SHAH THAKUR & SONS, MUMBAI v. ITO 12(2)(1), MUMBAI

ITSSA 20/MUM/2009 | misc
Pronouncement Date: 06-08-2010 | Result: Dismissed

Appeal Details

RSA Number 2019916 RSA 2009
Assessee PAN AABFS6090F
Bench Mumbai
Appeal Number ITSSA 20/MUM/2009
Duration Of Justice 1 year(s) 5 month(s) 19 day(s)
Appellant SHAH THAKUR & SONS, MUMBAI
Respondent ITO 12(2)(1), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 06-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 06-08-2010
Date Of Final Hearing 13-07-2010
Next Hearing Date 13-07-2010
Assessment Year misc
Appeal Filed On 16-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI. BEFORE S/SHRI S.V.MEHROTRA AM & VIJAY PAL RAO JM I.T.(SS)A NO.20/MUM/2009 BLOCK PERIOD: 1987-88 TO 1997-98 SHAH THAKUR & SONS V. THE I.T.O. 12(2)(1) 401 KSHAMALAYA 37 NEW MARINE AAYAKAR BHAVAN M .K. ROAD LINES MUMBAI-20. PA NO.AABFS 6090 F (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SAMEER DALAL RESPONDENT BY : SHRI HEMANT LAL O R D E R PER S.V.MEHROTRA AM THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 20.11.2008 OF LD CIT (A)-XII MUMBAI FOR THE BLOCK PERIOD 198 7-88 TO 1997-98. 2. THE EFFECTIVE GROUND OF APPEAL IS THAT LD CIT (A ) ERRED IN CONFIRMING IN CHARGING INTEREST U/S.220(2) OF THE I.T.ACT FOR THE PERIOD 9 .12.1997 TO 11.12.2007. 3. THE SHORT POINT FOR CONSIDERATION IN THE PRESENT APPEAL IS WHETHER INTEREST U/S.220(2) IS TO BE PAID FROM THE ORIGINAL DATE OF DEMAND TO THE DATE OF PAYMENT OR FROM THE DATE OF REVISED DEMAND TO THE DATE OF PAYM ENT. 4. THE FACTS OF THIS CASE ARE THAT THE ASSESSEE FIR M HAD STARTED A PROJECT OF CONSTRUCTION OF RESIDENTIAL AND COMMERCIAL COMPLEX AT M.G.ROAD GHATKOPAR (EAST) MUMBAI. THERE WAS A SEARCH AND SEIZURE ACTI ON U/S.132 OF THE I.T.ACT 1961 IN THE CASE OF C.D.SHAH GROUP ON 15 TH JULY 1996 AND DURING THE SEARCH CERTAIN PAPERS O F THE ASSESSEE FIRM WERE SEIZED. THE ASSESSMENT WAS COMPLETED U/S.143(3) UNDER CHAPTER XIV-B OF THE ACT. I.T.ACT AT A TOTAL INCOME OF RS.1 50 99 000/- BY TREATING THE ENTIRE ON-MONEY AS ASSESSEES UNDISCLOSED INCOME. THIS ORDER WAS PASSED ON 29.8.1997. LD CIT (A) DISMISSED THE ASSESSES APPE AL. HOWEVER THE TRIBUNAL VIDE ITS I.T.(SS)A NO.19/MUM/2009 BLOCK PERIOD: 1987-88 TO 1997-98 2 ORDER DATED 27.11.2006 PARTLY ALLOWED THE ASSESSEE S APPEAL AND DIRECTED THE AO TO TREAT ONLY 15% OF THE ON-MONEY AS ASSESSEES UNDIS CLOSED INCOME FOR THE BLOCK PERIOD. ACCORDINGLY THE AO REVISED THE UNDISCLOSED INCOME AT RS.22 64 850/- VIDE ORDER DATED 7.12.2007 AND DIRECTED FOR CHARGING OF INTEREST U/S .220(2) WHICH WAS DETERMINED FOR THE BLOCK PERIOD 9.10.1997 TO 4.12.2007 AS PER THE RATE OF INTEREST PREVAILING IN THE RESPECTIVE PERIODS. THE DETAILED CALCULATION IS GI VEN IN THE INCOME TAX COMPUTATION FORM AND THE AMOUNT WAS DETERMINED AT RS.24 78 652/-. T HE ASSESSEES CONTENTION IS THAT INTEREST IS LEVIABLE ONLY FROM THE DATE OF REVISED NOTICE OF DEMAND IN PURSUANCE TO THE ORDER OF THE TRIBUNAL AND NOT FROM 9.12.1997. 5. HAVING HEARD BOTH THE SIDES WE DO NOT FIND ANY SUBSTANCE IN THE ASSESSEES PLEA IN VIEW OF THE SPECIFIC PROVISO TO SECTION 220(2) WHICH READS AS UNDER:- IF THE AMOUNT SPECIFIED IN ANY NOTICE OF DEMAND UN DER SECTION 156 IS NOT PAID WITHIN THE PERIOD LIMITED UNDER SUB-SECTION(1) THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST(ONE) PER CENT FOR EVE RY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING FROM THE D AY IMMEDIATELY FOLLOWING THE END OF THE PERIOD MENTIONED IN SUB-SE CTION(1) AND ENDING WITH THE DAY ON WHICH THE AMOUNT IS PAID. PROVIDED THAT WHERE AS A RESULT OF AN ORDER UNDER SECTION 1 54 OR SECTION 155 OR SECTION 250 OR SECTION 254 OR SECT ION 260 OR SECTION 262 OR SECTION 264 (OR AN ORDER OF THE SETTLEMENT COMMI SSION UNDER SUB- SECTION(4) OF SECTION 245D) THE AMOUNT ON WHICH IN TEREST WAS PAYABLE UNDER THIS SECTION HAD BEEN REDUCED THE INTEREST S HALL BE REDUCED ACCORDINGLY AND THE EXCESS INTEREST PAID IF ANY S HALL BE REFUNDED. HENCE IN VIEW OF THE SPECIFIC PROVISO TO SECTION 2 20(2) THE INTEREST HAD RIGHTLY BEEN COMPUTED BY THE AO. 6. LD COUNSEL FOR THE ASSESSEE HAS RELIED ON THE DE CISION OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF N.P.GUPTA & KISHAN SWAROO P CHAUDHARI (2008) 15 DTR (RAJ) 182. HOWEVER THE SAID DECISION HAS NO APPLICABILI TY TO THE FACTS OF THE CASE AS IN THE SAID DECISION THE ASSESSMENT HAD BEEN SET ASIDE BY THE TRIBUNAL AND PURSUANT TO THAT FRESH ASSESSMENT WAS FRAMED. WHEN AN ASSESSMENT IS SET ASIDE WITH THE DIRECTION TO FRAME FRESH ASSESSMENT DENOVO THE ORIGINAL DEMAND ALSO GETS ERASED BUT IF THE ASSESSMENT ORDER PER SE HAS NOT BEEN SET ASIDE AND ONLY ON CERTAIN ISSUES MATTER IS RESTORED TO THE AO WHILE RETAINING THE OTHER ISSUES DEALT IN THE ASSESSMENT ORDER THE ORIGINAL DEMAND IS TO BE REVISED ACCORDINGLY. IN T HE PRESENT CASE THE DEMAND HAS ONLY I.T.(SS)A NO.19/MUM/2009 BLOCK PERIOD: 1987-88 TO 1997-98 3 BEEN REVISED IN VIEW OF THE SUBSEQUENT DECISION OF THE TRIBUNAL. ACCORDINGLY WE UPHOLD THE ORDER OF LD CIT (A). 7. IN THE RESULT APPEAL FILED BY THE ASSESSEE STAN DS DISMISSED. PRONOUNCED ON 6 TH AUGUST 2010 SD/- (VIJAY PAL RAO) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANT MEMBER) MUMBAI DATED 6 TH AUGUST 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUMBAI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI I.T.(SS)A NO.19/MUM/2009 BLOCK PERIOD: 1987-88 TO 1997-98 4 DATE INITIALS 1. DRAFT DICTATED ON 15.7.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 15.7.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER I.T.(SS)A NO.19/MUM/2009 BLOCK PERIOD: 1987-88 TO 1997-98 5