TMI Blog2017 (10) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that:- Uphold charging of interest u/s 234 and restore the issue on similar line to the file of Ld. AO for re-computation of interest u/s 234. charging of interest u/s 220(2) - Held that:- Upon perusal of the same, we find that Ld. CIT(A) has clinched the issue in right perspective on the facts of the case and the same is quite logical and fair one. From the chronology of event, we find that only the original assessment order was set aside by the Tribunal whereas the reassessment order remained intact. Therefore, the peculiar situation gave rise to separate periods for the purpose of computation u/s 220(2). CIT(A) understood the same in the context of judicial pronouncements as well as statutory provisions including CBDT circular and the same being, quite fair and logical, require no interference on our part. Hence, while confirming the same, we dismiss, this ground of assessee’s appeal. Disallowance u/s 14A - Held that:- AO has already adjusted the total expenses claimed by the assessee for various disallowances already made and arrived at the impugned disallowance. The Ld. CIT(A) after considering the span during which the related transactions were carried out, computed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai [CIT(A)] Appeal No. CIT(A)-52/DC/ACCC4( 3)/119/2009-10 dated 22/12/2014 . The assessment was framed by Ld. Deputy Commissioner of Income Tax, Circle-31, Mumbai [AO] u/s 144 on 26/12/2006. The assessee is in second round of appeal before us. The matter, in the first round of appeal before this Tribunal vide ITA No. 4147/M/1995 dated 25/10/1995, was restored back to the file of Ld. AO for de-novo adjudication. 2.2 The assessee has raised the following effective grounds of appeal:- 1. The Ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the disallowance of depreciation amounting to ₹ 1,71,339/- in respect of premises at Worli and Bandra held by the appellant. 2. The Ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the disallowance of repairs and maintenance expenses amounting to ₹ 2,67,473/- in respect of premises at Bandra, Mumbai held by the appellant. 3. The Ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the levy of interest u/s 234A, 234B and 234C of the Act. 4. The Ld. Commissioner of Income Tax (Appeals) has erred in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gencies. Since, these findings were missing in the impugned AY and the assessee could not prove the factum of carrying of any business activity at the said premises with documentary evidences, Ld. CIT(A) confirmed the stand of Ld. AO. The assessee also contested imposition of interest u/s 234A/B/C on the premises that it was notified entity and therefore, the same could not be applied to the assessee. However, finding that interest provisions were mandatory in nature in view the judgment of Apex Court rendered in CIT Vs. Anjum H.Ghaswala, Ld. CIT(A) dismissed the same. Aggrieved, the assessee is in further appeal before us. 4. The Ld. Counsel for Assessee [AR], reiterating the contentions drew our attention to the documents placed in the paper book and contended that the assessee company carried out Board Meeting at the said premises and therefore, depreciation and repair expenses against the same were admissible. Per Contra, Ld. DR contended that the assessee has failed to substantiate his claim in this regard in any manner and the premises in dispute was always being used for residential purposes only by the directors of the assessee company. 5. We have heard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains to levy of interest u/s.234A, 234B and 234C of the Act. Before us, the representatives of both the sides agreed that identical issue was decided in the cases of Topaz Holdings Pvt.Ltd.(ITA/2146/Mum/2013,AY.2001-02 dtd.18.06.2014) and Eminent Holdings Pvt.Ltd.(ITA/2139/Mum/2013,AY.2002-03,dated 18.06.2014), that the Tribunal had upheld the levy of interest in principal, that it had set aside the issue for calculating the interest to the file of the AO with direction that the tax deducted as source should be reduced while calculating the interest. We find that the issue was discussed in the case of Eminent Holdings Pvt.Ltd (supra) as under: 3.Next ground of appeal is about levy 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 appointed 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. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed for statistical purposes. 8. Now, we take up assessee s appeal ITA No. 947/Mum/2015 for AY 1992-93 which contest the order of Ld. Commissioner of Income Tax(Appeals)-40, Mumbai [CIT(A)] Appeal No. CIT(A)-40/DCIT-CC-31/121 114/2009-10 dated 05/11/2014 which is a common order against quantum assessment order dated 20/03/2003 passed u/s 144 read with Section 147 and quantum assessment order dated 26/12/2006 passed u/s 143(3) read with Section 147 The registry has noted that the appeal is time barred by one day and the assessee, vide affidavit dated 26/02/2015, explaining the reasons has requested for the condonation of the same. We find that the delay has occurred mainly due to obtaining appeal fees from the custodian. No serious objections against the same are raised by the revenue. Therefore, while condoning the delay, we proceed to dispose-off the same on merits. 9. Ground Nos. 1, 2 3 are related with disallowance of depreciation and repair expenses against premises situated at Worli Bandra . The assessee, on similar lines as in AY 1991-92, has suffered disallowance of depreciation for ₹ 2,78,309/- ₹ 13,821/- respectively against pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of de-novo assessment i.e. 26/12/2006 whereas Ld. DR supported the stand of Ld. CIT(A). 10.4 We have carefully perused the same. At the outset, we would like to reproduce the stand of Ld. CIT(A) as contained in para-86 of the impugned order which reads as follows:- 86. Thus, there is a uniformity of opinion on this issue in the decision of Hon ble Bombay High Court as well as the decision of Hon ble Mumbai Tribunal, as also in CBDT s circular No. 334 dated 3/4/1982. Accordingly, it is held that no interest u/s 220(2) can be charged based on the original demand notice, if a fresh assessment is made pursuant to the directions of the appellate authority. Even in the present case, pursuant to the order of the Hon ble Tribunal, the assessment made on 31/1/1995 was set aside and a fresh assessment order was made on 26/12/2006. Further, my learned predecessor has also allowed appeal in case of Hitesh Mehta for A.Y.1992-93, vide order dated 30/12/2011, and other persons of the same group, through separate orders. Since the issue is now squarely covered by the decision of Hon ble Bombay High Court in case of CIT V. M/s Chika Overseas P.Ltd. (supra), the AO id directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the file of Ld. AO on similar lines. 12. The only issue remaining to be decided is disallowance of ₹ 92,225/- u/s 14A. The same has been discussed at Para Number-4 in the quantum order. It was noted that the assessee earned tax free interest income of ₹ 45 Lacs and the same constituted approx. 51% of total receipts of the assessee and hence called for disallowance u/s 14A. As against this, the assessee claimed expenditure of ₹ 15.36 Lacs. After making various adjustments in the expenditure, Ld. AO computed the said disallowance at ₹ 6,07,261/- being approx. 51% of balance expenditure of ₹ 11,90,708/-. The Ld. CIT(A), after considering the factual matrix, restricted the same to 1/12th of total expenditure of ₹ 11,90,708/- which came to ₹ 90,225/-. The Ld. AR pleaded that the tax free income was earned only during short span of time and the impugned disallowance against the same was on the higher side whereas Ld. DR contended that the factual matrix has duly been considered by the Ld. CIT(A) and therefore, the same was fair and reasonable. 13. After due consideration of the same, we find that Ld. AO has already adjusted the tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statistical purposes. 18.1 Now, we take up revenue s appeal ITA No. 1268/Mum/2015 for AY 1991-92 which contest the order of Ld. Commissioner of Income Tax (Appeals)-52, Mumbai [CIT(A)] Appeal No. CIT(A)-52/DC/ACCC4( 3)/119/2009-10 dated 22/12/2014 . The assessment was framed by Ld. Deputy Commissioner of Income Tax, Circle-31, Mumbai [AO] u/s 144 on 26/12/2006. The only grievance of the revenue pertains to deletion of addition of ₹ 30 Lacs on account of suppression of Sale price of 7500 Shares of ACC Limited . 18.2 The relevant facts qua the same are discussed in Para-4 of the quantum assessment order. During assessment proceedings, it was noted that the assessee earned Share Trading Income of ₹ 10,75,114/- on certain delivery based Share transactions which were routed through the broking concern namely Ashwin S.Mehta , a proprietary concern of one of the director of the assessee company. There was no actual movement of fund and the transactions were entered through journal entries by way of debit and credit, the net result of which was profit of ₹ 10,75,114/- to the assessee and the same was reflected in the Profit Loss Account. 18.3 After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, accordingly, allowed. 18.5 The Ld. DR contested the stand taken by Ld. CIT(A) and contended that large variation was noticed in sale / purchase rates reflected by the assessee which could not be substantiated with proper documentary evidences and there were discrepancies in the transactions. The Ld. DR further contended that the confirmation from the respective parties after the gap of more than 15 years was not possible. Per contra, Ld. AR placed reliance on the stand of Ld. CIT(A) and contended that the transactions were duly confirmed by the broker firm and backed by supporting evidences and therefore, the additions were rightly been deleted by Ld. CIT(A). 18.6 We have carefully considered the rival contentions and peruse relevant material on record. The only dispute is with respect to sale price of 7500 shares of ACC sold by the assessee. The allegation of the Ld. AO is that the shares were sold on 14/09/2009 at prices much below than prevailing market prices whereas the contention of the assessee is that the sale transactions was carried out through broker firm and the same took place much before 30/08/1990 and the reflected prices are duly supported by the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
