PRATIMA J MEHTA, V. DCIT CEN CIR 23,

MA 204/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3878 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 02-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DANIEL
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER MA NO. 204/MUM/2015 (IN ITA NO. 5695/MUM/2013) (ASSESSMENT YEAR : 200 2 - 03 ) PRATIMA H. MEHTA 32, MADHULI, DR. A.B. ROAD, WORLI, MUMBAI 400 018. PAN : ABNPM 8226 G ( APPLICANT ) VS DCIT, CENTRAL CIRCLE 23, AAYAKAR BHAVAN, MUMBAI 400 020. (RESPONDENT) APPLICANT BY : SHRI DHARMESH SHAH ( A R) RESPONDENT BY : SHRI P. DANIEL ( D R) DATE OF HEARING : 08/01/2016 DATE OF PRONOUNCEMENT : 15 /01/2016 O R D E R PER AMIT SHUKLA, JM : IN THE AFORESAID MISCELLANEOUS APPLICATION THE ASSESSEE HAS POINTED OUT THAT, FIRSTLY , WHILE ADJUDICATING GROUND NO. 4, THE TRIBUNAL AFTER RELYING UPON THE ASSESSEES OWN CASE FOR THE A.Y 2009 - 10 HAS HELD THAT THIS GROUND IS TO BE TREATED AS DISMISSED , WHEREAS THE TRIBUNAL IN ITS ORDER FOR A.Y 2009 - 10 HAD ACTUALLY RESTORED BACK THIS ISSUE T O THE FILE OF THE AO FOR FRESH ADJUDICATION IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIVINE HOLDINGS PVT. LTD. THEREFORE, THIS ISSUE HAS WRONGLY BEEN DISMISSED WHICH INSTEAD SHOULD HAVE BEEN SET ASIDE TO THE FILE OF AO , AND SECONDLY , WHILE ADJUDICATING GROUND NOS. 1 & 2 VIDE PARA 4 AND 5, THE TRIBUNAL HAS REPRODUCED 2 PRATIMA H. MEHTA MA NO. 204/MUM/2015 THE RELEVANT PORTION OF THE TRIBUNALS ORDER WHICH HAS BEEN STATED TO BE FOR THE A.Y 2009 - 10 WHICH, IN FACT, IS FROM THE TRIBUNALS ORDER IN ITA NO. 1942 & 1943/M UM/2012 FOR THE A.YS 1998 - 99 AND 2000 - 01. HENCE, THE YEAR OF REFERENCE IN PARA 4 SHOULD BE CORRECTED TO A.YS 1998 - 99 AND 2000 - 01 INSTEAD OF A.Y 2009 - 10. 2) AFTER CONSIDERING THE CONTENTIONS RAISED BY THE ASSESSEE AND ALSO AFTER HEARING THE PARTIES, WE FI ND THAT THE MISTAKE POINTED OUT BY THE LEARNED COUNSEL IN THE MISCELLANEOUS APPLICATION APPEARS TO BE CORRECT. THE TRIBUNAL WHILE ADJUDICATING GROUND NO. 4 HAS DISMISSED THE GROUND PERTAINING TO CHARGEABILITY OF INTEREST U/S 234A, 234B AND 234C ON THE GRO UND THAT THE SAME IS COVERED BY THE TRIBUNAL ORDER FOR A.Y 2009 - 10 . HOWEVER, THE TRIBUNAL IN A.Y 2009 - 10 HAD RESTORED BACK THE ISSUE TO THE FILE OF THE AO AFTER OBSERVING AND HOLDING AS UNDER : 5. APROPOS GROUND NO.4, IT WAS STATED TO BE COVERED BY THE DECISION OF TRIBUNAL DATED 18/6/2014 IN ITA NOS. 2139, 2140 & 2141/MUM/2013 VIDE ORDER DATED 18/6/2014. REFERENCE WAS INVITED TO THE FOLLOWING OBSERVATIONS: 3. THE NEXT GROUND OF APPEAL IS ABOUT LE VY OF INTEREST U/S. 234 OF THE ACT. BEFORE US, AR STATED THAT THE ASSESSEE WAS A NOTIFIED ENTITY, THAT THE PROVISIONS OF S.234A, 234B AND 234C OF THE ACT WERE DEEMED TO HAVE COMPLIED WITH, THAT THE ASSETS WERE ALREADY IN ATTACHMENT OF THE CUSTODIAN APPOINT ED UNDER THE PROVISIONS OF THE SPECIAL COURTS ACT, THAT THE TRIBUNAL IN THE CASE OF THE APPELLANT AND SEVERAL OTHER ENTITIES HAD HELD THE VIEW IN FAVOUR OF THE APPELLANT THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF DIVINE HOLDINGS PVT. LTD. AND CASC ADE HOLDINGS PVT. LTD. HAD HELD THE PROVISIONS OF SECTIONS 234A, 234B AND 234C OF THE ACT WERE MANDATORY AND WERE APPLICABLE TO THE NOTIFIED ENTITIES ALSO, THAT THE ASSESSEE WAS IN THE PROCESS OF FILING AN APPEAL AGAINST THE SAID ORDER BEFORE THE HON'BLE SUPREME COURT, THAT THE INCOME EARNED IN THE YEAR UNDER CONSIDERATION WAS SUBJECTED TO PROVISIONS OF TDS, THAT THE CHARGEABILITY OF THE SECTION 234A, 2348 AND 234C OF THE ACT SHOULD BE AFTER CONSIDERING THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE ON THE INCOM E 3 PRATIMA H. MEHTA MA NO. 204/MUM/2015 ASSESSED. THE APPELLANT RELIES IN THIS REGARD ON THE FOLLOWING DECISIONS. HE RELIED UPON THE CASES OF MOTOROLA INC. V. DCIT [95 IID 269 (DEL. (SB)], SEDCO FORES DRILLING CO. LTD. [264 ITR 320], NGC NETWORK ASIA LLC [313 ITR 187] ,SUMMIT BHATACHARYA [ 300 ITR (AI) 347 (BOM)(SB)], VIJAL GOPAL JINDAL [ITA NO. 4333/DE1/2009] & EMILLO RUIZ BERDEJO [320 ITR 190 (BOM)]. DR RELIED UPON THE CASES OF DIVINE HOLDINGS PVT. LTD. 3.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IN THE CASE OF DEVINE HOLDINGS PVT. LTD. HON'BLE BOMBAY HIGH COURT HAS HELD THAT PROVISIONS OF SECTION 234A, 234B AND 234C WERE APPLICABLE TO THE NOTIFIED PERSON ALSO. THEREFORE, UPHOLDING THE ORDER OF THE FAA TO THAT EXTENT, WE HOLD THAT PROVI SIONS OF SECTION 234 OF THE ACT ARE APPLICABLE. AS FAR AS CALCULATION PART IS CONCERNED, WE FIND MERITS IN THE SUBMISSION MADE BY THE ASSESSEE. THEREFORE, WE ARE RESTORING BACK THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION WHO WOULD DECIDE THE I SSUE AFTER CONSIDERING THE AMOUNT TAXED DEDUCTIBLE AT SOURCE ON THE INCOME ASSESSED AND AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. GROUND NO. 5 IS ALLOWED IN PART IN FAVOUR OF THE ASSESSEE. AS A RESULT, APPEAL FILED BY THE ASSES SEE FOR THE A.Y 2002 - 03 STANDS PARTLY ALLOWED. 6. LD. SPECIAL COUNSEL DID NOT CONTROVERT SUCH CONTENTION OF LD. AR THAT THE ISSUE IS COVERED BY THE AFOREMENTIONED OBSERVATIONS. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOTH THE PARTIES, WE PASS SIMILAR ORDER AND THIS GROUND IS CONSIDERED TO BE PARTLY ALLOWED. ACCORDINGLY, CONSISTENT WITH THE VIEW TAKEN IN A.Y 2009 - 10 , WE CORRECT THE SAID MISTAKE AND DIRECT THE AO TO RE - COMPUTE THE INTEREST AS PER THE D IRECTIONS GIVEN BY THE TRIBUNAL. THUS, GRO UND NO. 4 WOULD NOW BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 3) AS REGARDS THE SECOND MISTAKE POINTED OUT BY THE ASSESSEE, WE FIND THAT THE CONTENTION OF THE ASSESSEE IS CORRECT AS THE RELEVANT PORTION OF THE TRIBUNAL 4 PRATIMA H. MEHTA MA NO. 204/MUM/2015 ORDER INCORPORATED IN PARA 5 P ERTAINS TO A.YS 1998 - 99 AND 2000 - 01 AND NOT TO A.Y 2009 - 10 AS OBSERVED IN PARA 4 OF THE TRIBUNAL ORDER. ACCORDINGLY, A.Y 2009 - 10 AS MENTIONED IN PARA 4 SHOULD BE READ AS A.YS 1998 - 99 AND 2000 - 01. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE IS ALLOWED TO THE EXTENT ABOVE. 4) ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2016. SD/ - SD/ - ( G.S. PANNU ) ACCOUNTANT MEMBER (AMIT SHUKLA) JUDICIAL MEMBER MUMBAI, DATE : 15 TH JANUARY, 2016 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) - 3 7 , MUMBAI 4) THE CIT - CENTRAL - II , MUMBAI 5) THE D.R, C BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI *SSL*