BANIHAL HOLDINGS P. LTD,AHEMEDABAD vs. DCIT 8(1), MUMBAI

O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A), Mumbai, for the assessment year 2005-2006, in the matter of order passed u/s.143(3) of I.T.Act, on the following grounds :-

3. In law and in the facts and circumstances of the Appellant's case, the learned Commissioner of Income-tax (Appeals) has grossly erred in confirming assessment of interest on Optionally Fully Convertible Premium Notes (OFCPNs) of Nirma Industries Ltd. for Rs.21,71,750. Learned CIT(A) has erred in holding that there is no provision in law that income is assessed at lower figure than the returned income.

2. The made an addition of Rs.1,67,540/- u/s.14A which was confirmed by CIT(A) in the impugned order.

No.2 & 3, the Revenue has sought to assail the decision of the CIT(Appeals) in directing the Assessing Officer to exclude accrued interest of Rs.28,18,197/- from the total income. The said amount reflected interest accrued on Optionally Fully Convertible Premium Notes(OFCPNs) of M/s. Nirma Industries Ltd. acquired by the assessee.

8. In this context, the brief facts are that the assessee company invested in 1612 Optionally Fully Convertible Premium Notes(OFCPNs) of Rs. 25,000/- each for Rs.4.03 crores of M/s. Nirma Industries Ltd. The issue price of OFCPN was Rs.25,000/- each and the face value thereof of Rs.33,750/- was to be paid after a tenure of five years. The holder of OFCPNs had option to invest in the equity shares of M/s. Nirma Industries Ltd. and no interest was payable till maturity. The interest accrued on investment in OFCPN 3 of M/s. Nirma Industries Ltd. for the period ended 31/03/2005 was determined at Rs.28,14,197/-and was offered in the return of income with a qualifying Note attached to return of income, which read as under:- "The Return of Income includes interest income of Rs.28,14,197 an investment in OFCPN in Nirma Industries Ltd. held as 31.03.05. The said income is offered to avoid litigation without prejudice to the validity of the circular No.2/2002 F.No.149/235/2001-TPL dated 15/02/2002 issued by CBDT." 8.1 Since the assessee company had offered the said amount as income in its return of income, the Assessing Officer treated it as part of the total income without making any discussion on the stand of the assessee stated in the aforesaid note accompanying the return of income. 8.2 Before CIT(Appeals), assessee company assailed the inclusion of Rs.28,14,197/- in the total income on the ground that such income could not be taxed on accrual basis. The CIT(Appeals) referred to a decision of the Ahmedabad Bench of the Tribunal in the case of Kissan Discretionary Family Trust dated 02/11/2007 for assessment year 2003- 04, wherein on identical issue the stand of the assessee was upheld. Accordingly, CIT(Appeals) directed the Assessing Officer to exclude the impugned interest income on OFCPNs from the total income. 8.3 On this aspect, a preliminary point made out by the Ld. Representative for the respondent assessee was that the Grounds of appeal as formulated by the Revenue (reproduced above) does not reflect any grievance with regard to the merit of the decision of the CIT(A) to exclude the impugned sum from the total income. Explaining the said position the Ld. Representative for the assessee pointed out that in the stated Grounds of Appeal, the grievance projected by the Revenue was that the said income was offered by the assessee itself in the return of income and that the final assessed income could not be less than the returned income. Apart there from, the Ld. Representative for the assessee also referred to the order of the Ahmedabad Bench of the Tribunal in the case of assessee itself for assessment years 2002-03 and 2003-04 vide ITA No.1259/Ahd/2007 dated 21/06/2013 and also for assessment year 2004-05 vide ITA No.1920/Mum/2009 dated 22/11/2013 to point out that similar issue has been decided in favour of the assessee. It was pointed out that in assessment year 2004- 05(supra) also, the objections of the Revenue was on similar lines. 8.4 In this background, the Ld. Departmental Representative merely reiterated the grievance projected in the Grounds of appeal No.2 &3 stated above.

9. Having considered the rival stands, in our opinion, no error can be found with the order of the CIT(Appeals) considering that his decision is in consonance with the decision of the Tribunal in the ITA No. 3498/MUM/2011 C.O. No.08/mum/2016 (Assessment Year : 2005-06) assessee's own case for assessment year 2002-03 and 2003-04 dated 21/06/2013 and for assessment year 2004- 05(supra) dated 21/11/2013, copies of which had been placed on record. The orders of the Tribunal continue to hold the field and, therefore, in our view the impugned decision of the CIT(Appeals) deserves to be affirmed. We hold so.” 7. As the facts and circumstances during the year are exactly same, respectfully following the order of the Tribunal in assessee’s own case, ground no.3 of assessee’s appeal is allowed. 8. In the result, appeal of the assessee is allowed in part. Order pronounced in the open court on this 28/07/ 2016. Sd/- Sd/- (SANDEEP GOSAIN) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक Dated 28/07/2016 प्र.कु.मभ/pkm, नन.स/ PS आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent. 2. आमकय आमुक्त(अऩीर) / The CIT(A), Mumbai. 3. आमकय आमुक्त / CIT 4. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 5. गार्ा पाईर / Guard file. 6. सत्मावऩत प्रनत //True Copy// आदेशाि सार/ BY ORDER,