ASK INVESTMENT MANAGERS P.LTD, V. ASST CIT CIR 6(1),

MA 132/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4330 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 11-06-2015
• Court: TRIBUNAL
• Department Lawyers: GANESH BOSE
• Assessee Lawyers: J EHANGIR D MISTRY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) M.A. NO. 132/MUM/2015 ARISING OUT OF I.T.A. NO. 4816 /MUM/ 2014 (ASSESSMENT YEAR 2009 - 10 ) M.A. NO. 133/MUM/2015 ARISING OUT OF I.T.A. NO. 2394/ MUM/2014 (ASSESSMENT YEAR 2009 - 10) ASK INVESTMENT MANAGERS PVT. LTD. 1 ST FLOOR, BANDBOX HOUSE, 254 - D DR. ANNIE BESANT ROAD MUMBAI - 400 030. VS. ACIT, CIRCLE 6(1) ROOM NO. 506 5 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO .AAFCA2302P ASSESSEE BY SHRI JEHANGIR D. MISTRY DEPARTMENT BY SHRI GANESH BOSE DATE OF HEARING 15.1 . 201 6 DATE OF PRONOUNCEMENT 25 . 5 . 201 6 O R D E R PER B.R. BASKARAN, A M : - BOTH THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE WITH THE PLEA THAT THERE ARE MISTAKES APPARENT FROM RECORD IN THE ORDER DATED 09.01.2015 PASSED BY THE TRIBUNAL IN THE APPEALS REFERRED ABOVE. 2. WE SHALL FIRST TAKE UP THE M.A. NO.133/MUM/2045. WE HEARD THE PARTIES AND PERUSED THE RECOR D. THE FIRST MISTAKE POINTED OUT BY THE ASSESSEE IN PARAGRAPH 3 OF THE PETITION IS THAT THE TRIBUNAL DID NOT PROPERLY CONSIDER THE CONTENTION OF THE ASSESSEE THAT NO NOTICE OF ENHANCEMENT OF INCOME WAS GIVEN TO THE ASSESSEE BY LD CIT(A). HOWEVER WE NOTIC E THAT THE TRIBUNAL HAS NOTED THAT THE PROVISIONS OF SEC. 251(2) MANDATE PROVIDING OF AN OPPORTUNITY TO THE ASK INVESTMENT MANAGERS PVT. LTD. 2 ASSESSEE AND NOT THE NOTICE OF ENHANCEMENT. THE TRIBUNAL NOTICED THAT THE ASSESSEE DID NOT CONTEND THAT IT WAS NOT PROVIDED WITH AN OPPORTUNITY AS MANDATED IN SEC. 251(2) OF THE ACT. ACCORDINGLY IT REJECTED THE PLEA OF THE ASSESSEE. THE ASSESSEE HAS FURNISHED THE ORDER SHEET NOTINGS OF THE PROCEEDINGS BEFORE THE LD CIT(A). THE NOTING MADE ON 6.11.13, WHICH IS PLACED AT PAGE 26 OF THE PAPER BOOK, S HOWS THAT THE LD CIT(A) HAS ASKED THE ASSESSEE AS TO WHY IT SHOULD NOT BE ADDED TO THE INCOME. THIS ORDER SHEET NOTING CLEARLY SHOWS THAT THE ASSESSEE WAS PROVIDED WITH AN OPPORTUNITY IN CONNECTION WITH THE ENHANCEMENT OF INCOME AS CONTEMPLATED U/S 251( 2) OF THE ACT. THUS, WE NOTICE THAT THE TRIBUNAL HAS INTERPRETED THE PROVISIONS OF SEC. 251(2) OF THE ACT AND HAS TAKEN A CONSCIOUS VIEW. THE SAME SHALL NOT FALL WITHIN THE PURVIEW OF MISTAKE APPARENT FROM RECORD. ACCORDINGLY WE REJECT THIS PLEA OF THE ASSESSEE. 3. THE NEXT MISTAKE POINTED OUT IN PARAGRAPH 4 RELATES TO THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF CIT VS. RAI BAHADUR HARDUTROY MOTILAL CHAMARIA (66 ITR 443). THE TRIBUNAL HAS DISCUSSED ABOUT THE SAME IN PARAGRAPH 6 TO 10 OF THE ORDER. ACCORDING TO THE ASSESSEE, THE DECISION RENDERED BY THE TRIBUNAL IS DIRECTLY CONTRARY TO THE DECISION RENDERED BY THE HONBLE SUPREME COURT RENDERED IN THE ABOVE SAID CASE. WE HAVE CAREFULLY GONE THROUGH THE DECISION RENDERED BY THE TRIB UNAL IN PARAGRAPH 6 TO 10 OF THE ORDER. WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED THE ARGUMENTS OF THE ASSESSEE WITH REGARD TO THE DECISION OF HONBLE SUPREME COURT CITED ABOVE. THE TRIBUNAL HAS SPECIFICALLY REJECTED THE PLEA OF THE ASSESSEE THAT THE IN VESTMENT ADVISORY FEES DUE FROM M/S INDIA VALUE INVESTMENT LTD. CONSTITUTE A SEPARATE SOURCE OF INCOME. THE TRIBUNAL HAS SUPPORTED ITS VIEW BY GIVING AN ILLUSTRATION THAT EXPLAINS ONE OF THE STREAMS IN A PARTICULAR SOURCE OF INCOME CANNOT BE CONSIDERED TO BE A SEPARATE SOURCE. ACCORDINGLY, WE ARE OF THE VIEW THAT THE ASK INVESTMENT MANAGERS PVT. LTD. 3 TRIBUNAL HAS ONLY FOLLOWED THE DECISION RENDERED BY HONBLE SUPREME COURT REFERRED ABOVE AND ACCORDINGLY REJECTED THE PLEA OF THE ASSESSEE. SINCE THE TRIBUNAL HAS TAKEN A VIEW ON THE INTERPRETATION OF THE SAID DECISION, WE ARE OF THE VIEW THE SAME CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT FROM RECORD. ACCORDINGLY WE REJECT THIS PLEA OF THE ASSESSEE. 4. IN GROUND NO.5 OF THE PETITION, IT IS STATED THAT THE DATE OF SETTLEMENT WITH M/S INVIL IS REACHED ON 09.04 .2009 IS INCORRECT AS THE SETTLEMENT WAS REACHED ON 23.04.2009 AND IN THIS CONNECTION, THE DOCUMENT AVAILABLE IN PAGE 49 IS REFERRED TO. WE REFERRED TO THE SAID DOCUMENT AND FIND THAT IT IS A LETTER WRITTEN BY THE ASSESSEE TO M/S INVIL, WHEREIN A REFERENC E IS MADE TO AN EMAIL DATED 23 - 04 - 2009. COPY OF SAID EMAIL OR THE DOCUMENT EVIDENCING SETTLEMENT WAS NOT PROVIDED IN THE PAPER BOOK FILED BY THE ASSESSEE. IN OTHER DOCUMENTS, IT IS STATED THAT THE SETTLEMENT HAS BEEN REACHED IN APRIL, 2009. FURTHER, IN THE ABSENCE OF COPY OF E - MAIL OR THE DOCUMENT EVIDENCING SETTLEMENT, WE DO NOT FEEL IT NECESSARY TO RECTIFY THE DATE OF SETTLEMENT AND FURTHER, WE NOTICE THAT, THE WRONG MENTIONING OF DATE, IF ANY, WILL NOT ALTER OR VITIATE THE DECISION RENDERED BY THE TRI BUNAL. ACCORDINGLY, WE REJECT THIS GROUND ALSO. 5. GROUND NO, 6 TO 8 RELATES TO THE OBSERVATION MADE BY THE TRIBUNAL THAT CERTAIN NEW FACTS HAVE BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL AND NOT BEFORE THE LD CIT(A). IT IS STATED THAT THOSE FACTS A RE ALREADY AVAILABLE IN THE RECORD. HOWEVER, A REFERENCE TO PARAGRAPH NO.12 OF THE ORDER WOULD SHOW THAT THE LD D.R HAS CONTENDED THAT THE ASSESSEE HAS FAILED TO INFORM THE LD CIT(A) ABOUT THE SETTLEMENT REACHED ON 09.04.2009 AND ALSO ABOUT THE INCOME OFF ERED IN AY 2010 - 11. THE FOLLOWING OBSERVATIONS MADE BY LD CIT(A) IN PARAGRAPH 11.2 OF HIS ORDER, IN FACT, SUPPORTS THE CONTENTIONS OF THE LD D.R. ASK INVESTMENT MANAGERS PVT. LTD. 4 11.2 THEREFORE, AT THE TIME OF APPELLATE PROCEEDINGS, THE APPELLANT VIDE ORDER SHEET NOTING DATED 06.11.2 003 WAS ASKED TO PROVIDE DETAILS REGARDING THIS INVESTMENT ADVISORY FEES RECEIVABLE, THE COMPLETE BREAK UP AND WHY IT SHOULD NOT BE ADDED TO ITS INCOME. AT THE TIME OF APPELLATE PROCEEDINGS THE APPELLANT STATED THAT THIS AMOUNT PERTAINS FOR AY 2006 - 07 TO 2009 - 10. HOWEVER, THE APPELLANT DID NOT PROVIDE ANY BREAK - UP NOR THE ACCOUNTS FOR THE AY 2006 - 07, 2007 - 08 AND 2008 - 09. IN SPITE OF GIVING HIM REPEATED ADJOURNMENTS FROM 6 TH NOVEMBER, 2013 TO 20 TH FEBRUARY, 2014 THE APPELLANT HAS NOT PROVIDED THE ACCOUNTS INCLUDING NOTES TO ACCOUNTS FOR A.Y 2006 - 07, 2007 - 08 AND 2008 - 09. IT IS SETTLED LAW THAT IF APPELLANT IS MAKING A CLAIM HE HAS TO SUBSTANTIATE IT WITH DOCUMENTARY EVIDENCES OTHERWISE IT IS LIABLE TO BE REJECTED. IN THE INSTANT CASE INSTEAD OF PRODUCING THE DOCUMENTS ASKED FOR THE APPELLANT RAISED THE QUERY ON 20 TH FEB. 2014 THAT HOW THIS INCOME CAN BE INCLUDED AS THIS WAS NOT IN THE GROUNDS OF APPEAL FILED. IN PARAGRAPH 11.6 OF THE ORDER, THE LD CIT(A) HAS STATED THAT EVEN THE ASSESSING OFFICER WAS ALS O COULD NOT FURNISH THE DETAILS. 6. THE SUBMISSION OF THE ASSESSEE IS THAT IT HAS INFORMED THE DETAILS IN THE LETTERS DATED 20 TH DECEMBER, 2013 AND 20 TH FEBRUARY, 2014. BUT THE FACT REMAINS THAT THE LD CIT(A) DID NOT REFER TO THOSE LETTERS IN HIS O RDER. HENCE THE TRIBUNAL HAS MADE THE OBSERVATIONS ON THE BASIS OF CONTENTIONS OF LD D.R AS WELL AS THE OBSERVATIONS MADE BY LD CIT(A) IN HIS ORDER. HENCE WE DO NOT FIND ANY ERROR IN THE ORDER PASSED BY THE TRIBUNAL. IN ANY CASE, WE NOTICE THAT THE TRIB UNAL HAS RESTORED THIS MATTER TO THE FILE OF LD CIT(A) TO EXAMINE THE SAME AFRESH. 7. IN PARAGRAPH 9 OF THE PETITION, IT IS STATED THAT THE TRIBUNAL HAS EXCEEDED ITS JURISDICTION BY DIRECTING THE LD CIT(A) TO EXAMINE THE YEAR OF ASSESSABILITY OF THE INVESTMENT ADVISORY INCOME RECEIVABLE FROM M/S INVIL. THE CONTENTION OF THE ASSESSEE IS THAT THE TRIBUNAL IS EMPOWERED TO DECIDE AS TO WHETHER ANY AMOUNT CAN BE TAXED IN THE YEAR UNDER CONSIDERATION AND, IF YES, THEN HOW MUCH. THE DIRECTION GIVEN TO THE LD CIT(A) TO EXAMINE THE YEAR OF ASSESSABILITY ASK INVESTMENT MANAGERS PVT. LTD. 5 OF THE INCOME FROM INVIL AFRESH, IS CONTRARY TO LAW, AS THE LD CIT(A) CAN ONLY DECIDE FOR THE YEAR UNDER CONSIDERATION. 8. WE HEARD THE PARTIES ON THIS ISSUE. WE NOTICE THAT THE TRIBUNAL HAS EXPRESSED A VIEW IN PARAGRAPH 14 OF THE ORDER THAT THE QUESTIONS OF YEAR OF ACCRUAL AND/OR YEAR OF ASSESSMENT ARE TO BE CONSIDERED AFRESH AT THE END OF THE LD CIT(A) IN THE LIGHT OF NEW FACTS BROUGHT ON RECORD BY THE ASSESSEE. ACCORDINGLY, IN PARAGRAPH 15 OF THE ORDER, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF LD CIT(A) WITH THE DIRECTION TO EXAMINE ABOUT THE ASSESSABILITY OF THE SAME AFRESH, I.E., YEAR OF ACCRUAL AND/OR YEAR OF ASSESSMENT. 9. THE DIRECTION GIVEN TO LD CIT(A) TO DECIDE ABOUT THE YEAR OF ACCRUAL AND/OR YEAR OF ASSESSMENT ITSELF WAS ON THE BACK GROUND THAT THE SETTLEMENT REACHED WITH M/S INVIL PERTAINS TO MORE THAN ONE YEAR AND IN PRACTICAL SITUATION, IT WOULD NOT BE POSSIBLE TO ANYONE TO DETERMINE THE AMOUNT TAXABLE FOR THE YEAR UN DER CONSIDERATION UNLESS THE ISSUE IS EXAMINED AS A WHOLE. WE FURTHER NOTICE THAT THE TRIBUNAL HAS LEFT THE MATTER OPEN TO THE WISDOM OF LD CIT(A). HENCE, WE DO NOT FIND ANY INFIRMITY IN THE DIRECTION GIVEN BY LD CIT(A). 10. IN PARAGRAPH 10 AND 1 1 OF THE MISCELLANEOUS PETITION, IT IS STATED THAT THE TRIBUNAL HAS NOT GIVEN ITS DECISION ON GROUND NO.3 AND GROUND NO.6 URGED BY THE ASSESSEE. A PERUSAL OF THE SAME SHOWS THAT BOTH THE GROUNDS ARE CONTENTIONS OF THE ASSESSEE RELATING TO THE ISSUE THAT W AS RESTORED TO THE FILE OF THE LD CIT(A). SINCE THE MAIN ISSUE IS RESTORED TO THE FILE OF THE LD CIT(A) WITHOUT PUTTING RESTRICTION ON THE ASSESSEES RIGHT, IT IS FREE TO URGE THESE GROUNDS BEFORE LD CIT(A) IN THE SET ASIDE PROCEEDINGS. 11. HENCE WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION NO.133/MUM/2015 FILED BY THE ASSESSEE AND ACCORDINGLY REJECT THE SAME. ASK INVESTMENT MANAGERS PVT. LTD. 6 12. THE ASSESSEE HAS ALSO FILED MISCELLANEOUS APPLICATION NO.132/MUM/2015 AGAINST THE PENALTY APPEAL FILED BY THE ASSESSEE. TH IS APPLICATION IS CONSEQUENTIAL TO THE M.A NO.133/MUM/2015. SINCE WE HAVE REJECTED THE SAME, THIS M.A IS ALSO LIABLE TO REJECTED. 13. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS ARE REJECTED. ORDER HAS BEEN PRONOU NCED IN THE OPEN COURT ON 25 .5 .2016 . SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 25 / 5 /20 1 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. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS