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TMI Blog2014 (2) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the so called legal issue are already on the record of the Tax Authorities - The expression "Record" means the record of the year under consideration and not the history of the assessee spanning over several years - Since the issue was not urged before the Tax Authorities and the facts concerning the same are not established or available before the AO/CIT(A), the assessee cannot be permitted to raise additional ground for the first time before the Tribunal - the facts were not on record of the Tax Authorities for the assessment year - the assessee is making counter claims would suggest that the facts are not finally settled and on such an issue additional ground cannot be admitted - Decided partly in favour of Assessee. - ITA No. 392 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressing grounds 1, 2 and 3. Accordingly grounds 1, 2 and 3 are dismissed. 4. Vide ground No. 4 the assessee contends that the CIT(A) erred in not granting relief on account of interest expenses claimed by the assessee. As could be noticed from para 5.3 of the order of the CIT(A), on identical circumstances, in the case of assessee for A.Y. 2004-05 and 2005-06 and also in the case of a related party, Shri Hitesh Mehta for A.Y. 2005-06, the appeals filed by the assessee's were dismissed. At the time of hearing the learned counsel for the assessee placed before me a copy of the order passed by the ITAT "H" Bench, Mumbai in the case of Shri Hitesh Mehta wherein the matter was set aside to the file of the CIT(A) to adjudicate afresh. 5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Special Court dated 30.04.2010 in MP No. 41 of 1999, the assets under consideration and the consequential income belongs to Shri Harshad S. Mehta and hence the income assessed by the Assessing Officer ought to have been taxed in the hands of Shri Harshad S. Mehta and not in the hands of the appellant." 10. In the petition for seeking admission of the additional ground the assessee submitted that the assessee company is an associated entity promoted by Late Shri Harshad Mehta and his family members. He is a notified person under the Provisions of the (Trial of Offences Relating to Transactions in Securities) Act. The custodian appointed under the Special Court Act filed a petition against the legal heirs of Late Harshed Mehta se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of National Thermal Power Co. Ltd. Vs. CIT 229 ITR 383 the legal ground was admitted but, however, observed that this ground is purely academic in nature for the reason that if the Hon'ble Supreme Court decides on the aid issue it has to be followed by every authority and therefore no direction is required to be given by the AO in this respect. The learned counsel for the assessee submitted that this issue has come up in the other group of assessees wherein the issue was disposed of on the same lines, that too after admitting the additional ground and hence, in the instant case also, the ground may be admitted and disposed of accordingly. 12. The learned counsel appearing for the Revenue initially admitted that the issue stands covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the income from an attached asset cannot be considered as income of the appellant, the appellant cannot be expected to earn any income arising out of the asset, which also pertains to Late Harshad S. Mehta. It was also highlighted that the order of the Hon'ble Special Court is subject matter of dispute before the Hon'ble Supreme Court. It was also submitted that CIT, Central Circle-II is a party to the proceedings before the Special Court and in fact the Revenue has actually collected much more belonging to the other notified persons to meet the liabilities of Late Harshad Mehta and thus the facts cannot be said to be not on record in the present case. He also relied upon the decision of the ITAT Special Bench in the case of All Carg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that but for the separate order of attachment the assessee company is a separate legal entity. In other words, the assessee on the one hand admits that it is a separate legal entity assessable to tax but on the other hand it makes a converse claim by way of additional ground that the assets and liabilities belong to Late Harshad Mehta and hence the income of the assessee company also should not be assessed in its hands; in my considered opinion the assessee cannot be permitted to blow hot and cold. At any rate, the matter is subjudice before the Hon'ble Supreme Court and thus it cannot be said that the facts are settled finally. None of these issues were taken up before the AO or the CIT(A) and hence it cannot be said that the facts conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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