DCIT CEN CIR 6, V. EVERSMILE CONSTRUCTION CO.LTD,

MA 113/MUM/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1905 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 15-11-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 23-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Section: 153A; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIVEK VARMA, JM MA NOS. 113, 114 & 115/MUM/2012 (ARISING OUT OF ITA NOS. 4240, 4242 & 4243/MUM/2010 ) ( / ASSESSMENT YEARS: 2003-04, 2005-06 & 2006-07) DY. CIT, CIRCLE-6, ROOM NO.901, 9 TH FLOOR, OLD CGO BLDG., PRATISHTHA BHAVAN, MUMBAI-400 020 / VS. EVERSMILE CONSTRUCTION CO. PVT. LTD. CONWOOD HOUSE, YASHODHAM, GEN. A. K. VAIDYA MARG, GOREGAON (E), MUMBAI-400 063 ./ ./PAN/GIR NO. AAACE 0875 E APPLICANT : RESPONDENT APPLICANT BY : SHRI R. K. SAHU RESPONDENT BY : MRS. AARTI VISSANJI ! ' # $ % & / DATE OF HEARING : 28.02.2014 '() $ % & / DATE OF PRONOUNCEMENT : 04.04.2014 * / O R D E R PER SANJAY ARORA, A. M.: THESE ARE A SET OF THREE MISCELLANEOUS APPLICATIONS BY THE REVENUE IN RESPECT OF THE DISPOSAL OF ITS APPEALS BY THE TRIBUNAL U/S. 25 4(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) VIDE ITS COMBINED ORDER DATED 30. 08.2011 FOR THE RELEVANT YEARS. 2. THE RECTIFICATION PETITIONS RAISING COMMON ISSUE /S, WERE HEARD TOGETHER, AND ARE BEING DISPOSED BY A COMMON, CONSOLIDATED ORDER, EVE N AS WERE THE CORRESPONDING APPEALS. WE SHALL PROCEED GROUND-WISE. 2 MA NOS.113, 114 & 115/M/12 (A.YS. 03-04, 05-06 & 06-07) DY. CIT VS. EVERSMILE CONSTRUCTION CO. PVT. LTD . 3. THE FIRST AND THE PRINCIPAL OBJECTION RAISED BY THE REVENUE IS THAT THE TRIBUNAL, IN ALLOWING DEDUCTION IN RESPECT OF INTEREST WHICH WAS NOT CLAIMED BY THE ASSESSEE PER ITS RETURN OF INCOME; IN FACT, DISALLOWED PER THE COMPU TATION AND ONLY MENTIONED IN THE NOTES TO THE COMPUTATION/S OF INCOME, HAS COMMITTED A MIS TAKE IN VIEW OF THE DECISIONS BY THE APEX COURT IN GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC) AS ALSO IN CIT VS. SUN ENGINEERING WORKS (P.) LTD . [1992] 198 ITR 297 (SC). SUITABLE DIRECTIONS MODI FYING THE IMPUGNED ORDER, IT IS PRAYED, BE ISSUED. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. 4.1 THE REVENUES GRIEVANCE IS THAT NO CLAIM STOOD MADE BY THE ASSESSEE PER ITS RETURNS OF INCOME. SECTION 153A PROCEEDINGS ARE FOR THE BENEFIT OF THE REVENUE, AS ARE SECTION 147 PROCEEDINGS, ALLUDING FOR THE PURPOSE T O THE DECISION BY THE APEX COURT IN THE CASE OF SUN ENGINEERING WORKS (P.) LTD . (SUPRA). THE SAME BEING QUA A PROVISION WHICH IS PARI MATERIA IS, THUS, APPLICABLE. A SEC.153A ASSESSMENT COULD NOT THEREFORE BE MADE AT AN INCOME BELOW THAT ORIGINALLY ASSESSED, PARTICULA RLY WITH REGARD TO A CLAIM/S NOT MADE PER THE ORIGINAL RETURN/S. 4.2 THE TRIBUNAL HAS DECIDED THE APPEALS FOR THE RE LEVANT YEARS VIDE PARA 4 OF ITS ORDER, WHICH READS AS UNDER: 4. INSOFAR AS THE OTHER THREE YEARS IN THIS BATCH OF APPEALS ARE CONCERNED, THE ONLY DISTINGUISHING FEATURE IS THAT ORIGINAL ASSESSMENTS WERE NOT MADE U/S.143(3). WHILE FILING THE RETURNS IN RE SPONSE TO NOTICE U/S.153A, THE ASSESSEE IN THE SAME MANNER INITIALLY MADE THE DISALLOWANCE AND THROUGH NOTES TO THE COMPUTATION OF INCOME, CLA IMED DEDUCTION FOR THE INTEREST. THE ASSESSING OFFICER DID NOT ALLOW SUCH DEDUCTION FOR INTEREST, WHICH THE LEARNED CIT(A) DID TO THE EXTENT MENTIONE D IN THE IMPUGNED ORDERS. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN OTHER YEARS VIZ. 2003-2004, 2005-2006 AND 2006-2007 REMAIN THE SAME AS THEY ARE IN ASSESSMENT YEAR 2001-2002, 2002-2003 AND 2004-2005. THIS DISTINGUISHING FEATURE, AS NOTED ABOVE, HAS NO BEARING ON OUR DECI SION ABOUT THE DEDUCTIBILITY OF INTEREST AS PER THE REMAND REPORT OF THE ASSESSING OFFICER. FOLLOWING THE VIEW TAKEN BY US BY WAY OF DETAILED O RDER IN APPEAL FOR ASSESSMENT YEAR 2001-2002, WE UPHOLD THE IMPUGNED O RDERS. 3 MA NOS.113, 114 & 115/M/12 (A.YS. 03-04, 05-06 & 06-07) DY. CIT VS. EVERSMILE CONSTRUCTION CO. PVT. LTD . IT IS CLEAR, THEREFORE, THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION IN THE MATTER BASED ON THE REMAND REPORT BY THE ASSESSING OFFICER (A.O.). FURTHER, THOUGH THE ASSESSMENTS FOR THESE YEARS WERE NOT ORIGINALLY MAD E U/S.143(3), AS WAS THE CASE FOR THE OTHER THREE YEARS ALSO DECIDED BY THE TRIBUNAL, I.E ., A.YS. 2001-02, 2002-03 & 2004-05, THE TRIBUNAL DID NOT CONSIDER THE SAME AS MATERIAL, AND DECIDED THE ISSUE AT HAND FOLLOWING ITS EARLIER ORDER FOR A.Y. 2001-02. WHETHER THE SAM E IS CONSISTENT OR NOT SO WITH THE DECISION BY THE HIGHER COURTS; THE REVENUE CLAIMING IT AS NOT SO, COULD ONLY BE DECIDED IN THE REVIEW PROCEEDINGS, WHICH COULD ONLY BE BEFORE A HIGHER APPELLATE FORUM AND FALL OUTSIDE THE AMBIT OF SECTION 254(2) OR THE RECTIFIC ATION PROCEEDINGS BEFORE THE TRIBUNAL. WE ACCORDINGLY FIND NO MERIT IN THE REVENUES OBJEC TION/S. 5. THE SECOND OBJECTION RAISED BY THE REVENUE IS WI TH REGARD TO THE ENTITLEMENT OF THE ASSESSEE TO SET OFF SHORT TERM CAPITAL GAIN (LOSS) AGAINST OTHER INCOME PER ITS RETURN/S U/S.153A IN-AS-MUCH AS THE SAME WAS NOT A SUBJECT M ATTER OF ASSESSEES RETURN/S U/S.139(1). 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. WE FIND NO REFERENCE IN THE IMPUGNED ORDER OR A DIRECTION IN I TS RESPECT TO THAT EFFECT. THE SAME, HOWEVER, FALLS WITHIN THE AMBIT OF GROUND NO. 1 FOR ALL THE YEARS, WHICH READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSEE ON TH E INCOME DISCLOSED BY HIM IN THE RETURN OF INCOME FILED U/S.153A IGNORING THE FACT THAT THE ASSESSING OFFICER HAS MERELY ASSESSED THE TOTAL INC OME AT THE RETURNED INCOME. THE GROUND/S BEING THUS WORDED IN GENERAL TERMS, WH ETHER THE SAID ASPECT/ISSUE WAS, THEREFORE, SPECIFICALLY RAISED BEFORE THE TRIB UNAL DURING HEARING - THERE BEING IN FACT NO AVERMENT TO THAT EFFECT IN THE PETITIONS - WOULD NEED TO BE ASCERTAINED. TOWARD THE SAME, WE HAVE GONE THROUGH THE ORDERS BY THE FIRST APPELLATE AUTHORITY FOR THE RELEVANT YEARS AS WELL AS THE GROUND/S ASSUMED BEFORE US. WE FIND NO REFERENCE TO THE SAID GROUND OR ASPECT IN ANY OF THE APPEALS BY THE ASSESSEE BEF ORE THE FIRST APPELLATE AUTHORITY. 4 MA NOS.113, 114 & 115/M/12 (A.YS. 03-04, 05-06 & 06-07) DY. CIT VS. EVERSMILE CONSTRUCTION CO. PVT. LTD . ACCORDINGLY, THE SUBJECT MATTER OF THE REVENUES GR IEVANCE DOES NOT ARISE EITHER OUT OF THE ORDER/S BY THE FIRST APPELLATE AUTHORITY OR BY THE TRIBUNAL. THE SAME IS, THEREFORE, NOT MAINTAINABLE IN THE PRESENT PROCEEDINGS. 7. IN THE RESULT, THE REVENUES MISCELLANEOUS APPLI CATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 04, 201 4 SD/- SD/- (VIVEK VARMA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ! +# MUMBAI; ,' DATED : 04.04.2014 .'../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. - . / THE APPLICANT 2. /0. / THE RESPONDENT 3. ! 1% ( - ) / THE CIT(A) 4. ! 1% / CIT - CONCERNED 5. 4 5 /%'67 , - & 67) , ! +# / DR, ITAT, MUMBAI 6. 5 8 9 # / GUARD FILE !' ) / BY ORDER, */)+ (DY./ASSTT. REGISTRAR) , ! +# / ITAT, MUMBAI