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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
Before: Shri B.R. Baskaran (AM)
2 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd. O R D E R
All these assessees belong to Harshad Mehta Group and they are notified persons under special court “Trial of Offences relating to transactions in Securities" Act, 1992”. All the assets including bank accounts of these assessees have been attached and vested in the hands of custodian appointed under the above said act. All the appeals were heard together, since the issues urged by them are identical in nature. Accordingly, all these appeals are being disposed of by this common order, for the sake of convenience.
The appeals filed by these assessees are barred by limitation as detailed below :- (a) Orion Travels Pvt. Ltd. : 383 days (b) Aatur Holding Pvt. Ltd. : 391 days (c) Harsh Estates Pvt. Ltd. : 391 days (d) Eminent Holdings Pvt. Ltd. : 760 days All these assessees have filed an application requesting the bench to condone the days on the ground that there was delay in releasing funds for remitting appeal fees by the custodian. It is submitted that the assessee took the initiative to address letters and reminders to the custodian for release of funds for remitting appeal fees in connection with filing the present appeals. The assessee has furnished a chart explaining chronology of events that has taken place in this regard in all the cases. For the sake of convenience, I extract below the chronology of events narrated in the case of Orion Travels Pvt. Ltd. :-
3 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
4 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
5 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
Identical charts have been filed by other three assessees also.
Learned AR submitted that for AY 2004-05 and 2005-06 also, the delay had occurred on identical reasons in the case of Orion Travels Pvt. Ltd and the Tribunal, vide its order dated 16.4.2014 in & 4024/Mum/2011, has condoned the delay accepting identical explanations of the assessee. He further submitted that the delay had also occurred on identical reasons in the case of other group companies namely Growmore Research & Asset Management Ltd., Growmore Exports Ltd. etc and the Tribunal vide its order dated 17.12.2007 has condoned the delay by following the decision rendered by Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamoorthy (AIR 1998 S.C. 3222). Accordingly, learned AR submitted that the delay has occurred in these cases also for reasons beyond the control of the assessee and accordingly prayed that the delay may be condoned.
4. On the contrary, standing counsel strongly opposed the plea of the assessee. He submitted that these assessees are well aware of the disruptions and difficulties since the day their business got suspended in 1992. These
6 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd. Assessees should have taken enough precautions to get fund for filing the appeals well in advance. Accordingly he opposed the petition filed by these assessees.
Having heard the rival submissions and upon considering the decision rendered by the coordinate Benches in assessee’s group cases, I am of the view that the delay has occurred for the reasons beyond the control of the assessees. Accordingly, I condone the delay in filing these appeals and proceed to dispose of them on merits.
The first issue contested in all these appeals relate to the disallowance of interest expenditure while computing income under normal provisions of the Act. In the case of M/s Eminent Holdings P Ltd, the assessee is also contesting the book profit computed u/s 115JB of the Act. However the said issue also goes with the disallowance of interest expenditure.
The Ld A.R submitted that this issue has been set aside to the file of Ld CIT(A) by the Tribunal in other group cases. In this regard, he furnished a copy of order dated 25-08-2015 passed by the division bench in the case of M/s Fortune Holdings P Ltd in 1460, 1459/Mum/2011 & others. I have gone through the said order and for the sake of convenience, I extract below the relevant observations made by the Tribunal on an identical issue:-
“3. The grounds urged in AY 2008-09 to 2010-11 are identical in nature. At the time of hearing, the Ld A.R pressed the grounds relating to the following issues:- a) Rejection of claim of interest expenditure under the normal provisions of the Act; b) Rejection of interest liability under section 115JB of the Act; and c) Computation of interest u/s 234A, 234B and 234C of the Act. Accordingly, the remaining grounds and also the additional ground urged by the assessee are dismissed as not pressed.
7 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
4. The issue relating to rejection of interest claim in AY 2004-05 to 2006- 07 and also the issues relating to interest listed as (a) and (b) above in AY 2008-09 to 2010-11 go together. The assessee is one of the notified entities coming under Harshad Mehta group against whom stock scam charges are pending. With regard to above said issue relating to rejection of interest claim, the ld. A.R submitted that these issues are being set aside by the Tribunal to the file of ld. CIT(A) for fresh adjudication in all other group cases belonging to Harshad Mehta.
5. The ld. Counsel submitted that the identical issues were also considered by the Tribunal, vide its order dated 22-4-2015, in the assessee’s own case in 6840,6830 /Mum/2013 relating AY 2001-02 to 2003-04 and the issues were restored to the file of the Ld CIT(A). He submitted these issues may also be restored to the file of the Ld CIT(A) with similar directions. On a perusal of the order passed by the Tribunal for AY 2001-02 to 2003-04, referred above, we notice that the Tribunal has followed the decision rendered in the case of M/s Growmore Leasing and Inv.Ltd V/s ACIT (ITA No.5135 and 5136/Mum/2012 (AY- 2007-08 and 2009-10) and ITA No.2151/Mum/2013 (AY-2010-11), wherein also an identical issue was discussed with the following observations:
“3. Ground No. 4 relates to the disallowance of interest expense. The Ld. Counsel for the assessee brought to our notice that the decision relied upon by the Ld. CIT(A) while disposing this ground has been set aside by the Tribunal to the file of the Ld. CIT(A).
The Ld. Departmental Representative could not bring any distinguishing decision in favour of the Revenue.
5. We have carefully perused the orders of the authorities below. While disposing the ground relating to the disallowance of interest, we find that the Ld. CIT(A) has followed the findings given in the case of Eminent Holdings Pvt. Ltd. We find that the Tribunal in the case of Eminent Holdings in 2140 and 2141/Mum/2013 have followed the decision of the Tribunal given in common group case of Hitesh S. Mehta at para 2.3 of the order and restored the matter to the file of the Ld. CIT(A) for fresh adjudication. Respectfully following the findings of the Co ordinate Bench, we restore this issue to the files of the Ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee.
8 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
6. Before closing this issue, the Ld. Counsel for the assessee pointed out that the Ld. CIT(A) has held that the issue of interest expenditure is pending before the Hon’ble Special Court. It is the say of the Ld. Counsel that the proceedings in which the said issue of interest was issued by the custodian have been already concluded which fact has already been recorded by the Ld. CIT(A) in the impugned order. We, therefore, direct the Ld. CIT(A) to consider this fact while deciding the issue afresh. The Ld. CIT(A) may also direct for the taxing of income in the hands of the recipient (family members) in accordance with the method of accounting followed by them and as per the provisions of the law. Ground No. 4 is treated as allowed for statistical purpose”.
By following the above said decision, the Tribunal restored the matter to the file of the Ld CIT(A) with similar directions. Since the facts prevailing in the instant case is also identical in nature, after hearing both the parties, the above mentioned issues are restored to the file of the ld. CIT(A) with a similar directions given by the Tribunal in the case of M/s Growmore Leasing & Inv. Ltd (supra).”
Consistent with the view taken in the above said cases, I set aside the orders passed by Ld CIT(A) on this issue in all the appeals under consideration and restore the same to the file of Ld CIT(A) with similar directions given by the Tribunal in the case of M/s Growmore leasing & Invt. Ltd (supra).
The next common issue relates to charging of interest u/s 234A, 234B and 234C of the Act. Identical issue has been adjudicated by the division bench in the case of Fortune Holdings P Ltd (supra) and for the sake of convenience, I extract below the relevant observations made in that case:- “10. With regard to the second limb, the Ld A.R submitted that the interest u/s 234B and 234C of the Act should be computed, after deducting the tax deductible at source from the income of the assessee. In support of this contention, he invited our attention to the decision rendered by the Co- ordinate Bench of the Tribunal in the assessee’s own case for AY 2001-02 to 2003-04 (supra). A perusal of the above order of the Tribunal, we notice that this issue has been disposed of with the following observations:
“8. Apropos Ground No.4 of all the three appeals, this issue was stated to be covered by the decision of Tribunal in group case namely M/s.Topaz Holding Pvt. Ltd. vs. ACIT, copy of this decision is filed at page 11 to 13 of the paper book. This issue is decided vide para 3 to 3.1 and the same is reproduced as under:
9 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd.
“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. and Cascade Holdings Pvt. Ltd. had held that the provisions of sections 234A, 234B and 234C of the Act were mandatory and were applicable to the notified entities also, that the assessee was in the process of filing an appeal against the said order before the Hon’ble Supreme Court, that the income earned in the year under consideration was subjected to provisions of TDS, that the changeability of the section 234A, 234B and 234C of the Act should be after considering the amount of tax deductible at source on the income assessed. The appellant relies in this regard on the following decisions. He relied upon the cases of Motorola inc. v. DCIT [95 ITD 269 (Del.(SB)], Sedco Fores Drilling Co. Ltd. [264 ITR 320],NGC Network Asia LLC [313 ITR 187] ,Summit Bhatacharya [ 300 ITR (AT) 347 (Bom)(SB)], Vijal Gopal Jindal [ITA No. 4333/Del/2009] & Emillo Ruiz Berdejo [320 ITR 190 (Bom)].DR relied upon the cases of Devine Holdings Pvt. Ltd.
3.1. We have heard the rival submissions and perused the material before us. We find that in the case of Devine Holdings Pvt. Ltd. Hon’ble Bombay High Court has held that provisions of section 234A, 234B and 234C were applicable to the notified person also. Therefore, upholding the order of the FAA to that extent, we hold that provisions of section 234 of the Act are applicable. As far as calculation part is concerned, we find merits in the submission made by the assessee. Therefore, we are restoring back the issue to the file of the AO for fresh adjudication who would decide the issue after considering the amount taxed deductible at source on the income assessed and after affording a reasonable opportunity of hearing to the assessee. Ground no. 5 is allowed in part in favour of the assessee.
“8.1 In this view of the situation, after hearing both the parties the issue raised in Ground No.4 for all the three appeals is restored back to the file of AO for fresh adjudication in the manner as 10 Orion Travels Pvt. Ltd. Aatur Holdings Pvt.Ltd. Har sh Estate Pvt. Ltd. Eminent Holdings Pvt. Ltd. directed in the aforementioned case. We direct accordingly. This ground is allowed in part in favour of the assessee.
By following the above said decisions of Tribunal, we set aside the matter of computation of interest u/s 234A, 234B and 234C to the file of the AO with similar directions.
9. Consistent with the view taken in the above said case, I set aside the matter of computation of interest u/s 234A, 234B and 234C of the Act to the file of the assessing officer with similar directions.
In the result, all the appeals of the assessees are treated as allowed for statistical purposes. Order has been pronounced in the Court on 11.9.2017.