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Ahuja Platinum Properties Ltd. A-1, Rajpipla Linking Road, Santacruz (W), Mumbai-400 054 Vs. Dy. CIT, Range 9(1), Room No. 223, Aayakar Bhavan, M. K. Road, Mumbai-400 020
July, 10th 2014

      . . ,        ,                                                                  

                    ./M.A. Nos. 445 & 446/Mum/2013
        (Arising out of ITA Nos. 7153/Mum/2010 & 2953/Mum/2011)
              (   / Assessment Year: 2005-06 & 2007-08)

Ahuja Platinum Properties Ltd.                      Dy. CIT, Range 9(1),
A-1, Rajpipla Linking Road,                  /      Room No. 223, Aayakar Bhavan,
Santacruz (W), Mumbai-400 054                Vs.    M. K. Road, Mumbai-400 020

     . /  . /PAN/GIR No. AAECA 4138 L
    Applicant       :            Respondent

                          Applicant by         :    Shri Reepal Tralshawala
                         Respondent by         :    Shri Pitambar Das

                         /                     :    09.05.2014
                   Date of Hearing
                                               :    07.07.2014
           Date of Pronouncement

                                      / O R D E R
Per Sanjay Arora, A. M.:

       These are a set of two Miscellaneous Petitions by the Assessee, i.e., for assessment
years (A.Ys.) 2005-06 & 2007-08, in respect of the combined order by the Tribunal
dated 30.10.2013 in it's case for the said years.

2.     Vide the instant miscellaneous applications (MAs) the assessee impugns the
decision by the tribunal qua Ground No. 2 of the Revenue's appeals for both the years,
whereby the Revenue agitates the deletion of the disallowance of interest paid by the
assessee to M/s. Ahuja Properties, a group concern, disallowed in part by the Assessing
                                             MA Nos. 445 & 446/Mum/2013 (A.Ys. 05-06 & 07-08)
                                                      Ahuja Platinum Properties Ltd. vs. Dy. CIT

Officer (A.O.) by invoking section 40A(2)(a) of the Act. The relevant grounds read as
         A.Y. 2005-06
         `2.    On the facts and in the circumstances of the case and in law, the ld.
         CIT(A) erred in deleting the addition of Rs.1,12,10,471/- being excess
         payment of interest made, overlooking the fact that the assessee could not
         establish with evidence that the payments made to associate concerns of the
         assessee were determined by reasons of commercial expediency.'

         A.Y. 2007-08
         `2.    On the facts and in the circumstances of the case and in law, the ld.
         CIT(A) erred in deleting the addition of Rs.1,22,57,536/- which represents
         the amount of interest paid to M/s. Ahuja Properties & disallowed by the
         Assessing Officer by holding that the payment was excessive and not
         determined by the commercial expediency, despite adequate material
         brought on record during the assessment proceedings that the payment was
         unjustified from commercial point of view.'

The two grounds, heard together, were so with reference to the tribunal's order for A.Y.
2003-04 (in ITA No. 4558/Mum(H)/2007 dated 24.06.2011), whereby the disallowance,
similarly made, stood deleted. The same stood in fact followed by the tribunal for A.Y.
2006-07, the order for which year was also adduced during hearing. This fact was not
contested by the Revenue during hearing. The tribunal, however, has restored the matter
back to the file of the first appellate authority vide the impugned order and, further, made
observations therein detrimental to it. No queries had been raised nor any clarification
sought at the time of hearing. There is also no reference to the tribunal's order for A.Y.
2006-07, also relied upon by the assessee. Accordingly, the impugned order be recalled
qua this ground/s, and decided afresh in consonance with section 254 of the Act.

3.   Before us, while the Authorized Representative (AR) reiterated its case as made out
per the miscellaneous petitions, the ld. Departmental Representative (DR) placed reliance
on the impugned order, stating of it to be in consonance with law and upon appreciation of
                                            MA Nos. 445 & 446/Mum/2013 (A.Ys. 05-06 & 07-08)
                                                     Ahuja Platinum Properties Ltd. vs. Dy. CIT

facts, and what the assessee seeks in the garb of rectification proceedings is only its
review, impermissible u/s. 254(2) of the Act.

4.     We have heard the parties, and perused the material on record.
4.1    The tribunal's order for A.Y. 2003-04, solely relied upon by the assessee in arguing
the instant appeals, has been found by the tribunal per the impugned order as
distinguishable on facts. The assessee had for both the years rendered specific
explanation/s to the Assessing Officer's charge for applying the provision of s. 40A(2)(a)
of the Act, and it is this explanation that had been considered by him, finding it
unacceptable. That he additionally drew support from his observations made while
framing the assessment for A.Y. 2003-04 or, as the case may be, A.Y. 2006-07,
supplementing his stand, is only another matter. However, finding that the ld. CIT(A) had
not considered the respective cases of the parties on merits, having in fact decided de hors
the assessee's explanation, the matter was restored by the tribunal back to his file for
adjudication afresh in accordance with law and the facts for those years; its decision (for
both the years), being as under:
       `6.4 Under the circumstances, therefore, we only consider it fit and
       proper to restore this issue back to the file of the ld. CIT(A) for an
       adjudication afresh in accordance with law, by issuing definite findings of
       fact, and after allowing proper opportunity of hearing to both the sides. We
       decide accordingly.'

4.2    The assessee's entire case before it being with reference to the tribunal's order for
A.Y. 2003-04, the only manner in our view in which a case u/s.254(2) could be validly
made out by it was by showing a mistake/s attending the impugned order, viz. the identity
of facts; as to how the tribunal's order relied upon did indeed address itself to the
assessee's explanation, which has not been. In fact, the difference is patent from the
considerable difference in the interest rates obtaining from year to year, being variable,
besides non-specification of the brokerage rate. Reference in this regard may be made to
paras 6.1 to 6.3 of the impugned order. The non-reference to order for A.Y. 2006-07 is
also to no consequence, as observed during hearing itself in-as-much as no independent
                                            MA Nos. 445 & 446/Mum/2013 (A.Ys. 05-06 & 07-08)
                                                     Ahuja Platinum Properties Ltd. vs. Dy. CIT

findings stand issued by the tribunal for that year, and the parent or the base order
continues to be that for A.Y. 2003-04. The argument of the payer firm being at loss, it is
further contended, had not been considered by the tribunal. The argument is misplaced.
The assessee, in stating so, fails to bear in mind that these are not review proceedings,
which could be argued with reference to the consideration or otherwise of each and every
argument advanced in-as-much as a view, one way or the other, is to be formed (refer :
CIT vs. Ramesh Electirc & Trdg. Co. [1993] 203 ITR 497 (Bom)). In fact, the same never
formed part of the assessee's explanation on merits for it to be considered. Thirdly, the
matter stands not decided by the tribunal but only restored back to the file of the first
appellate authority in view of the finding of no proper consideration by him, so that the
assessee shall have due opportunity of explaining and presenting its case before him. This
would also meet the assessee's `grievance' with regard to no clarification or query having
been put to it by the Bench during the hearing of the appeal, even as it needs to
appreciated and clarified that the clarifications and queries could only be with reference
to the arguments raised before it.
In fine, the tribunal has, on the basis of the facts and circumstances of the case, including the assessee's explanation, finding that the case as made out by the Revenue as not covered by the findings issued by the tribunal for A.Y. 2003-04 and, two, absence of proper consideration by the first appellate authority, restored the matter back to his file. We see no scope for interference u/s.254 (2) in the facts and circumstances of the case. We decide accordingly. 5. In the result, the miscellaneous applications are dismissed. Order pronounced in the open court on July 07, 2014 Sd/- Sd/- (I. P. Bansal) (Sanjay Arora) / Judicial Member / Accountant Member Mumbai; Dated : 07.07.2014 5 MA Nos. 445 & 446/Mum/2013 (A.Ys. 05-06 & 07-08) Ahuja Platinum Properties Ltd. vs. Dy. CIT . ../Roshani, Sr. PS /Copy of the Order forwarded to : 1. / The Applicant 2. / The Respondent 3. () / The CIT(A) 4. / CIT - concerned 5. , , / DR, ITAT, Mumbai 6. / Guard File / BY ORDER, / (Dy./Asstt. Registrar) , / ITAT, Mumbai
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