The DCIT, Circle-4, Ahmedabad V. Harsha Engineers Pvt. Ltd., Ahmedabad

ITA 429/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9269 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 13-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: TUSHAR HEMANI T HE
• Section: 143(3)

Judgement Text

ITA NO. 429 /AHD/201 3 ASSESSMENT YEA R: 20 10 - 11 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD C BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] ITA NO . 429 /AHD/ 20 1 3 ASSESSMENT YEAR : 20 10 - 11 DY . COMMISSIONER OF INCOME TAX .. .APPELLANT CIRCLE - 4 , AHMEDABAD . VS. HARSH A ENGINEERS LTD. .. . RESPONDENT 403, ASHWAMEGH HOUSE, 5, SMRUTI KUNJ SOCIETY, CHOICE RESTAURANT STREET, SWASTI K CHAR RASTA, NAVRANGPURA, A HMEDABAD. [PAN: A A A C H 4828 C ] APPEARANCES BY: S.L. CHANDEL , FOR THE APPELLANT TUSHAR HEMANI , FOR T HE RESPONDENT D ATE OF CONCLUDING THE HEARING : MARCH 9 TH , 201 6 DATE OF PRONOUNCING THE ORDER : MARCH 10 TH , 201 6 O R D E R PER PRAMOD KUMAR , AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDE R DATED 27 TH NOVEMBER, 2012, PASSED BY THE LD. CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR 20 10 - 11, ON THE FOLLOWING GROUNDS : - 1. TH E ID . CIT(A ) HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION OF RS.1,04,82,783/ - MADE ON ACCOUNT OF THE CLAIM OF ASSESSEE FOR DEDUC T ION U/S. 80IA(4)(IV)(A), WITHOUT A PPRECIATING THE FACT THAT THE JURISDICTIONAL I T AT HAD DECIDED THE ISSUE IN FAVOUR OF REVENUE IN THE CASE OF GOLDMI NE SHA R ES & FINANCE PVT. LTD. IN ITA NO.4044 TO 4049/AHD/2003 DATED 30.04.2008 (A.YRS. 97 - 98 TO 2002 - 03). ITA NO. 429 /AHD/201 3 ASSESSMENT YEA R: 20 10 - 11 PAGE 2 OF 4 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE ID . CIT(A ) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3 . IT IS, THEREFOR E, PRAYED THAT THE ORDER OF THE LD. CIT(A ) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, TUSHAR HEMANI, LEANED COUNSEL FOR THE ASSESSEE, INVITED OUT ATTENTION TO THE FACT THAT THE ISSUE STANDS COVERED, IN FAVOUR OF THE ASSESSEE, IN ASSESSEE S OWN CASE FOR T HE IMMEDIATELY PRECEDING TWO ASSESSMENT YEARS I.E. A.Y. 2008 - 09 & 2009 - 10 BY ORDER DATED 14 TH MAY, 2015 PASSED BY A CO - O R DINATE BENCH OF THIS TRIBUNAL. AS FOR T HE SPECIAL BENCH DECISION , IN THE CA S E OF ACIT VS. GOLDMINE SHARES & FINANCE PVT. LTD. , 116 TTJ 705 , REFERRED TO IN THE COUR SE OF HEARING, L EARNED COUNSEL FOR THE ASSESSEE POINT ED OUT THAT THIS DECISION IS NOW STANDS OVERRULED BY THE HON BLE MAD R AS HIGH CO URT S JUDGEMENT IN THE CASE OF V ELAYUDHASWAMY SPINNING MILLS (P) LTD . VS. ACIT , 340 ITR 477 . IT IS SUBMITTED THAT SUBSEQUENT TO THE AFORESAID DE CISION OF HON BLE MADRAS HIGH COURT, VARIOUS BENCHES OF THIS TRIBUNAL ARE CONSISTENTLY FOLLOWING THE LAW SO LAI D DOWN IN PREFERENCE OVER THE VIEWS OF THE SPECIAL BENCH IN THE CASE OF GOLDMINE SHARES & FINANCE PVT. LTD. (SUPRA). 3. WHILE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTS THE ABOVE FACTUAL POSITION , HE NEVERTHELESS RELIE S UPON THE STAND OF THE ASSESS ING OFFICER. 4. WE FIND THAT , AS THE LD . COUNSEL FOR THE ASSESSEE RIGHTLY POINTS OUT, THE ISSUE IS NOW INDEED COVERED , IN FAVOUR OF THE ASSESSEE , BY T HE TRIBUNAL S DECISION IN ASSESSE E S OWN CASE. WHEN SO DECIDING THE MAT T ER , THE CO - ORDINATE BENCH HAS TAK EN INTO ACCOUNT T HE VIEWS OF SPECIAL BE N CH IN THE CASE OF GOLDMINE SHARES & FINANCE PVT. LTD. (SUPRA) A S ALSO THE VIEWS EXPRESSED BY THE HON BLE MADRAS HIGH COURT IN THE CASE OF VELAYUDHASWAMY SPINNING MILLS (SUPRA) . ITA NO. 429 /AHD/201 3 ASSESSMENT YEA R: 20 10 - 11 PAGE 3 OF 4 T HERE CANNOT BE ANY DISPUTE ON THE FUN DAMENT LEGAL POSITION ONCE A HIGHER TIER OF THE JUDICIARY EXPRESSES ITS VIEWS ON A MATTER DISAPPROVING THE IN TE RPRETATION BY A LOWER TIER OF JUDICIARY, THE VIEWS EXPRESSED BY LOWER TIER CEASE S TO HAVE BINDING EFFECT. THE FACT THAT THE VIEWS OF THE SPECIAL BENCH HAV ING BEEN DISAPPROVED BY HON BLE NON - JU RISDICTIONAL H IGH C OURT DOES NOT REALLY MAKE DIFFERENCE TO THIS FORUM INASMUCH AS EVEN THE DECISIONS OF HON BLE NON - JURISDICTIONAL H IGH C OURT BIND S US AS LONG A S NOTHING CONTRARY THERETO HAS BEEN HELD BY THE HON BLE JURISDICTIONAL HIGH COURT. 5. WHILE ON THIS ASPECT, WE MAY REFER TO HON BLE JURISDICTIONAL HIGH CURT S OBSERVATION, IN THE CASE OF CIT VS. MANGANLAL MOHANLAL PANCHAL (HUF) [(1994) 210 ITR 580 (GUJ)] : . AT THE TIME WHEN THE TRIBUNAL DECIDED THE APPEAL, THAT WAS THE ONLY DECISION IN THE FIELD AND, THEREFORE, IN VIEW OF WHAT THE BOMBAY HIGH COURT HAS HELD IN CIT VS. SMT. GODAVARIDEVI SARAF (1978) 113 ITR 589 (BOM) AND CIT VS. SMT. NIRMALABAI K. DAREKAR (1990) 186 ITR 242 (BOM), THE TRIBUNAL WA S BOUND TO FOLLOW THE SAID JUDGMENT OF THE MADRAS HIGH COURT. IT, THEREFORE, CANNOT BE SAID THAT THE TRIBUNAL COMMITTED AN ERROR IN FOLLOWING THE SAID JUDGMENT OF THE MADRAS HIGH COURT. IN VIEW OF THE SAID DECISION OF THE MADRAS HIGH COURT, THE ONLY COURS E WHICH THE TRIBUNAL COULD HAVE FOLLOWED WAS TO DIRECT THE ITO TO CONSIDER THE PARTIAL PARTITION ON THE MERITS AND PASS AN ORDER UNDER S. 171 FIRST AND THEN UNDER S. 143(3) OF THE ACT. 6. GRIEVANCE RAISED BY THE ASSESSING OFFICER, THEREFORE, IS WHOLLY DE VOID OF LEGALLY SUSTAINABLE MERIT . WE REJECT THE SAME AND DECLINE TO INTERFERE IN THE MATTER . 7 . IN THE RESULT, THE APPEAL IS DISMISSED. P RONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF MARCH, 2016 . SD/ - SD/ - S.S. GODARA PR AMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) PBN/* DATED: THE 10 TH DAY OF MARCH, 201 6 . ITA NO. 429 /AHD/201 3 ASSESSMENT YEA R: 20 10 - 11 PAGE 4 OF 4 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD