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TMI Blog2017 (10) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... same and added the differential amount to the income of the assessee, which was not fair and proper. Therefore, we are of the considered opinion that the addition has been made merely on the basis of doubts, conjectures and surmises without supporting the same with any cogent material. Hence, finding the stand of Ld. CIT(A) fair and reasonable, we see no reason to interfere with the same and inclined to dismiss revenue’s appeal qua this ground. X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.71 Lacs & ₹ 2.67 Lacs respectively against Flat No. 34A, Madhuli, Worli, Mumbai which was purchased during the year. It was noted that the flat could only be used for residential purposes whereas the assessee claimed depreciation against the same on the premises that the same was being used for business Aatur Holdings Pr ivate Limi ted purposes. No evidence could be produced by the assessee to support this contention which led to impugned disallowances. Finally, the income of the assessee was computed at ₹ 46.06 Lacs. 3. Aggrieved, the assessee contested the same without any success before Ld.CIT(A) vide impugned order dated 22/12/2004. Qua depreciation claim, the assessee placed reliance on Tribunal's decision for AY 1995-96, 1996-97 & 1997-98 in ITA No. 4065-66-67/Mum/2002 dated 31/10/2005. However, Ld. CIT(A) found the same factually different since in those years, it was noted by the Tribunal that the said premises was being used for preparation of various representations to Government authorities and compiling details required by the legal consultants and government agencies. Since, these findings were missing in the impugned AY and the assessee could not prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business purposes of the assessee and therefore failed to fulfill the primary conditions of Section 32 & Section 37. The Ld. CIT(A) has rightly distinguished the facts of AY 1995-96 to 1997-98 since in those years, it was found that the said premises was being used for the purpose of compiling various representations to be filed before various government agencies. Therefore, finding no substance in assessee's Ground Numbers 1 & 2, we dismiss the same. 7. Qua charging of interest u/s 234A/B/C, the Ld. AR fairly conceded that the issue stood covered squarely against the assessee by the order of this Tribunal for AY 2007-08 to 2009-10. However, in terms of the said order, the credit of tax deductible at source was available to the assessee before computing the interest component u/s 234. We have perused Tribunal's order in assessee's own case in ITA Nos. 846 & others/Mum/2010 dated 23/09/2015 and find that issue has already been decided by the Tribunal in assessee's own case in the following manner:- 6.Last ground of appeal for all the three assessment years pertains to levy of interest u/s.234A, 234B and 234C of the Act. Before us, the representatives of both the sides agreed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Respectfully, following the above order we restore back the issue to the file of the AO who would levy the interest as per the provisions of section 234 of the Act and give credit for the TDS amounts. Ground no.6 for all the three AYs.stands partly allowed, in favour of the assessee. Respectfully following the decision of coordinate bench in assessee's own case, we 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. Resultantly, Ground No. 3 stands dismissed whereas Ground No. 4 stands allowed for statistical purposes. In nutshell, this appeal stands partly allowed for statistical purposes. 8. Now, we take up assessee's appeal ITA No. 947/Mum/2015 for AY 1992-93 which contest the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and finally, the income was re-determined at ₹ 317.86 Lacs. The appeal against the same was dismissed by Ld.CIT(A) on 31/07/2003 in limine and accordingly, the same was further contested before this Tribunal vide ITA No. 5042/Mum/2005 dated 31/03/2006 where the order of Ld.CIT(A) was set aside and restored back to the file of Ld. CIT(A) for re-adjudication. 10.3 The Ld. AO, pursuant to the directions of the Tribunal qua original assessment order, passed fresh order of assessment on 26/12/2006 where the income was re-determined at ₹ 272.70 Lacs. The assessee filed appeal against the same before Ld. CIT(A) which is impugned order dated 05/11/2014. Hence, the impugned order addresses the issues arising out of assessment order passed u/s 143(3) read with Section 147 on 26/12/2006 as well as reassessment order passed on 20/03/2003. The assessee is aggrieved by action of Ld. CIT(A) in confirming the applicability of Section 220(2). The Ld. AR contended that the interest u/s 220(2) should be computed only from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. The assessee has also filed additional grounds of appeal vide letter dated 17/07/2017 which do not require appreciation of new set of facts and no serious objections against the same are raised by the revenue and therefore the same are taken on record. The additional grounds are related with disallowance of ₹ 99,225/- u/s 14A and charging of interest u/s 234A/B/C. The grounds pertaining to charging of interest u/s 234A/B/C are identical as raised in AY 1991-92. Therefore, taking the same stand, we dismiss assessee's grounds so far as it relates to charging of interest u/s 234. However, the assessee stands benefitted to the extent of tax deductible at source for the purpose of computation as already concluded by us in AY 1991-92. Therefore, the computation of the same is restored 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The assessee earned profit on sale of Shares as ₹ 6,41,459/-, against which Ld. AO has allowed estimated expenditure of 10% i.e. 64,145/- in the absence of proper books of accounts. The Ld. CIT(A) has confirmed the same, against which the assessee has raised this ground. On factual matrix, we find the same to be fair and logical estimation since no books were maintained by the assessee and therefore, see no reason to interfere with the same. This grounds stands dismissed. 17. Ground Numbers 4 & 5 are related with chargeability of interest u/s 234A/B/C. These grounds are identical worded grounds as raised in earlier years. Therefore, taking the same stand, while upholding the chargeability of interest, the matter is restored back to the file of Ld. AO for recomputation, on similar lines. Resultantly, Ground No. 4 stands dismissed whereas Ground number 5 stands allowed for statistical purposes. Resultantly, the appeal of the assessee stands partly allowed for 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990, on 14/09/1990 itself, and the broker vide his letter dated 11/12/2006, explained the circumstances in which the said transaction had taken place and the counter party was M/s Nagardas Lalji. As regards the contention of the AO that there is no delivery of 7500 shares to M/s Nagardas Lalji and there was no possibility to get information from this party after so many years, it appears that the assessee had submitted evidence in the form of pay-in slip of clearing house of Bombay Stock Exchange from M/s Ashwin S.Mehta, evidencing delivery of shares by the said broker. Therefore, as far as this transaction is concerned, the contention of the learned AO does not appear to be correct. On the contrary, the contention of the learned AR appears to be justified. 12. In view of the above facts, the variation in purchases and sales of shares worked out by the AO becomes unsustainable. The same is, therefore, directed to be deleted. This ground of appeal 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 document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm has received the credit of ₹ 1,08,75,000/- as a consideration of sale of 7500 shares of ACC @Rs.1450/- per share which fact is also recorded on the pay-in statement. It is evident therefrom that the sale was concluded on behalf of your company prior to 30.08.1990 when the prevalent prices were in the vicinity of or even less than ₹ 1400/- per share. The contract for sale was passed late on 14.09.1990. Thus the sale consideration has been received by my brokerage firm on behalf of your company at the contracted price and there is no price variation whatsoever. In support of my contention, I am pleased to enclose a statement of the brokerage firm of M/s Nagardas Lalji as is forming part of my books of accounts at Exhibit B. Upon perusal of the same, we find that the assessee, to some extent, could substantiate the reflected sale price whereas Ld. AO without controverting the same in any manner with any cogent material, took the average of prevailing price of 14/09/2009 and applied the same and added the differential amount to the income of the assessee, which was not fair and proper. Therefore, we are of the considered opinion that the addition has been made merely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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