ADIT (IT) 1(1), MUMBAI V. A.P. MOLLER, MUMBAI

ITA 1575/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8405 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-02-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 26-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: DINESH CHAWLA
• Keywords: Retrospective amendment; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI P.M. JAGTAP, AM AND SHRI N.V. VASUDE VAN, JM I.T.A.NOS. 1575 & 1578/MUM/2010 ASSESSMENT YEARS : 2000-01 & 2003-04 ASST. DIRECTOR OF INCOME-TAX- (INTERNATIONAL TAXATION)-1(1), ROOM NO.117, SCINDIA HOUSE, BALLARD ESTATE, N.M. ROAD, MUMBAI 400 038. VS. M/S. A.P. MOLLER, C/O. MAERSK INDIA PVT. LTD., EMPIRE INDUSTRIES COMPLEX, 414, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI 400 013. PAN: AAACA 8917 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JITENDRA YADAV RESPONDENT BY : SHRI DINESH CHAWLA O R D E R PER P.M. JAGTAP, AM : THESE TWO APPEALS ARE PREFERRED BY THE REVENUE AGA INST TWO SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS)-10, MUMBAI, DATED 23.12.2009, WHEREBY HE CANCELLED THE INTEREST OF RS. 2,66,418/- AND RS. 25,84,180/- CHARGED BY THE ASSESSING OFFICER UNDER SECTION 234D FOR THE ASSESSMENT YEARS 2000-01 AND 2003-04 RESPECTIVELY. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT INTEREST CH ARGED BY THE ASSESSING OFFICER UNDER SECTION 234D FOR BOTH THE YEARS UNDER CONSIDE RATION I.E. ASSESSMENT YEARS 2000-01 AND 2003-04, WAS CANCELLED BY THE LEARNED CIT(A) BY THESE IMPUGNED ORDERS RELYING ON THE DECISION OF THE DELHI SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. EKTA PROMOTERS (P) LTD., 305 ITR 1 (AT)(DEL .), WHEREIN IT WAS HELD THAT THE PROVISIONS OF SECTION 234D HAVING BEEN INSERTED IN THE STATUTE WITH EFFECT FROM 1ST JUNE 2003, THE SAME ARE APPLICABLE ONLY FROM THE A SSESSMENT YEAR 2004-05. 3. AT THE TIME OF HEARING BEFORE US THE LEARNED COU NSEL FOR THE ASSESSEE HAS RELIED BESIDES THE DECISION OF THE SPECIAL BENCH OF THE I.T.A.T IN THE CASE OF M/S. ITA NOS.1575 & 1578/M/2010 M/S. A.P. MOLLER 2 EKTA PROMOTERS (P) LTD., ON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME-TAX VS. JACABS CIVIL INC ORPORATED (330 ITR 578)(DEL.) IN SUPPORT OF THE IMPUGNED ORDER OF THE LEARNED CIT(A) DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENT ATIVE, ON THE OTHER HAND, HAS RELIED ON THE DECISION OF THE HONBLE KERALA HIGH C OURT IN THE CASE OF CIT VS. KERALA CHEMICALS & PROTEINS LTD. (323 ITR 584)(KER.) IN SU PPORT OF THE REVENUES CASE ON THIS ISSUE. IT IS, HOWEVER, OBSERVED THAT THIS ISS UE NOW STANDS SQUARELY COVERED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN TH E CASE OF CIT V. BAJAJ HINDUSTAN LTD., INCOME-TAX APPEAL NO 198 OF 2009 DA TED 15.04.2009. IN THE SAID CASE, IT WAS HELD BY THE TRIBUNAL THAT INTEREST U/S .234D CANNOT BE LEVIED IN RESPECT OF REFUNDS GRANTED PRIOR TO 1.6.2003 AND WHILE CHAL LENGING THE SAID DECISION OF THE TRIBUNAL IN AN APPEAL FILED BEFORE THE HONBLE BOMB AY HIGH COURT, THE FOLLOWING QUESTION OF LAW WAS SOUGHT TO BE RAISED BY THE REVE NUE: WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE I.T.A.T WAS RIGHT IN HOLDING THAT THE INTEREST U/S.234D CANNOT BE LEVIED IN RESPECT OF REFUNDS GRANTED PRIO R TO 1.6.2003? 4. THE HONBLE BOMBAY HIGH COURT VIDE ITS JUDGMENT DATED 15.4.2009 (SUPRA) HELD THAT THE PROVISIONS OF SECTION 234D HA VING COME ON THE STATUTE BOOK ONLY WITH EFFECT FROM 1.6.2003 AND THE SAID PROVISI ONS HAVING NO RETROSPECTIVE EFFECT, NO SUBSTANTIAL QUESTION OF LAW AROSE FROM T HE ORDER OF THE TRIBUNAL AS SOUGHT TO BE RAISED BY THE REVENUE IN ITS APPEAL. THE ISSUE INVOLVED IN THE PRESENT CASE THUS NOW STANDS SQUARELY COVERED BY THE DECISI ON OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. BAJAJ HINDUSTAN LTD., AND RESPECTFULLY FOLLOWING THE SAME, WE UPHOLD THE IMPUGNED ORDER OF THE LEARN ED CIT(A) FOR THE ASSESSMENT YEAR 2000-01 CANCELLING THE INTEREST CHARGED BY THE ASSESSING OFFICER U/S.234D AS THE CORRESPONDING REFUND FOR THE SAID YEAR WAS GRAN TED ON 14.3.2002 I.E. PRIOR TO 1.6.2003. THE REFUND FOR THE ASSESSMENT YEAR 2003- 04, HOWEVER, WAS ADMITTEDLY GRANTED TO THE ASSESSEE ON 17.3.2004 I.E. AFTER 01. 06.2003 AND THE LEARNED ITA NOS.1575 & 1578/M/2010 M/S. A.P. MOLLER 3 CIT(A), THEREFORE, WAS NOT JUSTIFIED IN CANCELING T HE INTEREST LEVIED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2003-04. THE IMPUGNED ORDER OF THE LEARNED CIT(A) FOR THE ASSESSMENT YEAR 2003-04 ON T HIS ISSUE IS ACCORDINGLY SET ASIDE AND THAT OF THE ASSESSING OFFICER IS RESTORED . 5. IN THE RESULT, THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2000-01 BEING ITA NO. 1575/MUM/10 IS DISMISSED WHEREAS THE APPEAL FOR THE REVENUE FOR THE ASSESSMENT YEAR 2003-04 BEING ITA NO. 1578/MUM/ 10 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF FEBRUARY, 2011. SD. SD. (N.V.VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 23 RD FEBRUARY, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE DIT(INTERNATIONAL TAXATION), MUMBAI 4. THE CIT(A)-10, MUMBAI 5. THE DR G BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI