GOLDMAN SACHS (INDIA) PVT. LTD., MUMBAI v. DCIT 1 (1)(2), MUMBAI

ITA 830/MUM/2019 | 2013-2014
Pronouncement Date: 27-05-2021 | Result: Partly Allowed

Appeal Details

RSA Number 83019914 RSA 2019
Assessee PAN AAACP2448J
Bench Mumbai
Appeal Number ITA 830/MUM/2019
Duration Of Justice 2 year(s) 3 month(s) 12 day(s)
Appellant GOLDMAN SACHS (INDIA) PVT. LTD., MUMBAI
Respondent DCIT 1 (1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-05-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 27-05-2021
Last Hearing Date 04-03-2020
First Hearing Date 04-03-2020
Assessment Year 2013-2014
Appeal Filed On 14-02-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH MUM BAI BEFORE SHRI SHAMIM YAHYA AM AND SHRI AMARJIT SINGH JM ITA NO.830/MUM/2019 (ASSESSMENT YEAR: 2013-14) GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED 951 A RATIONAL HOUSE APPASAHEB MARATHE MARG PRABHADEVI MUMBAI-400 025 VS. DY. CIT-1(1)(2) MUMBAI PAN/GIR NO. AAACP 2448 J ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI JAHANGIR MISTRI/HITEN CHANDE RESPONDENT BY : SHRI RAKESH GARG DATE OF HEARING : 03.03.2021 DATE OF PRONOUNCEMENT : 27.05.2021 O R D E R PER SHAMIM YAHYA A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2 MUMBAI (LD .CIT(A) FOR SHORT) DATED 19.12.2018 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y .) 2013-14. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. IN DISALLOWING THE CLAIM OF THE APPELLANT TO RED UCE THE REVERSAL OF PROVISION FOR BAD AND DOUBTFUL DEBTS AMOUNTING TO RS.31 30 20 000 FROM THE BOOK PROFITS COMPUTED UNDER SECTION 115JB OF THE ACT. 2. IN NOT APPRECIATING THE FACT THAT EVEN IF THE PR OVISIONS FOR BAD AND DOUBTFUL DEBTS WERE ADDED BACK TO THE BOOK PROFITS IN THE FY 2008- 09 AND FY 2009-10 THE TAX WOULD STILL BE COMPUTED UNDER THE NORMAL PROVISIONS OF TH E INCOME TAX ACT 1961 THEREBY NOT RESULTING IN ANY LOSS TO THE REVENUE. 3. IN NOT APPRECIATING THAT THE ISSUE IS COVERED BY THE DECISION OF THE HONBLE AGRA TRIBUNAL IN THE CASE OF ACIT VS. SRINIVAS SYNTHETIC S PACKERS PVT. LTD. (22 DTR 562) [AGRA TRIBUNAL] WHICH WAS ISSUED IN THE CONTEXT OF CLAUSE (I) OF THE EXPLANATION 1 TO SECTION 115JB OF THE ACT. 4. IN PLACING RELIANCE ON THE DECISION OF THE HONB LE SUPREME COURT IN CASE OF APOLLO TYRES LTD. [2002] 255 ITR 273. 5. IN LEVYING INTEREST UNDER SECTION 234C OF THE IN COME TAX ACT 1961. 6. IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. 2 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT APROPOS GROUND RELATING TO DISALLOWANCE OF RS.31 30 20 000/- 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CO MPANY IS ENGAGED IN THE BUSINESS OF FINANCIAL SERVICES AS NBFC. THE ASSESSING OFFICER N OTED THAT THE ASSESSEE HAS CLAIMED WRITE OFF BAD DEBT DISALLOWED IN EARLIER YEARS AT RS.36 60 10 774/-. UPON THE A.O.S ENQUIRY THE ASSESSEE EXPLAINED THAT THE ENTIRE BAD DEBTS WRITTEN OFF OF RS.36 60 10 774/- DURING THE YEAR PERTAINS TO ONLY ONE PARTY I.E. SAN GHI INDUSTIRES LIMITED (SIL). A LOAN OF RS.66 60 00 000/- WAS GRANTED BY ASSESSEE TO SIL IN F.Y. 2008-09. INTEREST ACCRUED ON THE LOAN GIVEN TO SIL WAS CREDITED TO THE PROFIT AN D LOSS ACCOUNT FOR THE YEARS ENDED 31.03.2009 31.03.2010 AND 31.03.2011 AND WAS OFF ERED TO TAX UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. BASED ON THE NON BA NKING FINANCIAL COMPANIES PRUDENTIAL NORMS (NBFC) (RESERVE BANK) DIRECTIONS 2007 ISSUED BY RBI WHERE AN ASSET HAS REMAINED OVERDUE FOR A PERIOD OF SIX MONT HS OR MORE THE ASSET SHALL BE CLASSIFIED AS A NON-PERFORMING ASSET (NPA) A PROVI SION WAS CREATED IN THE BOOKS OF ACCOUNTS OF ASSESSEE IN RESPECT OF THE LOAN GIVEN T O SIL FROM FY 2008-09 ONWARDS. 4. THE A.O. FURTHER MADE THE FOLLOWING OBSERVATION BASED UPON HIS ENQUIRY AND THE ASSESSEES REPLY: I) IN F.Y. 2008-09 (A.Y. 2009-10) THE ASSESSEE HAD SHOWN PROFIT/(LOSS) BEFORE TAX AT RS.(16 83 85 897) AFTER DEBITING PROVISION FOR N ON PERFORMING LOANS AT RS.19 98 00 000/-. THE SAID AMOUNT OF RS.19 98 00 0 00/- WAS ADDED IN COMPUTATION OF INCOME HOWEVER NOT ADDED BACK IN THE BOOK PROFITS. THE BOOK PROFIT/(LOSS) WAS COMPUTED AT RS.(16 84 76 331). II) IN F.Y. 2009-10 (A.Y. 2010-11) THE ASSESSEE H AD SHOWN PROFIT/(LOSS) BEFORE TAX AT RS.(6 57 42 330) AFTER DEBITING PROVISION FOR NO N PERFORMING LOANS AT RS.11 32 20 000/-. THE SAID AMOUNT OF RS.11 32 20 0 00/- WAS ADDED IN COMPUTATION OF INCOME HOWEVER NOT ADDED BACK IN THE BOOK PROFITS. THE BOOK/PROFIT/(LOSS) WAS COMPUTED AT RS.(6 57 42 330). III) IN F.Y. 2010-11 (A.Y.2011-12) THE ASSESSEE HA D SHOWN PROFIT/(LOSS) BEFORE TAX AT RS.(1 49 35 520) AFTER DEBITING PROVISION FOR NO N PERFORMING LOANS AT RS.8 65 80 000/-. THE SAID AMOUNT OF RS.8 65 80 000 /- WAS ADDED IN COMPUTATION OF INCOME AS WELL IN BOOK PROFITS. IV) IN F.Y. 2011-12 (A.Y. 2012-13) NO PROVISION W AS MADE FOR NON PERFORMING ASSETS. 5. THE A.O. REFERRED TO EXPLANATION (1) OF SECTION 115JB AND HELD AS UNDER: 5.7 A REFERENCE TO THE ABOVE PROVISIONS OF IT INCOM E TAX ACT 1961 MAKES IT CLEAR THAT THE AMOUNT WITHDRAWN FROM ANY PROVISION MADE I N EARLIER YEAR CAN BE REDUCED FROM BOOK PROFITS ONLY IF THE BOOK PROFITS OF SUCH YEAR HAD BEEN INCREASED BY SUCH PROVISION 3 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT (I.E. CONSIDERING IT AN OTHER THAN ASCERTAINED LIAB ILITY). IN THE PRESENT CASE THE ASSESSEE HAD MADE RELEVANT PROVISIONS IN PREVIOUS YEARS I.E . A.Y. 2009-10 (RS.19 98 00 000) A.Y. 2010-11 (RS.11 32 20 000) & A.Y. 2011-12 (RS. 8 65 80 000) OUT OF WHICH THE ASSESSEE HAS WITHDRAWN THE AMOUNT FOR WRITING OFF I N THE YEAR UNDER CONSIDERATION. OUT OF ABOVE IT IS EVIDENT THAT THE ASSESSEE HAD NOT ADDE D BACK THE AMOUNT OF RS.19 98 00 000/- & RS.11 32 20 000/- IN A.Y. 2009-10 & A.Y. 2010-11 RESPECIVELY WHILE COMPUTING THE BOOK PROFITS FOR RESPECTIVE YEARS HENCE WHILE MAKI NG REVERSAL OF SUCH PROVISIONS IN THE YEAR UNDER CONSIDERATION REDUCED THE AMOUNT OF RS. 36 60 10 774/- FROM BOOK PROFITS THE AMOUNT OF RS.19 98 00 000/- & RS.11 32 20 000/- I.E . TOTAL RS.31 30 20 000/- IS TO BE ADDED BACK TO BOOK PROFITS OF THE ASSESSEE. 5.8 ACCORDINGLY THE AMOUNT OF RS.31 30 20 000/- IS ADDED BACK TO BOOK PROFIT U/S. 115JB OF THE ASSESSEE. PENALTY PROCEEDINGS U/S. 271 (1) ARE INITIATED SEPARATELY FOR CONCEALING OF INCOME AND/OR FURNISHING OF INACCURAT E PARTICULARS OF INCOME. 6. AGAINST THE ABOVE ORDER THE ASSESSEE APPEALED B EFORE THE LD. CIT(A). THE LD. CIT(A) FOUND THE PROVISION OF SECTION 115JB EXPLANA TION 1 TO BE FULLY APPLICABLE. HE DISLODGED THE SUBMISSIONS OF THE ASSESSEE AS WELL A S RELIANCE UPON AGRA BENCH OF ITAT DECISION WHICH WAS FOUND TO BE IN A DIFFERENT CONT EXT AND NOT APPLICABLE. THE LD. CIT(A) HELD AS UNDER: 5.5.1 IT IS CLEAR THAT THE A.O. IS BOUND TO COMPUTE THE BOOK PROFIT IN THE MANNER PROVIDED IN SEC. 115JB AND THERE IS NO ERROR IN THE COMPUTATION OF BOOK PROFIT MADE BY THE A.O. SINCE IT IS AN ADMITTED FACT THAT THE APPE LLANT COMPANY HAS NOT ADDED BACK THE PROVISION FOR NPA WHILE COMPUTING THE BOOK PROFITS FOR A.Y. 2009-10 AMOUNTING TO RS.199 800 000/- AND FOR A.Y. 2010-11 AMOUNTING TO RS.113 220 000/- ALTHOUGH IT HAS MADE A WRONG CLAIM TO REDUCE THE BOOK PROFIT BY INC LUDING THE ABOVE SAID AMOUNTS WHEN THE PROVISION HAS BEEN WRITTEN BACK AND CREDITED TO THE PROFIT & LOSS ACCOUNT IN A.Y. 2013-14. 5.1.2 THE APPELLANT HAS FURTHER SUBMITTED THAT IT H AD INADVERTENTLY NOT ADDED BACK THE PROVISION CREATED FOR BAD AND DOUBTFUL DEBTS TO THE BOOK PROFIT U/S. 115JB OF THE ACT IN A.Y. 2009-10 AND A.Y. 2010-11 AND EVEN IF THE BOOK PROFIT OF THE APPELLANT WERE TO BE REVISED TO ADD THE PROVISION FOR BAD AND DOUBTFUL D EBTS THE APPELLANT WOULD STILL FALL UNDER THE NORMAL PROVISIONS OF THE ACT IN A.Y. 2009 -10AND A.Y. 2010-11. ACCORDINGLY THERE WOULD BE NO IMPACT ON THE TAXES PAYABLE IN A. Y. 2009-10 AND A.Y. 2010-11. THIS CONTENTION IS FOUND TO BE WITHOUT MERIT SINCE THE B OOK PROFIT IN A.Y. 2013-14 HAS TO BE COMPUTED IN LIGHT OF THE PROVISIONS OF SEC. 115JB W HICH CLEARLY PROVIDES FOR NOT ALLOWING THE REDUCTION OF BOOK PROFIT ON ACCOUNT OF WRITE BA CK OF PROVISION IN THE YEAR OF WRITE BACK IF THE PROVISION WAS NOT ADDED BACK IN THE BOO K PROFIT IN THE YEAR IN WHICH THE PROVISION WAS MADE. FURTHER THERE IS NO SCOPE FOR ANY INTERPRETATION OF THE PROVISIONS WHICH HAS TO BE FOLLOWED STRICTLY AND IF THE APPELL ANT HAS MADE AN ERROR IN A.Y. 2009-10 AND 2010-11 THE ONLY RECOURSE LEFT IS TO COMPUTE T HE INCOME IN A.Y. 2013-14 AS PER THE PROVISIONS OF SEC. 115JB AND PAY THE DUE TAXES IN A .Y. 2013-14 AS DETERMINED BY THE A.O. RELIANCE IS PLACED ON THE DECISION OF THE HON' BLE APEX COURT IN THE CASE OF APOLLO TYRES VS. CIT (2002) 122 TAXMAN 562. 5.1.3 THE APPELLANT HAS RELIED ON A DECISION OF HON BLE ITAT AGRA BENCH IN THE CASE OF ACIT VS. SRINIVAS SYNTHETICS PACKERS PVT. LTD. (SUP RA) WHICH RELATES TO WRITE BACK OF 4 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT EXCESS DEPRECIATION FOR A.Y. 2001-02 ON ACCOUNT OF CHANGE IN THE METHOD OF CLAIMING DEPRECIATION FROM WDV TO STRAIGHT LINE METHOD. FURT HER THE PROVISION REGARDING REDUCTION OF DEPRECIATION [AS PER CLAUSE (IIA) TO E XPLANATION 1 OF SECT. 115JB] HAS COME FROM A.Y. 2007-08 AND THERE WAS NO SUCH PROVISION F OR A.Y. 2001-02 IN RESPECT OF WHICH THE ITAT HAS GIVEN THE FINDING. HOWEVER THE PRESEN T CLAUSE (I) ALONGWITH THE PROVISO TO EXPLANATION 1 OF SECT. 115JB IS IN PLACE FROM A.Y. 2001-02. THE FACTS IN THE CASE OF THE APPELLANT ARE DIFFERENT AND THEREFORE THE ABOVE SA ID DECISION OF THE ITAT AGRA BENCH DO NOT HELP THE CASE OF THE APPELLANT IN ANY MANNER . 5.1.4 IN VIEW OF THE ABOVE DISCUSSION THE ADDITION OF RS.313 020 000/- MADE BY THE A.O. WHILE COMPUTING THE BOOK PROFIT IS UPHELD. 7. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. 9. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT T HE AUTHORITIES BELOW HAVE WRONGLY INVOKED THE PROVISO AS THE SAME IS APPLICABLE WHEN NO TAX IS PAID ON BOOK PROFIT. THE COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS ACTUALLY PAID MORE TAXES. HE REFERRED TO BOARD CIRCULAR NO. 530 DATED 01.01.1 990. HE SUBMITTED A COMPUTATION WHEREIN IT WAS SHOWN THAT EVEN IF THE PROVISION WER E ADDED BACK TO THE BOOK PROFIT IN CONCERNED ASSESSMENT YEAR THERE WOULD NOT HAVE BEE N ANY MAT PAYABLE ON BOOK PROFIT. AS THE ASSESSEE HAS PAID TAX ON NORMAL PROFIT THER E IS NO IMPACT. HE PLACED RELIANCE UPON THE FOLLOWING CASE LAWS: 1. ASST. CIT VS. SRINIVAS SYNTHETICS PACKERS (P) LTD . [2009] 122 TTJ 832 (AGRA) 2. ACIT VS. M/S. RATIONAL HANDLOOM CO. PVT. LTD . (IN ITA NO. 6481/MUM/2016 VIDE ORDER DATED 23.07.2019) 3. UCO BANK VS. CIT 237 ITR 879 10. PER CONTRA THE LD. DEPARTMENTAL REPRESENTATIVE (LD. DR FOR SHORT) RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 11. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. AS PER THE UNDISPUTED FACTS IN THIS CASE THE ASSESSEE HAS CLA IMED WRITE BACK/OFF TO CREDIT TO THE PROFIT AND LOSS ACCOUNT OF THE PROVISION FOR BAD DEBT AMOU NTING TO RS.36 60 10 774/- MADE IN EARLIER YEAR. 12. THE ASSESSING OFFICER HAS INVOKED THE PROVISION S OF SECTION 115JB EXPLANATION 1 WHICH IS REPRODUCED AS UNDER: 5 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT 5.6 AS PER EXPLANATION (1) OF SECTION 115JB 'FOR THE PURPOSES OF THIS SECTION 'BOOK PROFIT' MEANS THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR PREPARED UNDER SUB-SECTION (2) .... AS REDUCED BY - '(I) THE AMOUNT WITHDRAWN FROM ANY RESERVE OR PROVI SION (EXCLUDING A RESERVE CREATED BEFORE THE 1 ST DAY OF APRIL 1997 OTHERWISE THAN BY WAY OF A DEBI T TO THE PROFIT AND LOSS ACCOUNT) IF ANY SUCH AMOUNT IS CRE DITED TO PROFIT AND LOSS ACCOUNT: PROVIDED THAT WHERE THIS SECTION IS APPLICABLE TO A N ASSESSEE IN ANY PREVIOUS YEAR THE AMOUNT WITHDRAWN FROM RESERVES CREATED OR PROVI SIONS MADE IN A PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON OR A FTER THE 1 ST DAY OF APRIL 1997 SHALL NOT BE REDUCED FROM THE BOOK PROFIT UNLE SS THE BOOK PROFIT OF SUCH YEAR HAS BEEN INCREASED BV THOSE RESERVES OR PROVISIONS (OUT OF WHICH THE SAID AMOUNT WAS WITHDRAWN) UNDER THIS EXPLANATION OR EXPLANATIO N BELOW THE SECOND PROVISO TO SECTION 115JA AS THE CASE MAY BE; OR....' THE REFERRED SECOND PROVISO TO SECTION 115JA PROVID ES THAT 'FOR THE PURPOSES OF THIS SECTION 'BOOK PROFIT' MEAN THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR PREPARED UNDER SUBSECTION (2 ) AS INCREASED BY- ..... (C) THE AMOUNT OR AMOUNTS SET ASIDE TO PROVISIONS MADE FOR MEETING LIABILITIES OTHER THAN ASCERTAINED LIABILITIES; OR 13. NOW WHILE EXAMINING THE CLAIM OF THE ASSESSEE THE ASSESSING OFFICER FOUND THAT IN EARLIER YEAR I.E. ASSESSMENT YEARS 2009 -10 AND 2 010 -11 THE PROVISIONS MADE WERE NOT ADDED BACK TO THE BOOK PROFIT. HENCE HE MADE THE I MPUGNED ADDITION OF EQUIVALENT AMOUNT OF RS.31 30 020/- TO THE BOOK PROFIT. THE AS SESSEE HAS CONTENDED BEFORE THE LEARNED CIT APPEALS AS WELL AS BEFORE US THAT THIS EXERCISE IN EARLIER YEARS WOULD HAVE BEEN FUTILE AND ACADEMIC EXERCISE. THIS WAS ON THE REASONING THAT THE IMPUGNED AMOUNTS WHEN ADDED TO THE CONCERNED ASSESS MENT YEAR'S BOOK PROFIT WOULD STILL NOT HAVE CALLED UPON THE ASSESSEE TO PAY ANY TAX ON THE BOOK PROFIT AS THE TAX PAYABLE ON NORMAL COMPUTATION OF PROFITS WERE MUCH HIGHER THAN THE TAX ON BOOK PROFITS. THIS CONTENTION IS DULY RECORDED BY THE LEARNED CIT APPEALS IN HIS ORDER. THE LEARNED COUNSEL OF THE ASSESSEE HAS ALSO SUBMITTED A CHART BEFORE US TO THIS EFFECT. 14. THE LD.CIT APPEALS HAS REJECTED THE AFORESAID A RGUMENT ON THE PREMISE THAT THE PROVISION OF ACT HAS TO BE STRICTLY CONSTRUED AND H ENCE HE HAS REJECTED THE AFORESAID PLEA OF THE ASSESSEE. WE FIND THAT THE AFORESAID VIEW OF THE LEARNED CIT APPEALS IS NOT SUSTAINABLE IF WE APPLY THE PURPOSIVE TEST OF THE ENACTMENT BEING CONSIDERED HERE. TO RECAPITULATE THE PROVISION OF THE ACT MANDATES THAT IF ASSESSEE WRITES BACK PROVISION FOR BAD DEBT MADE IN APPEAL YEARS THE DEDUCTION OF THE SAME FROM THE BOOK PROFIT IS PERMISSIBLE IF THE PROVISION CREATED IN THE EARLIER YEAR HAS BEEN ADDED BACK TO THE BOOK 6 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT PROFIT. IN THIS REGARD THE CBDT CIRCULAR NO. 550 ( SUPRA) EXPLAINS THAT SUCH AN ACTION IN EARLIER YEAR SHOULD HAVE GONE TO INCREASE THE BOOK PROFIT OF THE SAID YEAR. 15. WE ARE OF THE CONSIDERED OPINION THAT IN THIS R EGARD IF THE ASSESSEE IS NOT CALLED UPON TO PAY ANY TAX ON BOOK PROFIT AS TAXES ON NORM AL COMPUTATION ARE HIGHER EVEN AFTER THE AFORESAID EXERCISE OF INCREASE OF THE BOOK PROF IT BY THE AMOUNT OF PROVISION FOR THE CONCERNED YEAR THE EXERCISE WOULD BE AN EMPTY EXER CISE AND REVENUE NEUTRAL. THIS MEANS THAT THE ASSESSEE WOULD NOT HAVE BEEN CALLED UPON T O PAY ANY EXTRA TAX WHATSOEVER HAD THIS EXERCISE BEEN DONE. THE HON'BLE SUPREME COURT HAD AN OCCASION TO EXPOUND IN THE CASE OF CIT VS. EXCEL INDUSTRIES VIDE ORDER DATED 09.10.2013 THAT WHEN THE EXERCISE IS REVENUE NEUTRAL THE ACTION ON THE PART OF REVENUE AUTHORITY IS NOT SUSTAINABLE. THE HON'BLE APEX COURT HAD OBSERVED THAT SUCH AN EXERCI SE IS FRUITLESS (ON MERITS) BUT ALSO IT MAY NOT HAVE ADDED ANYTHING MUCH TO THE PUBLIC COFF ER. IN THIS CASE IT IS AMPLY CLEAR THAT SUCH AN EXERCISE IN EARLIER YEAR WOULD NOT HAVE ADD ED ANYTHING TO THE PUBLIC COFFER. 16. HENCE FROM THE ABOVE IT IS AMPLY CLEAR THAT TH E EXPLANATION INVOKED BY THE AUTHORITIES BELOW IS NOT APPLICABLE ON THE FACTS OF THIS CASE. EVEN FOR ARGUMENT SAKE WE CONSIDER THE VIEW THAT THERE ARE TWO VIEWS POSSIBLE WE ARE OF THE CONSIDERED OPINION THAT THE VIEW IN FAVOUR OF ASSESSEE IS ON AN OVERWHELMIN G HIGHER SIDE. IN THIS VIEW OF THE MATTER AS EXPOUNDED BY THE HONBLE COURTS CONSTIT UTION BENCH IN THE CASE OF DILIP GANDHI (SUPRA) IF TWO VIEWS ARE POSSIBLE IN A STATUTORY TAX PROVISIONS THE ONE IN FAVOUR OF THE ASSESSEE SHOULD BE ADOPTED. ACCORDINGLY IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT WE ARE OF THE CONSIDERED OPINION THAT THE ORDER OF THE LD. CIT(A) IS NOT SUSTAINABLE. ACCORDINGLY WE SET ASID E THE ORDER OF THE LD. CIT(A) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. APROPOS ISSUE OF INTEREST U/S.234C 17. ON THIS ISSUE THE LD. COUNSEL OF THE ASSESSEE HAS BEEN SUBMITTED THAT INTEREST IS LEVIABLE ON RETURNED INCOME AND NOT ON ASSESSED INC OME. THAT THIS SUBMISSION WAS MADE BUT NOT CONSIDERED BY THE LD. CIT(A). UPON CAREFUL CONSIDERATION WE FIND THAT THIS ISSUE IS CONSEQUENTIAL THE A.O. SHALL CONSIDER THE SAME AS PER LAW. 7 ITA NO. 830/MUM/2019 GOLDMAN SACHS (INDIA) FINANCE PRIVATE LIMITED VS.DY . CIT 18. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 27.05.2021 SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 27.05.2021 ROSHANI SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR ITAT MUMBAI 6. GUARD FILE BY ORDER (DY./ASSTT. REGISTRAR) ITAT MUMBAI