DEEPIKA A, MEHTA,MUMBAI vs. DCIT CC 23, MUMBAI

The assessee has filed for the Asst. year 1992-93 against order dated 20/01/2012 passed by the Ld. CIT(Appeals)-40 Mumbai whereby the Ld. CIT(A) partly allowed the assessment order passed by the DCIT, Central Circle 23, Mumbai passed u/s 144 r.w section 254 of the Income Tax Act,1961( in short ‘the Act’) and ITA No. 6164/M/2012 for the Asst. year 1992-93 against order 9.8.2012 passed by the CIT(A)-40, Mumbai, u/s 154 of the Act. Since both the appeals pertain to the same assessee for the same assessment year, the same were heard together and are being disposed of by this common order for the sake of convenience.

ITA 1889/M/2012 for A.Y. 1992-93

3. The assessee challenged the assessment order before the Ld. CIT(A). The CIT(A) vide order dated 19/03/2003 granted only partial relief to the assessee. Feeling aggrieved by the said order, the assessee filed second appeal before the ITAT. The ITAT after hearing the parties considered it fit to set aside the matter back to the file of the AO to pass assessment order afresh. In compliance of order dated 31/8/2005 passed by the ITAT in the assessing officer passed assessment order dated 22.12.2006, determining the total income of the assessee at Rs. 29,53,91,212/-. The said order was further challenged by the assessee and the order under challenge has been passed by the Ld. CIT(A) in the second round of appeal by the assessee. The assessee has challenged the impugned order on the following effective grounds:-

“1. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in not appreciating that the Assessing Officer has not complied with the principles of natural justice either during the course of the assessment proceedings or during the course of the remand proceedings.

2. The Learned Commissioner of Income-tax (Appeals) has erred in law and in facts in not determining the income based on the final books of account thereby confirming the manner of determination of income by the Assessing Officer. The Learned Commissioner of Income-tax (Appeals) ought to have accepted book results shown by the appellant.

3. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in not appreciating that the correct quantity of purchase and sale of shares should be adopted while determining the income of the assessee.

4. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in upholding the working of unexplained investments relying on the various sources of information.

5. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in granting partial credit in respect of the purchases made by the appellant and rejecting the balance part on the ground that the evidences thereof were not filed during the original assessment proceedings but only during the set aside proceedings.

6. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in upholding the determination of unaccounted investment as per Annexure A-1 of the assessment order amounting to Rs. 24,85,56,416/-on the basis of information collected from various companies allegedly showing the shareholding of the appellant without appreciating that the copies of the said letters/information was neither provided to the appellant during assessment proceedings nor during remand proceedings.

without appreciating that the value of investment ought to have been determined at the cost of acquisition based on the dates of purchase.

4. At the very outset, the Ld. Counsel for the assessee submitted that the grounds raised

in the present appeal are identical to the grounds raised in the case of Hitesh S. Mehta, for the assessment year 1992-93 decided on 01.5.2013 by the Mumbai Tribunal. Therefore, the present appeal is squarely covered by the order passed by the ITAT Mumbai in case Hitesh S. Mehta (supra). On the other hand the Ld. Departmental representative (DR) relying on the findings of the authority below, submitted that there is no infirmity in the order passed by the Ld. Ld. CIT(A).

5. We notice that except ground No 8 and 14 of the present appeal, all the grounds are identical to the grounds raised by the assessee in the case of Hitesh S. Mehta (supra). The coordinate Bench after hearing the rival submissions has set aside the impugned order and restored all the issues to the file of the AO to pass assessment de novo after affording reasonable opportunity of being heard to the assessee, observing as under:

“4. We have heard the rival submissions and consider them carefully. We have also perused the copies of the order of the tribunal in case of Smt. Pratima Metha and the assessment passed in first round.

information on which basis, the AO wanted to made additions in the hands of the assessee. If the AO does not provide the material then in our view addition cannot be made. In view of above facts and circumstances, we set aside order of the authorities below and restore the issue to the file of the assessing officer to pass assessment de novo after affording reasonable opportunity of being heard to the assessee and as per observations of hours made in the order is above. We order accordingly.

7. As regards ground No 8 we find no merit in the contention of the assessee that the learned CIT (A) has erred in law and in facts in confirming the income from dividend and interest at Rs. 6 741033/–. As pointed out by the Ld. CIT(A) the appellant/assessee has produced the books of account before the assessing officer in set-aside proceedings and the AO after going through the same in the light of the contention of the assessee determined the dividend and interest income in question. However, no evidence to rebut the findings of the AO was produced either before the Ld. CIT(A) or before us. Therefore, we have no reason to reverse the finding of the CIT(A). Hence we uphold the findings of Ld. CIT(A) and dismiss this ground of appeal of the assessee.

8. So far as ground number 14 is concerned since all the grounds except ground No. 8 are being set aside to the file of AO for fresh adjudication, the AO may examine the same in accordance with law in the set aside proceedings.

ITA 6164/M/2012 for A.Y. 1992-93

This appeal has been filed by the assessee against order dated 09.8.2012 passed by the CIT(A)-40 Mumbai whereby the Ld. CIT(A) rejecting the objection raised by the assessee, directed the AO to enhance the income of the assessee by Rs. 42,49,266/- for the reason that M/s Vyas & Vyas, C.A., appointed by the Special Court to audit the books of account as on 08.6.92 in the case of Harshad S. Mehta and other notified entities including the present appellant/assessee, has pointed out the difference between the balance of parties in books of account of late Harshad S. Mehta and the books of account of the respective notified entities.

2. The assessee has challenged the impugned order on the following effective grounds:-

2. The Learned Commissioner of Income-Tax (Appeals) has erred in law and in facts in determining the alleged difference between the two accounts at Rs. 42,49,266/- and treating the same as income of the appellant.”