PIEM HOTELS LTD., V. ADDL. CIT 3(2),

MA 15/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4562 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 12-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR A K MAYANK
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI , , BEFORE SHRI D KARUNAKAR RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER MA NO. : 15 /MUM/20 1 6 ARISING OUT OF ITA NO. 978 /MUM/201 4 , AY 20 1 0 - 1 1 , PIEM HOTELS LTD. , TAJ PRESIDENT, 90, CUFFE PARADE, COLABA, MUMBAI - 400 005 PAN : A AA CP 8376 M VS A DDL. CIT - 3 ( 2 ) , AAYAKAR BHAVAN, M K ROAD, M UMBAI - 400 020 ( APPLICANT ) (RESPONDENT) APPLICANT BY : SHRI DHARMESH SHAH RESPONDENT BY : DR. A K MAYANK /DATE OF HEARING : 15 - 0 4 - 20 1 6 / DATE OF PRONOUNCEMENT : 01 - 0 7 - 201 6 ORDER : . . : PER AMIT SHUKLA , JM : IN THE AFORESAID MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN RELATION TO THE ITA NO.918/MUM/2014 AGAINST ORDER DATED 30.0 8.2015 , T HE ASSESSEE HAS POINTED OUT THAT, THE TRIBUNAL WHILE DECIDING THE ISSUE OF DISALLOWANCE UNDER SECTION 14A R.W. RULE 8D HAS SET ASIDE THE MATTER TO THE FILE OF THE AO , TO DECIDE THE ISSUE AFRESH , FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL. HOWEVER , IN THE ASSESSMENT YEAR 2008 - 09, THE TRIBUNAL HAS DELETED THE SAID DISALLOWANCE AND IT WAS ONLY IN AY 2009 - 10 THE TRIBUNAL HAS RESTORED BACK THE MATTER TO THE FILE OF THE LD. CIT(A). THUS, THE CONCLUSION OF THE TRIBUNAL, IS NOT CORRECT IN SETTING ASIDE TH E MATTER TO THE AO. FURTHER, THE TRIBUNAL HAS NOT ADJUDICATED UPON , PIEM HOTELS LTD. MA NO. 15 /MUM/2016 2 THE ISSUE RELA TING TO EXCLUSION OF STRATEGIC INVESTMENT WHILE COMPUTING THE DISALLOWANCE UNDER SECTION 14A. THEREFORE, ALL THESE FACTORS CONSTITUTE MISTAKE APPARENT FROM RECORD. 2. BEFO RE US, THE LD. COUNSEL REITERATED THE SAME AND SUBMITTED THAT TRIBUNAL HAS WRONGLY NOTED THAT IN AY 2008 - 09 THE ISSUE WAS SET ASIDE TO AO, WHEREAS, IN THAT YEAR THE DISALLOWAN CE UNDER SECTION 14A WAS DELETED. IT WAS ONLY IN AY 2009 - 10 THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE CIT(A), THEREFORE, THIS DISALLOWANCE SHOULD BE DELETE D ON MERITS. THAT APART, THE ISSUE OF STRATEGIC INVESTMENT HAS NOT BEEN DISCUSSED BY THE TRIBUNAL. 3. THE LD. DR ON THE OTHER HAND, SUBMITTED THAT CONSCIOUS AND CONSIDERED DECISION HAS BEEN TAKEN BY THE TRIBUNAL WHILE SETTING ASIDE THE ISSUE TO THE FILE OF THE AO AND THERE IS CLEAR CUT DIRECTION TO THE AO , TO DECIDED THE ISSUE AFRESH AND IN ACCORDANCE WITH THE LAW , THEREFORE, NO INTERFERENCE IS CALLED FOR. 4. AFTER CONSIDERING THE RIVAL SUBM ISSIONS AND ON THE PERUSAL OF THE IMPUGNED ISSUE OF DISALLOWANCE UNDER SECTION 14A, WE FIND THAT THE TRIBUNAL HAS TAKEN NOTE OF THE DIVIDEND INCOME EARNED BY THE ASSES S EE AT RS.1,63,06,763/ - AND ALSO THE EXPENDITURE SUO MOTTO DISALLOWED BY THE ASSESSEE AT R S.34,349/ - ON ESTIMATE BASIS FOR THE PURPOSE OF DISALLOWANCE, WHICH THE AO HAS REJECTED . THE AO HAS MADE THE DISALLOWANCE UNDER SECTION 14A IN ACCORDANCE WITH RULE 8D WHICH WORKED OUT TO RS.31,41,129/ - . AT THE APPELLATE STAGE, ASSESSEE HAD SUBMITTED THAT I T HAD FURTHER OFFERED AN AMOUNT IN REVISED COMPUTATION WHEREBY DISALLOWANCE OF RS.5,71,600/ - WAS OFFERED AND THEREAFTER THE AO HAS NOT RECORDED HIS SATISFACTION. HOWEVER, THE LD. CIT(A) REJECTED THE ASSESSEES CONTENTION AND CONFIRMED THE DISALLOWANCE MADE BY THE AO . B EFORE THE TRIBUNAL , IT WAS SUBMITTED BY THE ASSESSEE THAT THE ISSUE OF DISALLOWANCE UNDER SECTION 14A IS COVERED BY THE ORDER OF THE TRIBUNAL FOR IN THE AYS 2008 - 09 AND 2009 - 10 . I N PARA 4 OF THE ORDER, THE TRIBUNAL HAS NOTED THAT IN THESE YEAR S THE MATTER HAS , PIEM HOTELS LTD. MA NO. 15 /MUM/2016 3 BEEN SET ASIDE TO THE FILE OF THE AO, WHEREAS, IN AY 2008 - 09, THE ISSUE OF DISALLOWANCE WAS DELETED AND IN THE AY 2009 - 10 THE MATTER WAS SET ASIDE TO THE FILE OF THE CIT(A). THOUGH, THERE IS A ERROR WHILE NOTING DOWN THAT IN THE AY 2008 - 0 9, THE ISSUE OF DISALLOWANCE HAS BEEN SET ASIDE TO AO, HOWEVER IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR THE TRIBUNAL HAS SET ASIDE THE IMPUGNED ISSUE OF DISALLOWANCE UNDER SECTION 14A TO THE FILE OF THE CIT(A). MOREOVER, THE TRIBUNAL AFTER CONSIDERING THE FACTS OF THE PRESENT YEAR HAS NOTED THAT THIS MATTER REQUIRES FRESH CONSIDERATION BY THE AO IN THE LIGHT OF THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE AND ALSO JUDICIAL PRONOUNCEMENTS ON THIS ISSUE. WE DO NOT FIND ANY INFIRMITY IN SUCH A DIRECTION, W HEREBY, THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE AO WHO WILL CONSIDER ALL THE PLEAS RAISED BY THE ASSESSEE INCLUDING THAT OF THE STRATEGIC INVESTMENTS AMOUNT OFFERED FOR DISALLOWANCE IN REVISED COMPUTATION, ETC. BECAUSE ALL THESE SUBMISSIONS REQUIR E PROPER VERIFICATION AND EXAMINATION BY AO FROM MATERIAL ON RECORD. THUS, NO INTERFERENCE IS CALLED FOR IN THE SAID ORDER, EXCEPT FOR THE MISTAKE, IN NOTHING THAT AY 2008 - 09 THE MATTER WAS SET ASIDE TO THE FILE OF THE AO. IN THE FACTS OF THE PRESENT ORDER , THE MATTER HAS BEEN SET ASIDE TO THE AO, BECAUSE OF THE ISSUES WHICH HAS BEEN RAISED BY THE ASSESSEE HAS NOT PROPERLY DEALT BY THE AUTHORITIES BELOW, THUS, WE DO NOT FIND ANY MERITS IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, ACCORDINGLY, THE SAME IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JU LY , 2016 . SD/ - SD/ - ( ) ( ) ( D KARUNAKAR RAO ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 1 ST JULY , 2016 . , PIEM HOTELS LTD. MA NO. 15 /MUM/2016 4 / COPY TO : - 1 ) / THE APPLICANT . 2 ) / THE RESPONDENT. 3) THE CIT (A) - 4 / CONCERNED__ , MUMBAI . 4 ) THE COMMISSIONER OF INCOME TAX - 3 / CONCERNED__ , MUMBAI . 5 ) , , / THE D.R. C BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / T RUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS