CHOUDHARY GARMENTS, V. ACIT CIR 20(1),

MA 129/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3853 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: misc
• Appeal Filed On: 24-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P SONGATE
• Assessee Lawyers: R R VORA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI `K BENCH BEFORE SHRI D.K.AGARWAL, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER M.A.NO. ARISING OUT OF I.T.A.NOS. A.YRS. 878/MUM/2009 1167 TO 1169/MUM/07 & 1262 TO 1264/MUM/07 2000-01 TO 2003-04 129/MUM/2010 1168/MUM/2007 2001-02 130/MUM/2010 1169/MUM/2007 2001-02 M/S. CHOUDHARY GARMENTS, PLOT NO. B-15, VEERA DESAI ROAD, NEAR MONGINIS, OFF. LINK ROAD, ANDHERI [W], MUMBAI 400 053 PAN NO.AAAFC 1385 L VS. ASST. COMMISSIONER OF I.T., CIRCLE 20(1), MUMBAI (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI R.R.VORA. RESPONDENT BY : SHRI P. SONGATE. O R D E R PER T.R.SOOD, AM: THROUGH THESE MISCELLANEOUS APPLICATIONS, ASSESSEE HAS POINTED OUT AN ERROR IN THE ORDER OF THE TRIBUNAL DATED 26 TH NOVEMBER, 2009 IN I.T.A.NOS.1167 TO 1169/MUM/2007 & 1262 TO 1264/MUM/ 2007. 2. THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT ONE OF THE COMMON ISSUES RAISED BY THE DEPARTMENT WAS REGARDIN G TREATMENT OF INTEREST FOR THE PURPOSE OF DEDUCTION U/S.80HHC. TH E SAME HAS BEEN ADJUDICATED VIDE PARAS 12 TO 15 OF THE TRIBUNALS O RDER. HE SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE ON THE PREM ISES THAT INTEREST INCOME HAS BEEN ASSESSED AS INCOME FROM OTHER SOURC ES AND, 2 THEREFORE, FOLLOWED THE DECISION OF THE HON'BLE DEL HI HIGH COURT IN THE CASE OF CIT VS. DELHI BRASS METAL WORKS LTD. [313 I TR 352]. HOWEVER, IN ALL THESE CASES THE INTEREST INCOME HAD ALREADY BEEN HELD TO BE ASSESSABLE AS BUSINESS INCOME BY THE HON'BLE HIGH C OURT IN THE EARLIER ROUNDS OF APPEAL AND IN THIS REGARD HE REFERRED TO THE COPY OF THE JUDGMENT OF THE HIGH COURT WHICH WAS ALSO FILED IN THE ORIGINAL PAPER BOOK. ACCORDING TO HIM, THEREFORE, NOW A DIFFERENT VIEW COULD NOT HAVE BEEN TAKEN AND ACCORDINGLY AN ERROR HAS CREPT INTO THE ORDERS OF THE TRIBUNAL AND THEREFORE THE SAME REQUIRES RECTIFICAT ION. 3. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDE RS OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT THE HON'BLE HIGH COURT IN THE CASE OF THE ASSESSEE IN THE EARLIER ROUND HAD ALREADY HELD THAT INTEREST INCOME WAS ASSESSABL E UNDER THE HEAD INCOME FROM BUSINESS AND, THEREFORE, CLEARLY AN E RROR HAS BEEN CREPT INTO THE ORDERS OF THE TRIBUNAL BECAUSE THE WHOLE I SSUE HAS BEEN DECIDED ON THE BASIS THAT INTEREST INCOME WAS ASSES SED AS INCOME FROM OTHER SOURCES. THIS ISSUE WAS RAISED BEFORE THE TRI BUNAL BY THE REVENUE AND, THEREFORE, WE RECALL OUR COMMON ORDER IN I.T.A.NOS.1167 TO 1169/M/2007 AND 1263 TO 1264/MUM/2007, ONLY FOR THE PURPOSE OF DECIDING THE COMMON GROUND REGARDING TREATMENT OF I NTEREST FOR THE PURPOSE OF DEDUCTION U/S.80HHC. 3 5. THE REGISTRY IS DIRECTED TO FIX THE HEARING OF T HE APPEALS TO DECIDE THE ABOVE ISSUE ON 6-10-2010 AND ASSESSEE SH OULD TAKE NOTICE FROM THIS ORDER ITSELF AS NO SEPARATE NOTICE WILL B E ISSUED. 6. IN THE RESULT, MISCELLANEOUS APPLICATIONS ARE AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JULY, 2010. SD/- SD/- (D.K.AGARWAL) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 23 RD JULY, 2010. P/-*