DCIT 8(2), MUMBAI V. ORBITECH LTD, MUMBAI

ITA 4537/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2181 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 03-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT KUMAR SINHA
• Assessee Lawyers: K K LALKAKA
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C : MUMBAI BEFORE SHRI D. MANMOHAN, HON BLE VICE PRESIDENT AND SHRI R.K.PANDA , ACCOUNTANT MEMBER ITA. NO. 4537 /MUM/ 2009 ASSESSMENT YEAR 2003 - 2004 DCIT - 8 (2) MUMBAI 400 0 20. VS. M/S. ORBITECH LI MITED MUMBAI 400 069 PAN AAACC - 5736 - G (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI AJIT KUMAR SINHA (CIT - DR) FOR RESPONDENT : SHRI K.K. LALKAKA (AR) ORDER PER D. MANMOHAN, V.P. 1. THE FOLLOWING GROUND WAS URGED BY THE REVENUE : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE INTEREST OF RS.3,09,49,350/ - UNDER SECTION 234D LEVIED BY THE ASSESSING OFFICER, WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. ASSESSING OFFICER LEVIED INTEREST UNDER SECTION 234D OF THE ACT PRESUMABLY BASED UPON PROVISIONS AMENDED W.E.F. 1 - 6 - 2003. ON AN APPEAL FILED BY THE ASSESSEE LEARNED CIT(A) OBSERVED AS UNDER : 3.2. THE HON BLE ITAT DELHI BENCH E (SPECIAL BENCH), NEW DEL HI IN THE CASE OF ITO VS. EKTA PROMOTERS (P) LTD. (2008) 113 ITD 719 HAS HELD AS UNDER : 2 SECTION 234D OF THE INCOME TAX ACT, 1961 REFUNDS INTEREST ON EXCESS REFUND ASSESSMENT YEARS 1998 - 99 TO 2000 - 01 WHETHER PROVISIONS OF SECTION 234D ARE SUBSTAN TIVE AND THEY CANNOT BE APPLIED RETROSPECTIVELY HELD, YES WHETHER PROVISIONS OF SECTION 234D, WHICH HAS BEEN BROUGHT ON STATUTE FORM 01 - 06 - 2003, WILL HAVE APPLICATION ONLY WITH EFFECT FROM ASSESSMENT YEAR 2004 - 05 AND, THEREFORE, INTEREST UNDER SECTION 234D CANNOT BE CHARGED FOR EARLIER YEARS EVEN THOUGH REGULAR ASSESSMENTS FOR THOSE YEARS AFTER SAID DATE HELD YES. 3.3. KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTANCES THAT INTEREST U/S. 234D IS NOT LEVIABLE BECAUSE IT WAS APPLICABLE W.E.F. 01 - 06 - 2003, TH EREFORE, THE INTEREST LEVIED U/S. 234D IS NOT SUSTAINABLE, HENCE DELETED AND THE GROUND OF APPEAL IS ALLOWED. 3. AGGRIEVED, REVENUE PREFERRED AN APPEAL BEFORE US. HOWEVER, LEARNED DR WAS NOT ABLE TO PLACE ON RECORD ANY CONTRARY DECISION TO SHOW THAT AME NDMENT BROUGHT INTO THE STATUTE BOOK IS APPLICABLE RETROSPECTIVELY TO THE ASSESSMENT YEAR UNDER CONSIDERATION. 4. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE LEARNED CIT(A) WAS JUSTIFIED IN FOLLOWING THE DECISION OF THE I TAT, DELHI SPECIAL BENCH IN THE CASE OF ITO VS. EKTA PROMOTERS (P) LTD. (2008) 113 ITD 719 (SUPRA) AND THUS WE UPHOLD HIS ORDER AND DISMISS THE APPEAL FILED BY THE REVENUE. 3 ITA. NO. 4537/MUM/2009 M/S. ORBITECH LIMITED ORDER PRONOUNCED ACCORDINGLY SD/ - SD/ - (R.K.PANDA ) ( D MANMOHAN ) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI : D ATED: 20 TH APRIL, 2010 VBP/ - COPY FORWARDED TO: 1 DCIT - 8 (2), R.NO. 216 - A, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 0 20. 2 M/S. ORBITECH LIMIT ED, UNIT NO. 133, SDF - 5, SEEPZ, ANDHERI (EAST), MUMBAI 400 069 PAN AAACC - 5736 - G 3 CIT (A) - VIII, MUMBAI . 4 CIT - VIII, MUMBAI. 5 DR C BENCH 6. GUARD FILE /TRUE COPY/ BY ORDER + A SSISTANT R EGISTRAR , ITAT, MUMBAI