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

ITA 1576/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8737 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 26-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K PAHWA
• Assessee Lawyers: JITESH JHANKH ARIA
• Keywords: Retrospective amendment; Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A BEFORE SHRI R.S. SYAL (A.M) AND SMT. ASHA VIJAYARAG HAVAN (JM) ITA NO. 1576/MUM/2010 ASSESSMENT YEAR 2001-02 A.D.I.T. (IT) -1(1), IST FL., R. NO. 117, SCINDIA HOUSE, BALLARD ESTATE, N.M. ROAD, MUMBAI 38. VS. M/S A.P. MOLLER, C/O MAERSIK INDIA P. LTD., DR. ANNIE BESANT ROAD, WORLI COLONY, MUMBAI. 30 PAN AAACA 8917F APPELLANT RESPONDENT APPELLANT BY SHRI S.K. PAHWA RESPONDENT BY SHRI JITESH JHANKH ARIA ORDER PER ASHA VIJAYARAGHAVAN THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT(A)-10 DT. 23.12.2009 FOR THE ASSESSMENT YEAR 20 01-02. 2. THE DDIT LEVIED INTEREST OF RS. 13, 54, 303/- U /S. 234D OF THE ACT. THE ASSESSEE IN APPEAL SUBMITTED THAT SECTION 234D OF T HE ACT WAS INSERTED W.E.F. 1 ST JUNE, 2003 AND THE ASSESSMENT YEAR UNDER APPEAL IS 2001-02 AND THE PROVISIONS OF SECTION 234D ARE NOT APPLICABLE TO TH E FACTS OF THE CASE. 3. THE LD. CIT(A) HELD AS FOLLOWS: THE PROVISIONS OF SEC. 234D INSERTED W.E.F. 1 ST JUNE, 2003, THEREFORE, THESE ARE APPLICABLE FROM A.Y. 2004-05 AS LAID DOWN BY HONBLE SPECIAL BENCH DELHI IN THE CASE OF M/S. EKTA PROMOTERS (P) LTD (3 05 ITR (6) (DEL) (SPL. BENCH) AND THE JURISDICTIONAL TRIBUNAL MUMBAI IN TH E CASE OF VAN CORD DREDING & MARINE CONTRACTORS (297 ITR 115 (AT(MUM). THEREFORE, NO INTEREST U/S. 234D COULD BE CHARGED IN THE CASE OF THE APPELLANT FOR 2003-04. THIS GROUND IS THEREFORE ALLOWED IN FAVOUR OF THE A SSESSEE. 4. AGGRIEVED, REVENUE PREFERRED AN APPEAL BEFORE US . M/S A.P. MOLLER 2 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT A SIMILA R VIEW AS THAT OF THE LD. CIT(A)WAS TAKEN BY THE TRIBUNAL IN THE CASE OF CIT VS. M/S BAJAJ HINDUSTAN LTD. AND WHILE CHALLENGING THE SAID DECISION OF THE TRIBUNAL IN AN APPEAL FILED BEFORE THE HONBLE BOMBAY HIGH COURT, THE FOLLOWING QUESTION OF LAW WAS SOUGHT TO BE RAISED BY THE REVENUE: WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ITAT WAS RIGHT IN HOLDING THAT THE INTEREST U/S 234 D CANNOT BE CHALLENGED IN RESPECT OF REFUNDS GRANTED PRIOR TO 1 .6.03 6. THE HONBLE BOMBAY HIGH COURT VIDE ITS JUDGMENT DATED 15.4.09 PASSED IN INCOME TAX APPEAL NO. 198 OF 2009 HAS HEL D THAT THE PROVISIONS OF SECTION 234D HAVING COME ON STATUTE BOOK ONLY W.E.F . 1.6.03 AND THE SAID PROVISIONS HAVING NO RETROSPECTIVE EFFECT, NO SUBST ANTIAL QUESTION OF LAW ARISES AS SOUGHT TO BE RAISED BY THE REVENUE IN ITS APPEAL . THE ISSUE INVOLVED IN THE PRESENT APPEALS THUS NOW STANDS SQUARELY COVERED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BA JAJ HINDUSTAN LTD. (SUPRA) AND RESPECTFULLY FOLLOWING THE SAME, WE UPH OLD THE IMPUGNED ORDERS OF THE LD. CIT(A) DELETING THE INTEREST CHARGED BY THE A.O. U/S 234D AS THE CORRESPONDING REFUNDS FOR BOTH THE YEARS UNDER CONS IDERATION WERE ADMITTEDLY GRANTED PRIOR TO 1.6.03. 7. IN THE RESULT, THE APPEAL FILED BY THE REV ENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY, 2011. SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER (JUDICIAL MEMBER) MUMBAI, DATED 28 TH JANUARY, 2011 RJ M/S A.P. MOLLER 3 COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 10, MUMBAI 4. THE DIT INTERNATIONAL TAXATION), MUMBAI 5. THE DR BENCH, A 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI M/S A.P. MOLLER 4 DATE INITIALS 1 DRAFT DICTATED ON: 25.01.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 25.01.2011 ______ SR . PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/ PS 6. KEPT FOR PRONOUNCEMENT ON: ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: ______ 9 DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER: ______