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2014 (9) TMI 1178

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..... megre sum of 20/-. Further, we find that Late Shri Harshad S. Mehta has to receive more amount from the assessee therefore the difference cannot be treated as income of the assessee. It is not a case where the assessee is showing more amounts to be received from Late Shri Harshad S. Mehta. Further, it is an undisputed fact that the difference is only in respect of opening balances and with a difference of 31072/- pertaining to the year under consideration. We, therefore, restore this issue to the file of the A.O. for the limited purpose of verification of reconciliation of the difference between the opening balances and the closing balances relating to brokerage and lease rent. The assessee is directed to file necessary details. Levy of interest u/s 234A and 234B is mandatory, however, the same is consequential in nature and hence the necessity of adjudicating this ground does not arise. Correct amount of long term capital gain - HELD THAT:- After admitting this additional ground, in our considered opinion, it requires verification of facts. We, therefore, restore the issue to the file of A.O. The A.O. is directed to verify the correct amount of long term capital gain as per the de .....

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..... The Learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the disallowance of deduction on account of interest expenditure claimed by the appellant. 6. The Learned Commissioner of Income Tax (Appeals) has erred in law and in facts in confirming the levy of interest u/s 234A and 234B pf the Act." 3. At the outset, the ld. Counsel for the assessee stated that he is not pressing ground No. 3. The same is accordingly dismissed as not pressed. 4. Ground No. 1 is general in nature, hence need no separate adjudication. 5. Ground No. 2 relates to the grievance that the ld. CIT(A) ought to have accepted the book results. It is the say of the ld. Counsel for the assessee that in the first round of litigation, the Tribunal in ITA No. 5192/Mum/2003 order dated 17-3-2006 at para 8 of its order has directed the ld. CIT(A) to admit the books of account as an additional evidence. However, we find that the ld. CIT(A) at para 8.4 of his order has observed that "the only major addition made by the A.O. is on the ground that the appellant has sold certain shares and earned capital gain. This ground is being dealt with in the subsequent para of this order. In li .....

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..... in the books of account of both the parties. It was further stated that the A.O. himself has admitted that the assessee has shown the transactions in her books of account whereas late Shri Harshad S. Mehta has not shown such transactions. Under these circumstances, the additions cannot be made in the hands of the assessee. It was further stated that the difference in the accounts is because there was a difference in the opening balance which is on account of interest payable by the assessee to Late Shri Harshad S. Mehta. The assessee has also filed the copies of the ledger account explaining the difference in opening balances. The copies of the ledger account of Shri Late Shri Harshad S. Mehta and also the books of the assessee are extracted at para 14.2 on page 18 of the order of the ld. CIT(A). After considering the facts and the copies of ledger account, the ld. CIT(A) was convinced that the difference to the tune of ₹ 33,90,593/- was on account of difference in the opening balance therefore no enhancement of income can be made in the year under appeal. However, at the same time, directed the A.O. to enhance in respect of the balance entries after excluding the difference .....

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..... verification of reconciliation of the difference between the opening balances and the closing balances relating to brokerage and lease rent. The assessee is directed to file necessary details. The A.O. is directed to verify the details and decide this limited issue. Ground No. 4 is accordingly partly allowed for statistical purpose. 11. Ground No. 5 relates to the disallowance of deduction on account of interest expenditure. 12. The ld. Counsel for the assessee stated that this issue has been decided by the Tribunal in assessee's own case for A.Y. 1991-92 in ITA No. 1181/Mum/2012. 13. We have carefully perused the order of the Tribunal (supra). We find that the Tribunal has decided this issue at para 7 on page 2 of its order wherein the Tribunal has restored the matter to the file of the A.O. to follow the directions of the Tribunal in ITA No. 8023/Mum/2011. Respectfully following the findings of the co-ordinate Bench, we restore this issue to the file of the A.O. to follow the directions given by the Tribunal in assessee's own case in ITA No. 1181/Mum/2012 for A.Y. 1991-92. Ground No. 5 is accordingly allowed for statistical purpose. 14. Ground No. 6 relates to levy of intere .....

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..... is amount. Before the ld. CIT(A), it was contended that the information relied upon by the A.O. were either given to the assessee during the proceedings of A.Y. 1992-93 or during the proceedings for A.Y. 1993-94. It was further contended that the A.O. has computed the holding of shares from the information collected from difference sources. It was further submitted that the working of opening stock is borrowed from the working given in A.Y. 1992-93 without any break-up and without any basis. After considering the facts and the submissions, the ld. CIT(A) at para 9.7 of his order observed that the A.O. did not gave any breakup and the basis as to how the figures of sales and purchases were derived by him which fact was also admitted by the A.O. in the remand proceedings. At para 9.8, the ld. CIT(A) held "I find that during the course of present proceedings also, the things have not improved. The A.O. has still not been able to provide any break up or the details and information as to how the figure of profit on sale of shares have been derived by him in the assessment order. Thus, I find that the very basis details germane to the addition made by the A.O. are not available on record .....

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