Taxap/1386/2010 Of Commissioner Of Income Tax - V v. Harsiddh Specific Family Trust

C/TAXAP/1294/2010 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 1294 of 2010 With R/TAX APPEAL NO. 1386 of 2010 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA ==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment ?2 To be referred to the Reporter or not ?3 Whether their Lordships wish to see the fair copy of the judgment ?4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?==========================================================COMMISSIONER OF INCOME TAX - V VersusJETHIBEN K PATEL DISCRETIONARY TRUST, ==========================================================Appearance:MR MR BHATT, SR COUNSEL WITH MRS MAUNA M BHATT(174) for the Appellant(s) No. 1MR SN SOPARKAR, SR COUNSEL WITH MR BS SOPARKAR WITH MRS SWATI SOPARKAR(870) for the Opponent(s) No. 1========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAand HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 25/02/2020 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1.Tax Appeal no.1386 of 2010 is admitted on the following substantial questions of law vide order dated 17[th] April 2012: (A)Whether the Tribunal below committed substantial error of law in deleting the addition of undisclosed income of Rs.51,72,44,000/- made in respect of capital gain on sale of warrants, even though the same was evidenced by materials/documents found during the search. (B)Whether the Tribunal below committed substantial error of law in deleting the disallowance of Rs.2,16,00,849/- made on account of interest expenses which were not genuine. (C)Whether the Tribunal below committed substantial error of law in deleting disallowance of Rs.25,75,968/- made on account of capital loss. (D)Whether the Tribunal below committed substantial error of law in deleting the interest charged under Section 158BFA(1) of the Income Tax Act. 2.Tax Appeal no.1294 of 2010 is admitted on the following substantial questions of law vide order dated 17[th] April 2012: (A)Whether the Tribunal below committed substantial error of law in deleting the addition of undisclosed income of Rs.1,78,49,895/- being undisclosed income out of book settlement of interest income without appreciation of the fact that seized material found clearly indicated that the assessee had received interest by book settlement entries. (B)Whether the Tribunal below committed substantial error of law in deleting the addition of Rs.1,78,49,895/- following the Tribunal’s decision in the case of Nirav Discretionary Family Trust and Harsiddh Specific Family Trust in IT (SS) Nos.63 and 68/Ahd/2006 without considering the fact that the facts of the cases relied upon were different from the facts of one involved in the present case. (C)Whether the Tribunal below committed substantial error of law in deleting the Assessing Officer to charge interest under Section 158BFA(1) of the Act from the date when copy of the seized papers were allowed to the assessee trust without appreciating the fact that simple supply of photocopies of seized material had no bearing on the chargeability of its interest. (B)Whether the Tribunal below committed substantial error of law in deleting the addition of Rs.1,78,49,895/- following the Tribunal’s decision in the case of Nirav Discretionary Family Trust and Harsiddh Specific Family Trust in IT (SS) Nos.63 and 68/Ahd/2006 without considering the fact that the facts of the cases relied upon were different from the facts of one involved in the present case. (C)Whether the Tribunal below committed substantial error of law in deleting the Assessing Officer to charge interest under Section 158BFA(1) of the Act from the date when copy of the seized papers were allowed to the assessee trust without appreciating the fact that simple supply of photocopies of seized material had no bearing on the chargeability of its interest. 3.The Tax Appeal no.1386 of 2010 is filed at the instance of revenue under Section 260A of the Income Tax Act, 1961 (for short “the Act, 1961”) against the order dated 20[th] November 2009 passed by the Income Tax Appellate Tribunal (for short ‘the Tribunal’) in IT (SS) A No.63/Ahd/2006 for block assessment from 1[st] February 1995 to 27[th ]September 2001 in case of the respondent herein along with IT(SS)A No.68/Ahd/2006 in case of Nirav Discretionary Family Trust. Whereas the Tax Appeal no.1294 of 2010 is filed by the revenue and is directed against the order passed by the Tribunal in IT(SS) A 64/Ahd/2006 in case of Jethiben K. Patel. The Tribunal has followed the order passed in IT (SS) A 63/Ahd/2006 and IT(SS) No.68/Ahd/2006 in deleting the addition of undisclosed income in the hands of Jethiben K. Patel. Hence, both these appeals were heard together and are being disposed of by this common order. 4.So far as question C in Tax Appeal no.1386 of 2006 is concerned, the same is covered by the decision of this Court in case of Naman Associates in Tax Appeal No.1180 of 2006 wherein it is held that capital loss is not a contrived loss as claimed by the assessee. Therefore, the assessee is entitled to the capital loss claimed in the return of income. It is held as under :- “17.Having considered the submissions made by the learned advocates for the respective parties and having perused the impugned orders passed by the Assessing Officer, CIT(A) and the Tribunal, we are of the opinion that the Tribunal has arrived at finding of fact after considering the material evidence on record so as to hold that the assessee is entitled to the claim of the contrived losses suffered by it. The Tribunal has also rightly considered the fact that in the assessment under the block period only the undisclosed income, which is found from the seized material can only be considered for the addition as in the total income of the assessee. In the facts of the case, the assessee has already disclosed the losses by making necessary entries in the books of accounts and therefore, the assessing officer and CIT(A) were not justified in disallowing the contrived losses claimed by the assessee. The Tribunal has also taken into consideration the factual aspect of the matter that the sale bills were issued by the brokers, the payments were made by cheque by the respective buyer of the shares and such transactions are duly reflected in the books of accounts. In such circumstances, it cannot be said that the Tribunal has committed any error in holding that the assessee is entitled to claim the contrived losses in the total income for the respective year by the respective assessee.” Following the same, question C is answered in favour of the assessee and against the revenue. 5.With regard to questions A and B in Tax Appeal No.1386 of 2010, the brief facts are as under :- [A]Addition of undisclosed income of Rs.51,72,44,000/-, Capital Gain on sale of warrants :- Following the same, question C is answered in favour of the assessee and against the revenue. 5.With regard to questions A and B in Tax Appeal No.1386 of 2010, the brief facts are as under :- [A]Addition of undisclosed income of Rs.51,72,44,000/-, Capital Gain on sale of warrants :- “(i)A search was carried out in the case of Nirma Group on 27/09/2001. On the basis of incriminating documents seized during the course of search, the Assessing Officer was satisfied that some of the seized materials has direct link with the undisclosed income of the different entities of Nirma Group including Harsiddh Specific Family Trust (the assessee). Therefore, action u/s. 158B r.w.s. 155BC was initiated in the case of the assessee. After considering the various notings on the seized documents, the Assessing Officer concluded that sale of warrants of Nirma Group had actually affected in the year 2000 and after considering the date of purchase, the Assessing Officer, accordingly calculated the capital gain of Rs.51,72,44,000/- as undisclosed income of the assessee. (ii) In appeal, the CIT(A) confirmed the order of the Assessing Officer on this issue holding that the Assessing Officer had given valid reasons in the assessment order for taxing the undisclosed income from sale of warrants. (iii)Against the assessee’s appeal, the Appellate Tribunal deleted the addition made on account undisclosed income considering that the book entries were found in the different entities and held that the transfer reflected in the seized material were proposed transactions and the payments made were in the nature of advance only.” 6.Mr. M. R. Bhatt, learned senior advocate assisted by Mrs. Mauna Bhatt, senior standing counsel, vehemently submitted that as per the seized material at page no.299 Annexure-A/5, it is not in dispute that it refers to“sold 7,00,000” and therefore there was no ambiguity that the warrants under consideration were sold and it was not only proposed sale. 7.It was submitted that it is also not in dispute that till 30[th ]April 2000, cumulative payment at Rs.800 per warrant were received for all the 11 Lac warrants. It was submitted that both the Assessing Officer and CIT(A) held that the evidence and documents referred by the assessee after 20[th] July 2000 cannot be relied upon because after this date, both the parties actively collaborated to change complexion of transaction so as to avoid tax and it is evident that before 20[th] July 2000, the intention of the parties was different. In such circumstances, it was submitted that the facts of payments received upto that date conclusively proves that the real nature of the transaction was one of the actual sale and not the proposed sale. 8.With regard to disallowance of interest expenses debited by the assessee trust, it was submitted that the CIT(A) and the Assessing Officer both have rightly held that the amount received by the assessee trust was not advanced but it was a consideration for actual sales of the 6 Lac warrants and therefore, the said issue cannot be consequential to the first issue with regard to the capital gains. 9.On the other hand, Mr. S. N. Soparkar, learned senior advocate assisted by Mr. B. S. Soparkar, learned advocate vehemently opposed the contentions raised on behalf of the revenue. 10.Learned senior advocate referred to the documents compiled in all paper-book to point-out from the seized papers that reference to Annexure-A/5 only states that there was a proposal to 7,00,000 share warrants. However, there is no conclusive proof to show that there was an actual delivery of the share warrants by the assessee. 9.On the other hand, Mr. S. N. Soparkar, learned senior advocate assisted by Mr. B. S. Soparkar, learned advocate vehemently opposed the contentions raised on behalf of the revenue. 10.Learned senior advocate referred to the documents compiled in all paper-book to point-out from the seized papers that reference to Annexure-A/5 only states that there was a proposal to 7,00,000 share warrants. However, there is no conclusive proof to show that there was an actual delivery of the share warrants by the assessee. It was further submitted that the assessee has calculated interest at the rate of 12% p.a. and has also deducted the TDS from such interest calculated on the amount received by the assessee on 24[th] February 2000 and amount was repaid on 16[th] May 2000 and the TDS was also deposited by the assessee. Similarly, the amount received on 13[th] April 2000 and 16[th] May 2000 by the assessee was also returned with interest after deducting the TDS. The principal amount was repaid on 20[th] July 2000 and the net interest amount was paid by the assessee on 24[th ]October 2000. IT was submitted that these dates and transactions took place prior to the date of search on 27[th] September 2001. It was therefore, submitted that there was no intention on the part of the assessee for not disclosing any capital gain or any transaction so as to not to offer the amount of capital gain if any earned by the assessee. 11.It was submitted that the Assessing Officer made the addition only on the basis of the assumption by relying upon the seized material without there being any corresponding entries in the books of accounts in the bank statements. It was pointed out that on the contrary, all the entries relating to the amount received by the assessee and repayment thereof with interest are reflected in the books of accounts and the payment was made through banking channel. It was therefore, submitted that the addition made on the basis of the notings made in the seized papers without there being any supportive or corroborative material is rightly deleted by the Tribunal. 12.Learned advocate for the petitioner assessee also submitted that the assessee remains the owner of the 7,00,000 share warrants, which was subsequently converted into shares and are being reflected as shares. 13.Having heard the learned advocates for the respective parties and having gone through the material on record, the Tribunal has considered the issue in detail on the basis of the records produced before it as under :- “9.We have heard the rival contentions and gone through the facts and circumstances of the case. We have also perused the case record in both the appeal, i.e. block assessment orders, the orders of CIT(A) and paper books filed by the assessee. The paper book filed by the assessee-trust Nirav Discretionary Family Trust (NDFT in short) consisting pages 1 to 191 and Ld. CIT DR also filed copy of some seized papers consisting pages 1 to 5. The Ld. CIT DR has also filed copies of show cause notice dated 20-05-2004, 31-05-2004 In the case of Harsiddh Specific Family Trust (HSFT in short) and similar papers also filed by Ld. CIT DR and paper book by the HSFT consisting pages 1-205. “9.We have heard the rival contentions and gone through the facts and circumstances of the case. We have also perused the case record in both the appeal, i.e. block assessment orders, the orders of CIT(A) and paper books filed by the assessee. The paper book filed by the assessee-trust Nirav Discretionary Family Trust (NDFT in short) consisting pages 1 to 191 and Ld. CIT DR also filed copy of some seized papers consisting pages 1 to 5. The Ld. CIT DR has also filed copies of show cause notice dated 20-05-2004, 31-05-2004 In the case of Harsiddh Specific Family Trust (HSFT in short) and similar papers also filed by Ld. CIT DR and paper book by the HSFT consisting pages 1-205. 10.We find that in both the appeal in the case of HSFT and NDFT are almost exactly identical but these are independent entity and have no inter-connection and inter se. We have sourced the facts and details from the HSFT and NDFT as well as other relevant facts sourced from the argument of both the sides and the case records filed before us. Both the assessee-trusts were the owner of warrants of Nirma Ltd. and were intending to sell 7 and 4 lacs warrants, TIFL was in touch with the assessee-trust as broker and in the beginning of year 2000, the assessee-trust expressed interest in selling the warrants and TIFIL also expressed interest in buying the warrants at a negotiable price in big lots for themselves as well as on behalf of clients. In turn Shri Kausik K Patel advised both the assessee and accordingly had discussed of its expectation on the price, quantity and term of payment etc. Accordingly, Mr. K.K. Patel took the matter with the TIFIL on behalf of both the assessee-trust. The buyer through TIFIL established their intention of going through with the transaction and started making payments even though the transactions were not confirmed. Accordingly, HSFT received a sum of Rs.56 crores towards proposed sales of its 7 lacs warrants and further payment of Rs.35 crores was also received on 16-05-2000. Both the assessee were willing to sell the warrants @ Rs.1,000/- but the buyers were willing to buy the warrants @ Rs.800/- per warrant. Accordingly, the sale transaction did not materialize as per the claim of the assessee-trust. As per the claim of the NDFT and actually sold to TIFIL on 30-04-2000 @ Rs.800/- per warrant and physically delivered 1 lac shares vide letter dtd.14-04-2000. The assessee-trust, i.e. NDFT and declared long term capital gains sale of 1 lac warrants in the return of income for the assessment year 2001-02. It was the claim of the assessee that by record date 15-04-2000, that the warrants could not be transferred in the name of TIFIL and NDFT made payment of Rs.50 per warrant on behalf of TIFIL and in turn TIFIL reimbursed the whole amount back. After conversion of warrants and allotment of shares on 20-06-2000 1 lac shares were received by NDFT on behalf of TIFIL and subsequent delivered to TIFIL. The claim of the assessee was that the amounts received from the buyers were advance and interest free but the deal of balance warrants and the amount was utilized by both the assessee-trust. In that eventuality both the assessee-trust agreed that interest @ 13% would be paid to the intending buyer for the period for which the funds were utilized by both the assessee- trust. The assessee-trust has narrated the details of payment as under:- * Cheque amount of Rs.1,62,69,060/- includes Rs.2,000/- for bank charges. delivered to TIFIL. The claim of the assessee was that the amounts received from the buyers were advance and interest free but the deal of balance warrants and the amount was utilized by both the assessee-trust. In that eventuality both the assessee-trust agreed that interest @ 13% would be paid to the intending buyer for the period for which the funds were utilized by both the assessee- trust. The assessee-trust has narrated the details of payment as under:- * Cheque amount of Rs.1,62,69,060/- includes Rs.2,000/- for bank charges. It was the claim of the assessee-trusts that they have repaid the advances received from the prospective buyers along with interest after deducting TDS. We find that the Assessing Officer on the basis of loose papers and noting therein found during the course of search came to the conclusion that both the assessee-trust had actually sold its 7 lac and 4 lacs warrants and the amount received as advance was the sale consideration. We further find that after search on 27-09-2001, 25-01-2002 and 29-01-2002 the Assessing Officer recorded the statement of Shri Jatiin Sarvaiya u/s 131 of the Act. ” 14.Thereafter, the Tribunal has referred to the statement of Shri Rahul Devi recorded during the course of search under Section 132(4) of the Act on 27[th] September 2001 and in reply to question no.39 decided that as far as his information, loan transaction took place with Chitrakoot Computers Pvt. Ltd., and thereafter also as explained, the transaction in his statement dated 22[nd] November 2001 wherein also in reply to question nos.17 and 19 and question nos.22 to 25 of the statement dated 23[rd] November 2001, it was stated by Mr. Rahul Devi that there transaction was only with regard to 1,00,000 warrants of Nirma Ltd., by Nirav Specific Family Trust to Try International Finance Ltd., on 13[th] April 2000 and no other sale or warrants had taken place and there was only loan transaction by the assessee trust. The Tribunal has also considered the statement of Shri Rahul Devi with regard to the payment calculation of the interest made in the seized paper by Shri Rahul Devi in his statement before the Assessing Officer to clarify the issue of non-conclusion of proposed sale of warrants and return of the advance money by the assessee trust to the respective parties together with interest after deducting the TDS. 15.The Tribunal thereafter, considering the submissions made on behalf of the revenue held as under :- “15. We find from the above facts that apart from the documents placed before us by the Ld. CIT DR found during the course of search, the relevant page i.e. page-23, 24, 86 and back side of 108 of Annexure-A/5 & A/1produced by the assessee in the Paper Book and the corresponding pages are 136, 137, 140, & 144 read as under:- SHRI KAUSHAL D.W.A. P.F.I.C.L BREAK-UP OF WARRANTS We propose to complete items no 4/5/6 and any one of 1//3.We could do item 3 to complete 'NIRAV' transaction for go perused. Page-24 Shri M.pbhani 7/3/000 With reference to your inquiry as to receipt as his 5.60 crores into Harsiddh and Rs.4.40 crores into Nirav on 24--2000 please note the names from whom these deposits are received:- All deposits are non interest bearing as informed by Shri Kaushikbhai. Page-86 (13% equivalent or Amt. lent for 98 days : 2,11,22,701) Losses NCWL 20/12/2000 1,04,45991.75 NCZCL 20/12/2000 1,07,25,653.16 2,05,71,644.91 Amt. Reed. For 1,00000 sh. 23/2 40 loss 13/4 7G loss 16/5 50 loss Back side of page 108 Possible calculation you arrived at Amt. given for trading (1) 12,73,000 shares X 140.18 Rate in excess of 1000/- From the above documents and the arguments of both side, it is gathered that these transactions noted on seized pages 23, 24, 33, 87, 88, 108 and back 7/3/000 With reference to your inquiry as to receipt as his 5.60 crores into Harsiddh and Rs.4.40 crores into Nirav on 24--2000 please note the names from whom these deposits are received:- All deposits are non interest bearing as informed by Shri Kaushikbhai. Page-86 (13% equivalent or Amt. lent for 98 days : 2,11,22,701) Losses NCWL 20/12/2000 1,04,45991.75 NCZCL 20/12/2000 1,07,25,653.16 2,05,71,644.91 Amt. Reed. For 1,00000 sh. 23/2 40 loss 13/4 7G loss 16/5 50 loss Back side of page 108 Possible calculation you arrived at Amt. given for trading (1) 12,73,000 shares X 140.18 Rate in excess of 1000/- From the above documents and the arguments of both side, it is gathered that these transactions noted on seized pages 23, 24, 33, 87, 88, 108 and back side of page 108 of Annexure-A/1 seized from the premises of Shri Rahul V Devi and slip attach to page-35 of Annexure-A/5 from the premises of Nirma Management Services Pvt. Ltd., on 11-10-2001 and noting on page-29 of Annexure-A/5 seized in the name of Nirma Management Services Pvt. Ltd., it is clearly observed by us that particularly on page-23 it is written as, " we propose to complete item N.4,5, 6 and any one of 1/2/3. We could do item 3 to complete "Nirav" transaction for if perused". We feel that these are not concluded transactions and it is merely a proposal a sale the warrants of Nirma Limited as mentioned in the page. We further went into slip attached to page-35 of Annexure-A/5 and found that it was in respect of keeping the transfer deeds ready for warrants to be sold in case of transaction getting through. We find that this is normal communication of documents for the transactions to be entered. We find that In the case of NDFT except for 1 lac warrants, the transactions could not be completed which has been substantiated by evidences like copies of Demat a/c, confirmation of financial accounts by respective parties etc. Various seized papers, seized from the residence of Shri Rahul Devi clearly indicating that the amounts received from Rekha Sarvaiya and Meeta Doshi were advanced towards in the books of account have been conveniently ignored by the lower authorities. The identical payments scheduled by different parties having mediator "Triumph" has been explained by Mr. Jatiin Sarvaiya, Department's witness in very clear and unambiguous way by his statement taken u/s.131 of the Act on 25-01-2002 and 29- 01-2002 which also has been ignored by the lower authorities.” 16.With regard to the deleting the disallowance of the interest expenses claimed by the assessee trust, the Tribunal has rightly held that as the main ground with regard to the addition on account of the capital gains has been decided in favour of the assessee trust, wherein it is held that the payment received from other parties by the assessee trust are loans and advances and therefore, the interest payment by the assessee trust to this parties are required to be allowed. 17.On perusal of the findings of fact arrived at by the Tribunal on the basis of the material on record, we do not find the same either to be perverse or contrary to records by considering irrelevant factors or ignoring the relevant factors. In such circumstances, we do not find any infirmity in the impugned order of the Tribunal with regard to the questions A and B. The questions, therefore, are answered in favour of the assessee and against the revenue. 17.On perusal of the findings of fact arrived at by the Tribunal on the basis of the material on record, we do not find the same either to be perverse or contrary to records by considering irrelevant factors or ignoring the relevant factors. In such circumstances, we do not find any infirmity in the impugned order of the Tribunal with regard to the questions A and B. The questions, therefore, are answered in favour of the assessee and against the revenue. 18.With regard to the question D, the Tribunal has remanded the matter back to the Assessing Officer to calculate interest under Section 158BFA(1) of the Act, 1961 from the date when the copies of the seized papers were provided to the assessee trust. This Court in Tax Appeal No.719 of 2009 has also rejected the Tax Appeal of the assessee by order dated 22[nd] June 2010 on such issue when the Tribunal has remitted the matter back to the Assessing Officer to consider as to whether the delay in filing the block return was on account of default on the part of the assessee and to penalize him by charging interest under Section 158BFA(1) to the extent assessee was responsible for delay. 19.We are, therefore, of the opinion that it cannot be stated that the Tribunal has committed any error so as to warrant interference. 20.Similarly, the Madras High Court in case of K. Balan v. Deputy Commissioner of Income-Tax, Central Circle-II(2), Chennai reported in [2018] 93 taxmann.com 452 (Madras) has also considered such issue holding that interest under Section 158BFA(1) could not be levied upon assessee for the period of delay in filing return caused due to delay in obtaining copies of seized material from the department as under:- “14.On a reading of statutory provision one gets an impression that no such plea is entertainable and limitation does not stop and continues to run upon issuing notice under section 158BC. However, cannot ignore the principles of natural justice, which will have to be read into the provision, as assessee without being supplied with the necessary documents, which were seized during the course of search, would not be in a position to file a proper return. Law does not compel a person to perform that which is impossible. Admittedly, the delay in not filing the return after the notice dated 20.07.1998 is not attributable to the assessee. Nowhere, the Revenue has taken a stand that the request made by the assessee for supply of seized documents was either unreasonable or uncalled for. Later, the department has furnished the photostat copies of the seized documents. Therefore, the period during which the assessee was waiting for the copies of the documents, which were seized, has to be necessarily excluded and if this is excluded, the period between 1998 to 22.06.1999 has to be necessarily excluded. This reasoning is supported by the decision of the High Court of Karnataka in CIT v. B. Nagendra Baliga [2014] 47 taxmann.com 331/363 ITR 410 and the decision of the High Court of Delhi in CIT v. Mesco Airlines Ltd. [2012] 20 taxmann.com 549/206 Taxman 91 (Mag.)/[2010] 327 ITR 554.” 21.In view of above, we are of the opinion that the tribunal has rightly remanded the matter back to the Assessing Officer for calculation of the interest payable by the assessee under Section 158BFA(1) of the Act to find out the date when the copies of seized material was allowed to the assessee trust and to charge interest under Section 158BFA(1) of the Act, 1961 from that date. Question D is answered in favour of the assessee and against the revenue as the Tribunal has not deleted the interest entirely but remitted the matter back to the Assessing Officer for calculation purpose as stated hereinabove. 22.With regard to the question C in Tax Appeal no.1294 of 2010, the same is to be answered as per question D in Tax Appeal No.1386 of 2010. 23.With regard to the questions A and B in Tax Appeal no.1294 21.In view of above, we are of the opinion that the tribunal has rightly remanded the matter back to the Assessing Officer for calculation of the interest payable by the assessee under Section 158BFA(1) of the Act to find out the date when the copies of seized material was allowed to the assessee trust and to charge interest under Section 158BFA(1) of the Act, 1961 from that date. Question D is answered in favour of the assessee and against the revenue as the Tribunal has not deleted the interest entirely but remitted the matter back to the Assessing Officer for calculation purpose as stated hereinabove. 22.With regard to the question C in Tax Appeal no.1294 of 2010, the same is to be answered as per question D in Tax Appeal No.1386 of 2010. 23.With regard to the questions A and B in Tax Appeal no.1294 of 2010, the Tribunal has held that both the sides have agreed that the issue stands covered by the order passed in the case of the assessee in Tax Appeal no.1386 of 2010. The Tribunal has observed as under :- “The Ld. Counsel of the assessee and the Ld. CIT D.R. fairly agreed that the facts are exactly identical in this case also what was in IT(SS)A No.63 and 68/Ahd/2006 which has been argued. We find that the issue being exactly identical and we have already decided in favour of the assessee vide Tribunal’s order in IT(SS)A No.63 & 68/Ahd/2016 in para-15 and 16 dated 20[th] November 2009 for which we have already passed one order as under :-” 24.Thus, the Tribunal has followed the order passed in Tax Appeal no.63 of 2006 and Tax Appeal no.68 of 2006. Accordingly, in absence of any independent finding of the Tribunal, we are of the opinion that the Tribunal has followed the decision in case of the Tax Appeal no.63 of 2006 and Tax Appealno.68 of 2006 and as questions A and B are similar to that of questions A and B of Tax Appeal no.1386 of 2010, the same are decided accordingly by answering the same in favour of the assessee and against the revenue following the reasons given by the Tribunal. 25.In the result, the appeals fail and are accordingly dismissed. No order as to costs. (J. B. PARDIWALA, J) AMAR RATHOD (BHARGAV D. KARIA, J)