DDIT (IT)-4(1), MUMBAI V. M/S. LINKLATERS, MUMBAI

ITA 3039/MUM/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3591 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2010
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: L1
• Next Hearing Date: 10-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 05-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KESHAVE SAXENA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI V.DURGA RAO, JM ITA NO.3039/MUM/2008 : ASST.YEAR 2005-2006 THE DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 4(1) MUMBAI. VS. M/S.LINKLATERS C/O.M/S.DELOITTE HASKINS & SELLS CHARTERED ACCONTANTS 264-265, VASWANI CHAMBERS WORLI, MUMBAI 400 030. PA NO.AABFL2160M. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KESHAVE SAXENA RESPONDENT BY : SHRI NIRAJ SHETH O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 28.02.2008 IN RELATION TO THE ASSESSMENT YEAR 2005-2006. 2. AT THE VERY OUTSET THE LEARNED DEPARTMENTAL REPR ESENTATIVE CONTENDED THAT THE ISSUES RAISED IN THIS APPEAL HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE REPORTED AT LINKLATERS VS. ITO (IT) [(2010) 40 SOT 51]. IT WAS, THEREFORE, PRAYED THAT THE SAME VIEW BE FOLLOW ED IN THE ABSENCE OF ANY DISTINGUISHING FEATURE ON THE FACTS OF THE CASE OR LAW AS ALREADY DECIDED BY THE TRIBUNAL AND THOSE PREVAILING IN THE INSTANT CASE. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, REQUESTED FOR ADJOURNM ENT GIVING REASONS THAT SOME OTHER ASSESSEE, ON SIMILAR ISSUE, HAS MADE APPLI CATION TO L BENCH FOR FORMATION OF SPECIAL BENCH AND THE ASSESSEE WAS ALSO CONSIDER ING FOR FILING A MISCELLANEOUS APPLICATION AGAINST THE ORDER OF THE TRIBUNAL AS AF ORE-NOTED. 3. HAVING HEARD BOTH SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT NO SPECIAL BENCH HAS BEEN CONSTITUTED SO FAR ON THE ISSUE AS HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE. FUR THER NO MISCELLANEOUS ITA NO.3039/MUM/2008 M/S.LINKLATERS. 2 APPLICATION HAS BEEN FILED AGAINST THE AFORE-SAID O RDER. ONCE THE TRIBUNAL HAS DECIDED A PARTICULAR ISSUE IN ASSESSEES OWN CASE I N AN EARLIER YEAR AND THERE IS NO CHANGE IN FACTS OR LAW IN THE SUBSEQUENT YEAR, THEN THERE IS NO SCOPE FOR DEVIATING FROM THE VIEW ORIGINALLY TAKEN BY THE TRIBUNAL. IN VIEW OF THESE FACTS IT WAS CONVEYED THAT THE ADJOURNMENT WAS NOT POSSIBLE. 4. ON MERITS THE LEARNED DEPARTMENTAL REPRESENTATIV E CONTENDED THAT GROUND NO.1 WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESS EE WHEREAS GROUND NO.2 WAS IN ASSESSEES FAVOUR. THIS SUBMISSION WAS NOT ACCEPTED BY THE LD. AR. AS THE FACTS AND CIRCUMSTANCES OF THE YEAR IN QUESTION ARE SIMIL AR TO THOSE ALREADY DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE AND NO DISTINGU ISHING FEATURE HAS BEEN BROUGHT TO OUR NOTICE, RESPECTFULLY FOLLOWING THE VIEW TAKE N BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE EARLIER YEAR WE ALLOW GROUND NO.1 A ND DISMISS GROUND NO.2 IN THE PRESENT APPEAL. 5. THE ONLY OTHER EFFECTIVE GROUND IS AGAINST NOT C HARGING OF INTEREST U/S.234B OF THE ACT. BOTH SIDES ARE IN AGREEMENT THAT THERE ARE SEVERAL ORDERS PASSED BY THE TRIBUNAL HOLDING THAT WHEN A PARTICULAR INCOME IS S UCH ON WHICH TAX IS DEDUCTIBLE, THEN THERE IS NO OBLIGATION FOR PAYING INTEREST U/S .234B. THE TRIBUNAL, IN ASSESSEES OWN CASE IN ITA NOS.3057 & 3058/MUM/2007 FOR ASSESS MENT YEARS 2002-2003 AND 2003-2004, HAS ORDERED FOR THE DELETION OF LEVY OF INTEREST U/S.234B. FOLLOWING THE PRECEDENT, WE DISMISS THIS GROUND OF APPEAL. 6. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 27 TH DAY OF DECEMBER, 2010. SD/- SD/- ( V.DURGA RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI : 27 TH DECEMBER, 2010. DEVDAS* ITA NO.3039/MUM/2008 M/S.LINKLATERS. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.