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DCIT-1(3) R. No. 540/564, 5th Floor, Aayakar Bhavan, M.K.Road, New Marine Lines, Mumbai 400 020 Vs. The Zoroastrian Co-op Bank Ltd. Iron House, 5th Floor, Annie Besant Road, Worli, Mumbai- 400 030
August, 27th 2014
                       MUMBAI BENCH "G", MUMBAI
                        ITA No. 1215/Mum/2011
                       Assessment Year: 2004-05
         DCIT-1(3)                                The Zoroastrian Co-op
         R. No. 540/564, 5th Floor,               Bank Ltd.
         Aayakar Bhavan, M.K.              Vs.    Iron House, 5th Floor,
         Road, New Marine Lines,                  Annie Besant Road, Worli,
         Mumbai ­ 400 020                         Mumbai- 400 030
                                                  PAN: AAAAZ 0071 B
                (Appellant)                          (Respondent)

                           Assessee by      :    Shri S.P. Bulsara
                            Revenue by      :    Smt. Parminder
                      Date of hearing  : 25.08.2014
                 Date of Pronouncement : 25.08.2014


      This Appeal filed by the Revenue is directed against the order of the
Ld.CIT(A) -2, Mumbai dated 24.11.2010 for the Assessment Year 2004-05.

2.    In this appeal the Revenue has raised the following grounds:-
      "Whether on the facts and in the circumstances of case and in law, the Ld.
      (A) erred in quashing the assessment relying upon the decision of the Hon'ble
      ITAT in the case of assessee for A.Y. 2003-04.

      The Ld.CIT(A) further erred in overlooking the fact that the appeal against
      order of ITAT for A.Y. 2003-04 was not authorized due to low tax effect."

3.    Briefly stated, the AO issued the notice u/s 148 to the assessee on the ground
that interest on income tax refund was not on account of business activity pertaining
to banking business and therefore, ought to have been taxed as income under the
head `income from other sources' which was not done by the assessee. Accodingly,
the AO proceeded to assess the income of the assessee accordingly. On appeal, the
Ld.CIT(A), by relying on the decision of the Tribunal in the assessee's own case for
the A.Y. 2003-04, wherein on identical issue, the Tribunal held that reopening of
assessment on this count was not justified. Consequently, the Ld.CIT(A) quashed
                                                                                     ITA No. 1215/Mum/2011
                                                2                                  The Zoroastrian Co-op Bank Ltd
                                                                                    Assessment Year: 2004-05

the assessment order. Aggrieved by the impugned order, the Revenue is in appeal
before us.
4.      Having heard both the sides and perused the material on record, it is
pertinent to mention that the Tribunal in the asessee's own case, in the cross
objections filed by the assessee in CO No. 4/Mum/2010, against the revenue's
appeal in ITA No. 3878/Mum/2009 for the A.Y. 2003-04, by relying on the decision
of the Hon'ble Apex Court in the case of CIT Vs. Kelvinator of India Ltd. [(2010) 320
ITR 561 (SC)], has held that the reopening of the assessment on similar ground was
not proper and hence set aside the assessment order. The Ld.CIT(A) has followed
the said order of the Tribunal for quashing the reopened assessment during the year
under consideration on similar set of facts. In this connection, it is relevant to state
that the said order of the Tribunal is only on the issue of validity of reopening the
assessment u/s 148 of the Income Tax Act and not on the issue of merit as to the
addition made in the reopened assessment. However, in the present appeal the
Revenue contends that they have not preferred the appeal against the said order of
the Tribunal for the A.Y. 2003-04 due to low tax effect. When the Tribunal has held
the issue of validity of reopening alone in the A.Y. 2003-04, the contention of the
Revenue that they have not preferred the appeal against the order of the Tribunal is
misconceived. Therefore, we do not find any merit in the appeal filed by the
Revenue which deserves to be dismissed.

5.      In the result, the appeal filed by the Revenue is dismissed.
     Order pronounced in the open court on this 25th day of August, 2014.

               Sd/-                                                           Sd/-
         (N.K. BILLAIYA)                                           (Dr. S.T.M. PAVALAN)
       ACCOUNTANT MEMBER                                             JUDICIAL MEMBER
Mumbai, Dated: 25.08.2014
Copy to: The Appellant
         The Respondent
         The CIT, Concerned, Mumbai
         The CIT(A) Concerned, Mumbai
         The DR "G" Bench

                                        //True Copy//
                                                            By Order

                                              Dy/Asstt. Registrar, ITAT, Mumbai.
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