE US COPY OF THE ORDER PASSED BY ITAT IN THE CASE OF SHRI H ITESH MEHTA FOR ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 (ITA NO. 7726 & 7727/MUM/2010 DATED 26.04.2013) TO SUBMIT THAT IDENTICAL ISSUE WAS SET ASIDE TO THE FILE OF THE CIT(A) TO ADJUDICATE AFRESH. HE HAS ALSO PLACED BEFORE US A COPY OF THE ORDER PASSED BY ITA T A BENCH IN THE CASE OF M/S. AATUR HOLDINGS P. LTD. (ITA NO. 5481/ MUM/2011 DATED 07.08.2013) TO SUBMIT THAT IN THE CASE OF ANOTHER GROUP CONCERN, UNDER IDENTICAL CIRCUMSTANCES, THE ISSUE WAS SET ASIDE TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. 8. THE LEARNED D.R. ALSO ADMITTED THAT THE ISSUE INVOLVED IN THE AFORECITED ORDERS OF THE ITAT IS IDENTICAL. 9. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ISSUE TO THE FILE OF THE LEARNED CIT (A), WHO IS DIRECTED TO ADJUDICATE THE MATTER AFRESH IN ACCORDANCE WITH LAW AND IN THE LINES INDICATED IN THE AFOREMENTIONED ORDERS. ASSESSEE SHALL BE GRA NTED A REASONABLE OPPORTUNITY OF BEING HEARD. 10. IN THE RESULT, ALL THE SIX APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 16. IT DESERVES TO BE NOTICED THAT THE ASSESSEE FILED ADDITIONAL GROUND ALONGWITH LETTER DATED 31 ST OCTOBER, 2 013 WHEREIN IT WAS CONTENDED THAT THE INCOME ASSESSED BY THE AO OUGHT TO HAVE BEEN TAXED IN THE HANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE HANDS OF THE ASSESSEE. HOWEVER, AT THE TIME OF HEARING THE LEARNED COUNSEL ADMITTED THAT THIS ADDITIONAL GROUND WA S WRONGLY RAISED AND IT HAS NO SUBSTANCE. UNDER THESE CIRCUMSTANCES WE REJECT THE ADDITIONAL GROUND . 4 17. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 6. CONSIDERING THE ABOVE SETTLED POSITION OF THE ISSUES, WE ARE OF THE OPINION THAT THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE REMITTED BACK TO THE FILES OF THE CIT (A) WITH IDENTICAL DIRECTIONS TO DECIDE THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE G ROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. AS WELL, REGARDING THE ADDITIONAL GROUND, CONSIDERING THE ADMITTED POSITION OF THE LD COUNSEL AS THE SAME WAS WRONGLY RAISED AND IT HAS NO SUBSTANCE, WE REJECT THE ADDITIONAL GROUND. 7. I N THE RESULT, TWO APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES . ./I.T.A. NO.975/M/2011 (AY: 2004 - 2005) (BY REVENUE) ./I.T.A. NO.976/M/2011 (AY: 2005 - 2006) (BY REVENUE) 8. THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST THE DIFFERENT ORDER OF THE CIT (A) - 40, MUMBAI DATED 22.11.2010 FOR THE AYS 2004 - 05 AND 2005 - 06. SINCE, THE ISSUES RAISED IN THESE T W O APPEALS ARE EXACTLY IDENTICAL, THEREFORE, WE SHALL TAKE UP THE GROUNDS RAISED BY THE REVENUE FOR THE AY 2004 - 05 , WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) FAILED TO APPRECIATE THAT LEGAL SANCTITY OF LAW, THE INTEREST CHARGEABLE UNDER SECTION 234A, 234B AND 234C IS N OT ONLY CONSEQUENTIAL BUT IS MANDATORY IN NATURE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) FAILED TO APPRECIATE THAT THE SPECIAL COURT ACT 1992 HAS NOT RULED OUT THE PROVISIONS OF SECTION 234A, 234B AND 234C BEING NOT AP PLICABLE TO THE NOTIFIED PERSONS OR THEY ARE EXEMPT FROM THE LIABILITIES OF PAYMENT ON INTEREST UNDER THESE SECTION OF INCOME TAX ACT, 1961. 9. THE ABOVE GROUNDS RAISED BY THE REVENUE ARE RELATING TO THE SOLITARY LEGAL ISSUE OF CHARGEABILITY OF INTEREST U/S 234A, 234B AND 234C OF THE INCOME TAX ACT, 1961 AND THE APPLICABILITY OF THE SAID PROVISIONS TO THE NOTIFIED PERSONS. REFERRING TO THE ABOVE MENTIONED GROUNDS, LD COUNSEL MENTIONED THAT THE IDENTICAL ISSUES WERE CAME UP FOR ADJUDICATING BEFOR E THE TRIBUNAL IN THE CASE OF M/S. GROWMORE EXPORTS LTD (SUPRA), WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 20.11.2013 (SUPRA) HAS SET ASIDE THE GROUNDS AND REMANDED THE MATTER TO THE FILES OF CIT (A) CONSIDERING THE CONSEQUENTIAL NATURE OF THE SE ISSUES. I N THIS REGARD HE 5 READ OUT THE RELEVANT PARA S 18 AND 19 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) WHICH READ AS UNDER: 18. THESE FOUR APPEALS ARE FILED BY THE REVENUE AGAINST THE DIFFERENT ORDERS OF THE CIT (A) - 40, MUMBAI FOR THE AYS 1996 - 97, 1997 - 98, 1999 - 2000 AND 2007 - 2008. SINCE, THE ISSUES RAISED IN THESE FOUR APPEALS ARE EXACTLY IDENTICAL, THEREFORE, WE SHALL TAKE UP THE GROUNDS RAISED BY THE REVENUE FOR THE AY 1997 - 1998, WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN HOLDING THAT THE ASSESSEE BEING A NOTIFIED PERSON UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992 IS NOT LIABLE TO PAY INTERE ST U /S 234A, 234B AND 234C OF THE IT ACT, 1961, IGNORING THE LEGAL SANCTITY OF LAW THAT THE INTEREST CHARGEABLE UNDER THESE SECTIONS IS NOT ONLY CONSEQUENTIAL BUT IS MANDATORY IN NATURE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) WAS ERRED IN HOLDING THAT INTEREST U/S 234A, 234B AND 234C OF THE IT ACT, 1961 IS NOT CHARGEABLE IN THE ASSESSEES CASE BEING NOTIFIED PERSON UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992 WITHOUT AP PRECIATING THAT THE SAID ACT DOES NOT EXEMPT THE NOTIFIED PERSONS FROM THE LIABILITY OF PAYMENT OF INTEREST UNDER THESE SECTIONS OF INCOME TAX ACT, 1961. 19. THE ABOVE GROUNDS RAISED BY THE REVENUE ARE RELATING TO THE SOLITARY LEGAL ISSUE OF CHARGEABILI TY OF INTEREST U/S 234A, 234B AND 234C OF THE INCOME TAX ACT, 1961 AND THE APPLICABILITY OF THE SAID PROVISIONS TO THE NOTIFIED PERSONS. WHILE ADJUDICATING THE ASSESSEES APPEALS, IN THE ABOVE PARAGRAPHS OF THIS ORDER, WE HAVE SET ASIDE THE ISSUE RELATING TO THE DEDUCTION OF INTEREST EXPENDITURE , TO THE FILES OF THE CIT (A) AND DIRECTED THE CIT (A) TO ADJUDICATE THE MATTER AFRESH. IN VIEW OF THE DIRECTIONS GIVEN IN THE ASSESSEES APPEALS, THE LIABILITY OF THE ASSESSEES U/S 234A, 234B AND 234C SQUARELY DEP ENDS UPON THE PROPOSED ADJUDICATION OF THE CIT (A) IN THE SET ASIDE PROCEEDINGS. THEREFORE, CONSIDERING THE PREMATURE NATURE OF THE GROUNDS, WE ARE OF THE CONSIDERED OPINION THAT ALL THE GROUNDS RAISED BY THE REVENUE IN FOUR APPEALS ARE SET ASIDE. 20. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 10. FROM THE ABOVE, WE ARE OF THE OPINION THAT AS THE MAIN ISSUE OF DEDUCTION OF INTEREST EXPENDITURE WAS REMANDED TO THE FILES OF THE CIT (A) TO ADJUDICATE TH E MATTER AFRESH AND THE CONSIDERING THE CONSEQUENTIAL NATURE OF THE ISSUES INVOLVED IN THE GROU NDS RAISED BY THE REVENUE, WE SET ASIDE THE GROUNDS NO.1 AND 2 AND ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, TWO APPEALS OF THE REVENUE ARE ALLOWED FO R STATISTICAL PURPOSES ORDER P RONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2013. SD / - S D / - (SANJAY GARG) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 6 .12 .2013 . . ./ OKK , SR. PS 6 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI