ITO WD 21(2)(4), v. VIMAL BUILDERS,

MA 177/MUM/2010 | 2004-2005
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 17719924 RSA 2010
Assessee PAN AACFV9391F
Bench Mumbai
Appeal Number MA 177/MUM/2010
Duration Of Justice 1 month(s) 30 day(s)
Appellant ITO WD 21(2)(4),
Respondent VIMAL BUILDERS,
Appeal Type Miscellaneous Application
Pronouncement Date 21-05-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted F
Tribunal Order Date 21-05-2010
Assessment Year 2004-2005
Appeal Filed On 22-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI B. RAMAKOT AIAH (AM) MA NO.177/MUM/2010 ARISING OUT OF ITA NO.618/M/08 ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER-21(2)(4) PRATYAKSHAKAR BHAVAN ROOM NO.503 5 TH FLOOR C-10 BANDRA KURLA COMPLEX BANDRA (E) MUMBAI-400 051. ..( APPLICANT ) VS. M/S. VIMAL BUILDERS 5 TH FLOOR MUCHHALA POLYTECHNIC ANAND NAGAR GHODBUNDER ROAD MUMBAI-400 601. ..( RESPONDENT ) P.A. NO. (AACFV 9391 F) APPLICANT BY : SHRI C.P. PATHAK RESPONDENT BY : SHRI R. R. VORA O R D E R PER D.K. AGARWAL (JM). THIS MISCELLANEOUS PETITION FILED BY THE REVENUE IS DIR ECTED AGAINST THE ORDER DATED 7.9.2009 PASSED BY THE TRIB UNAL IN M/S. VIMAL BUILDERS VS. DCIT IN ITA NO.618/M/08 FOR THE ASSE SSMENT YEAR 2004-05. MA NO.177/M/10 A.Y:04-05 2 2. IN THE MISCELLANEOUS PETITION IT HAS BEEN CONTENDED T HAT IN PARA -4 OF THE ORDER OF THE TRIBUNAL IT HAS BEEN HELD BY THE TRIBUNAL THAT THE ISSUE OF INTEREST QUALIFYING OF DEDUCTION U/S.80 I B(10) OF THE ACT IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF T HE TRIBUNAL IN ASSESSEE'S OWN CASE FOR EARLIER ASSESSMENT YEAR 2003-04 SUPRA AND ACCORDINGLY THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE . HOWEVER THE ABOVE DECISION OF THE TRIBUNAL IS NOT IN CONFORMITY WITH THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2003-04 AS IN TH AT YEAR THE TRIBUNAL HAS RESTORED BACK THE SIMILAR ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION BY THE ASSESSING OFFICER. I T WAS THEREFORE PRAYED THAT THE ORDER PASSED BY THE TRIBUN AL BE SUITABLY MODIFIED. 3. AT THE TIME OF HEARING THE LD. DR WHILE RELYING ON THE MISCELLANEOUS PETITION FILED BY THE REVENUE SUBMITS THAT THE ISSUE MAY KINDLY BE RECONSIDERED IN THE LIGHT OF THE MISCELLANEOU S PETITION FILED BY THE REVENUE WHICH WAS NOT OBJECTED TO BY THE LD. COUNSE L FOR THE ASSESSEE. 4. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND MER IT IN THE PLEA OF THE LD. DR. WE FURTHER FIND THAT THERE IS NO DISPUTE THAT IN THE INSTANT CASE THE TRIBUNAL WHILE DECIDING THE IMPUGNED ISSUE H AS FOLLOWED THE MA NO.177/M/10 A.Y:04-05 3 EARLIER ORDER OF THE TRIBUNAL. IN DCIT VS. M/S. VIM AL BROTHERS AND VICE VERSA IN ITA NO.3646 & 2730/M/07 FOR ASSESSMENT YEAR 200 3-04 VIDE ORDER DATED 28.7.2009 ON THE ISSUE OF INTEREST QUALIF YING FOR DEDUCTION U/S.80IB(10) HAS HELD VIDE PARA-11 OF ITS ORDER AS UNDE R :- .......WE THEREFORE FIND MERIT IN THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT A DIRECTI ON MAY BE GIVEN TO THE ASSESSING OFFICER TO GIVE AN OPPORT UNITY TO THE ASSESSEE TO PROVE THE NEXUS THAT BORROWED FUNDS ARE USED FOR DEPOSITS ON WHICH INTEREST HAS BEEN EARNED AND IF THE ASSESSEE CAN PROVE SUCH NEXUS THEN NETTING M AY BE ALLOWED. WE THEREFORE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ISSUE IN THE ABOVE LINES AND DECIDE THE ISSUE AS PER LAW. W E HOLD AND DIRECT ACCORDINGLY. SINCE IN THE YEAR UNDER CONSIDERATION THE TRIBUNAL WHI LE FOLLOWING THE AFORESAID ORDER HOWEVER WITHOUT SETTING ASIDE THE I SSUE DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE. THUS THERE IS AN APPAR ENT MISTAKE IN THE ORDER OF THE TRIBUNAL IN TERMS OF SECTION 254(2) O F THE ACT. ACCORDINGLY THE ORIGINAL OPERATIVE PORTION IN THIS REG ARD IN PARA-4 OF THE ORDER SHALL BE READ AS UNDER:- ...WE FIND THAT THE ISSUE OF INTEREST QUALIFYING OF DEDUCTION U/S.80 IB(10) OF THE ACT IS COVERED IN FA VOUR OF THE ASSESSEE WITH THE DECISION OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR EARLIER ASSESSMENT YEAR 200 3-04( SUPRA) AND ACCORDINGLY THE ISSUE IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATIO N WHO SHALL DECIDE THE SAME IN THE LIGHT OF THE DIRECTION AS MENTIONED BY THE TRIBUNAL IN ITS EARLIER ORDER DATE D 28.7.2009 SUPRA AFTER PROVIDING A REASONABLE OPPORT UNITY MA NO.177/M/10 A.Y:04-05 4 OF BEING HEARD TO THE ASSESSEE . WE HOLD AND ORDER ACCORDINGLY. 5. IN THE RESULT THE MISCELLANEOUS PETITION FILED BY T HE REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.5.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 21.5.2010. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. MA NO.177/M/10 A.Y:04-05 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 21.5.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 21.5.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 26.5.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER