EMINENT HOLDINGS P.LTD, MUMBAI v. ASST CIT CEN CIR 31, MUMBAI

ITA 5215/MUM/2012 | 2009-2010
Pronouncement Date: 11-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 521519914 RSA 2012
Assessee PAN AAACE3115H
Bench Mumbai
Appeal Number ITA 5215/MUM/2012
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant EMINENT HOLDINGS P.LTD, MUMBAI
Respondent ASST CIT CEN CIR 31, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 11-10-2013
Date Of Final Hearing 09-10-2013
Next Hearing Date 09-10-2013
Assessment Year 2009-2010
Appeal Filed On 17-08-2012
Judgment Text
E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI .. !'# $ $ $ $ %$$ $&; ( !'# !) BEFORE SHRI P.M. JAGTAP AM AND SHRI VIVEK VARMA J M !./ I.T.A. NO.5215 /MUM/2012 ( (+ & $ & (+ & $ & (+ & $ & (+ & $ & / / / / ASSESSMENT YEAR : 2009-10 M/S EMINENT HOLDINGS PVT. LTD. 32 MADHULI 3 RD FLOOR DR. ANNIE BESANT ROAD NEHRU CENTRE WORLI MUMBAI 400 018. + + + + / VS. ASSTT. COMMISSIONER OF INCOME TAX- CIRCLE 31 MUMBAI. #- !./ PAN : AAACE3115H ( -. / // / APPELLANT ) .. ( /0-. / RESPONDENT ) ASSESSEE BY SHRI DHARMESH SHAH ASSESSEE BY : DR. P. DANNEL !+$ 1 / // / DATE OF HEARING : 09-10-2013 23 1 / DATE OF PRONOUNCEMENT : 11-10-2013 [ '4 / O R D E R PER P.M. JAGTAP A.M . : .. !'# THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A) 40 MUMBAI DATED 26-06-2012. THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/S. 250 OF T HE ACT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPL YING WITH THE PRINCIPLES OF NATURAL JUSTICE. ITA 5215 /M/12 2 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT NO INCOME FROM ATTACHED ASSETS CAN BE ASSESSED IN THE HANDS OF THE APPELLAN T. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT GRANTING RELIEF OF LIABILIT Y AMOUNTING TO RS. 5 14 455/- TOWARDS INTEREST EXPENDITURE CLAIMED BY THE APPELLANT. 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING CALCULATION OF BOOK PROFIT U/S. 115JB AMOUNTING TO RS. 26 29 747/-. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING INTEREST CHARGED U/S. 23 4A 234B AND 234C OF THE ACT. 2. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE HAS NOT PRESSED GROUND NO. 1 TO 3. THE SAME ARE ACCORD INGLY DISMISSED AS NOT PRESSED. 3. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 4 RE LATING TO THE DISALLOWANCE OF INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT A SIMILAR ISSUE INVOLVED IN THE CASE OF TOPAZ HOLDINGS P. LTD. ANOTHER CONCERN BELONGING TO THE SAME GROUP HAS BEEN SET ASIDE BY THE TRIBUNAL TO THE FI LE OF LD. CIT(A) VIDE PARA NO. 3 OF ITS ORDER DATED 23 RD AUGUST 2013 PASSED IN ITA NO. 3432/MUM/2011 AND 3433/MUM/2011 FOR ASSESSMENT YEARS 2004-05 & 20 05-06 WHICH READS AS UNDER:- 3. GROUND NO. 3 IN BOTH THE APPEALS RELATE TO THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE LIABILITIES AMOUNTING TO R S. 2 05 112/- AND RS. 2 05 799/- RESPECTIVELY FOR THE AYS 2004-05 & 2005- 06 TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSESSEE. IT IS PERTINENT TO MENTION THAT THE 1TAT IN THE CASE OF HITESH MEHTA IN ITA NO S 7726 & 7727/MUM/2010 WHILE DECIDING A SIMILAR ISSUE HAS HE LD AS FOLLOWS: GROUND NO. 4 RELATES TO THE ACTION OF THE LD. CIT( A) H7 CONFIRMING THE I/ABILITIES AMOUNTING TO RS. 11 24 9 9 052/- AND RS. 12 61 36 245/- RESPECTIVELY FOR THE A.YS 2005-0 6 AND 2006- 07 TOWARDS INTEREST EXPENDITURE CLAIMED BY THE ASSE SSEE. IT IS ITA 5215 /M/12 3 PERTINENT TO NOTE THAT THE FINDINGS GIVEN IN PARA 3 .3 ABOVE IN RESPECT OF REJECTION/RELIABILITY OF THE BOOKS OF AC COUNTS AND THE PROPOSED ADJUDICATION OF THE LD. CIT(A) IN VIEW OF THE SAID DIRECTION MAY HAVE DIRECT IMPACT ON THE ISSUE OF TH E IMPUGNED LIABILITY WE SET ASIDE THIS ISSUE ALSO TO THE FILE S OF THE LD. CIT(A) TO ADJUDICATE AFRESH ALONG WITH THE ADJUDICATION OF THE RESPECTIVE GROUND PERTAINING TO THE REJECTION/RELIABILITY OF T HE BOOKS OF ACCOUNTS. IN VIEW OF THE FACT THAT THE PRESENT ASSESSEE IS AL SO LINKED TO THE GROUP ASSESSEE CONNECTED WITH THE SIMILAR SET OF FACTS AN D ISSUES AS THAT OF THE PRESENT ASSESSEE IN THE SAID ORDER OF THE ITAT WE BY FOLLOWING THE FINDINGS OF THE TRIBUNAL IN THE AFOREMENTIONED CASE SET ASIDE THE ISSUES TO THE FILE OF THE LD.CIT(A) TO ADJUDICATE AFRESH IN THE LINE OF SIMIL AR DIRECTION GIVEN BY THE ITAT IN ITA NOS. 7726 & 7727. ACCORDINGLY GROUND NOS. 3 IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. 4. AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WEL L AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO THE CASE OF M/S TOP AZ HOLDINGS P. LTD. (SUPRA) WE RESPECTFULLY FOLLOW THE ORDER OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THIS CASE AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AS PER THE SAME DIRECTION AS GIVEN BY T HE TRIBUNAL IN THE CASE OF TOPAZ HOLDINGS P. LTD. (SUPRA). GROUND NO. 4 OF THE ASSESSEES APPEAL IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 5. THE ISSUE INVOLVED IN GROUND NO. 5 RELATING TO T HE DISALLOWANCE OF INTEREST EXPENDITURE WHILE COMPUTING THE BOOK PROFI T U/S 115JB OF THE ACT IS CONSEQUENTIAL TO THE ISSUE INVOLVED IN GROUND NO. 4 OF THE ASSESSEES APPEAL. AS THE ISSUE INVOLVED IN GROUND NO. 4 IS RESTORED T O THE FILE OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH WE RESTORE THIS CONSEQUEN TIAL ISSUE INVOLVED IN GROUND NO. 5 ALSO TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH DEPENDING ON HIS DECISION ON THE ISSUE INVOLVED IN GROUND NO. 4. 6. THE ISSUES INVOLVED IN GROUND NO. 6 RELATING TO CHARGING OF INTEREST U/.S 234A 234B AND 234C OF THE ACT ARE ALSO CONSEQUENTI AL AND THE SAME THEREFORE ARE ALSO RESTORED TO THE FILE OF THE LD. CIT(A) FOR GIVING CONSEQUENTIAL RELIEF TO THE ASSESSEE. ITA 5215 /M/12 4 7. DURING THE COURSE OF APPELLATE PROCEEDINGS THE ASSESSEE HAS FILED AN APPLICATION SEEKING ADMISSION OF THE FOLLOWING ADDI TIONAL GROUND:- THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT AS P ER THE DECISION OF HONBLE SPECIAL COURT DATED 30.04.2010 IN MP NO. 41 OF 1999 THE ASSETS UNDER CONSIDERATION AND THE CONSEQUENTIAL IN COME BELONGS TO SHRI HARSHAD S. MEHTA AND HENCE THE INCOME ASSESSED BY THE ASSESSING OFFICER OUGHT TO HAVE BEEN TAXED IN THE H ANDS OF SHRI HARSHAD S. MEHTA AND NOT IN THE HANDS OF THE APPELL ANT. 8. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES A SIMILAR ADDITIONAL GROUND RAISED BY THE ASSESSEE IN THE CAS E OF ANOTHER ASSESSEE BELONGING TO THE SAME GROUP NAMELY SHRI HITESH S. M EHTA WAS ADMITTED BY THE TRIBUNAL VIDE ITS ORDER DATED 12-06-2013 PASSED IN ITA NO. 5587 TO 5589/MUM/2011 BUT THE SAME WAS FINALLY DISMISSED HO LDING THAT THE GROUND IS FULLY ACADEMIC IN NATURE FOR THE FOLLOWING REASO NS GIVEN IN PARA NO. 5:- 5 . AFTER GOING THROUGH THE ADDITION GROUND FILED BY THE ASSESSEE WE NOTED THAT THE GROUND IS LEGAL GROUND WHICH DOES NOT REQ UIRE ANY NEW FACTS TO BE BROUGHT ON RECORD. IN VIEW OF THE DECISION OF THE H ONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT REPORTED I N (1998) 229 ITR 383 THE LEGAL GROUND CAN BE ADMITTED IF NO NEW FACTS ARE TO BE BROUGHT ON RECORD. HOWEVER AFTER GOING THROUGH THE ADDITIO NAL GROUND RAISED BY THE ASSESSEE FOR ALL THE ASSESSMENT YEARS INVOLVED HERE BEFORE US WE FOUND THAT THE GROUND IS FULLY ACADEMIC IN NATURE FOR THE REAS ON THAT IF THE HONBLE SUPREME COURT DECIDES SOMETHING THAT HAS TO BE FOLL OWED WITHOUT ANY DISPUTE. THE DECISION OF THE HONBLE APEX COURT IS LAW OF LAND WHICH HAS TO BE FOLLOWED BY EVERY AUTHORITY. THEREFORE IN OUR VIEW NO DIRECTION IS TO BE REQUIRED TO BE GIVEN TO THE AO IN THIS RESPECT BECA USE IF THE HONBLE APEX COURT DECIDES THAT ALL THE INCOME BELONGS TO SHRI H ARSHAD S. MEHTA THEN THE INCOME HAS TO BE ASSESSED IN THE HANDS OF SHRI HARS HAD S. MEHTA NOT IN THE HANDS OF ANY OTHER PERSON. THEREFORE IN OUR VIEW THERE IS NO NEED TO ISSUE ANY DIRECTION AS THE DECISION OF THE HONBLE SUPREM E COURT HAS TO BE FOLLOWED IN ANY CASE. ACCORDINGLY BY ADMITTING THE GROUNDS RAISED BY THE ASSESSEE FOR ALL THESE YEARS WE TREAT THE SAME AS ACADEMIC IN N ATURE. 9. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-OR DINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI HITESH S. MEHTA (SUPRA ) WE ADMIT THE ADDITIONAL ITA 5215 /M/12 5 GROUND FILED BY THE ASSESSEE AND DISMISS THE SAME B EING MERELY ACADEMIC IN NATURE. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATE D AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER 2013. . '4 1 23 5'+6 11-10-2013 3 1 SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP ) ( !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 5'+ DATED 11-10-2013 $.(+.!./ RK SR. PS '4 1 /(7% 8% '4 1 /(7% 8% '4 1 /(7% 8% '4 1 /(7% 8% / COPY OF THE ORDER FORWARDED TO : 1. -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 9 () / THE CIT(A) 29 MUMBAI. 4. 9 / CIT 18 MUMBAI 5. %$< /((+ / DR ITAT MUMBAI E BENCH 6. =& > / GUARD FILE. '4+! '4+! '4+! '4+! / BY ORDER !0% /( //TRUE COPY// ? ? ? ?/ // /!@ !@ !@ !@ ( DY./ASSTT. REGISTRAR) / ITAT MUMBAI