JAWAHARLAL NEJRU PORT TRUST, MUMBAI V. ADDL CIT PANVEL, PANVEL

ITA 5912/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71919 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 31-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 24-08-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Assessee Lawyers: H K PANDA
• Keywords: Business income; Depreciation; Opportunity of being heard; Rule of consistency; Retrospective amendment
• Section: 143(3); 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ./I.T.A. NO.5912/M/2011 ( / ASSESSMENT YEAR: 2008 - 2009 ) M/S. JAWAHARLAL NEHRU PORT TRUST, ADMINISTRATION BUILDING, SHEVA, TAL URAN, MUMBAI. / VS. ADDL. CIT, PANVEL. ./ PAN : AABCJ 2372 E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI H.K. PANDA, AR / RESPONDENT BY : SHRI S.D. SRIVASTAVA, CIT - DR / DATE OF HEARING : 04.12.2013 / DATE OF PRONOUNCEMENT : 11 .12.2013 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 24.8.2011 IS AGAINST THE ORDER OF THE CIT (A) - 1, THANE DATED 27.5.2011 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS, WHICH READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN IN LAW, THE CIT (A) ERRED IN CONFIRMING THE ACTION OF THE LD AO ASSESSING THE INCOME OF THE APPELLANT AS BUSINESS INCOME UNDER SECTION 11(4) OF THE ACT, STATING THE REASON THAT THE APPELLANT IS CARRYING ON THE BUSINESS WHICH IS INCIDENTAL TO TH E ATTAINMENT OF THE OBJECT, INSTEAD OF ASSESSING THE SAME U/S 11(1)(A) OF THE ACT AS INCOME DERIVED FROM PROPERTY HELD. WITHOUT PREJUDICE TO THE GROUND NO.1 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN NOT DIRECTING THE AO TO DELETE THE ADDITION OF CONTAINER INCOME OF RS. 24,67,000/ - EVEN THOUGH THE SAME IS OFFERED TO TAXATION IN THE AY 2009 - 2010. 2. ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE AND IN LAW, CIT (A) ERRED IN NOT DIRECTING THE AO TO ALLOW THE CLAIM OF DEPRECIATION AS APPLICATION OF INCOME OF RS. 16,83,16,468/ - IN THE IMPUGNED ORDER. 3. ON THE FACTS AN D CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED I N NOT DIRECTING THE AO TO ALLOW THE CLAIM OF EXEMPTION U/S 10(34) OF THE ACT OF RS. 10,42,71,151/ - IN THE IMPUGNED ORDER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN NOT DIRECTING THE AO TO ALLOW THE CLAIM OF AD JUSTING THE CARRY 2 FORWARD OF EXCESS APPLICATION OF INCOME OF THE EARLIER YEARS CLAIMED IN THE COMPUTATION OF TOTAL INCOME. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT (A) ERRED IN NOT DIRECTING THE AO NOT TO CHARGING INTEREST U/S 23 4D OF THE ACT. 3. AT THE OUTSET, SHRI H.K. PANDA, AR, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT GROUND NO.1 IS NOT PRESSED. THEREFORE, THE SAID GROUND NO.1 IS DISMISSED AS NOT PRESSED. LATER, BRINGING OUR ATTENTION TO THE 5 GROUNDS RAISED BY THE ASSESSEE WITHOUT PREJUDICE , LD COUNSEL STATED THAT THE GROUND NO.1, WHICH RELATES TO ADDITION OF RS. 24,67,000/ - AND THE SAID INCOME WAS OFFERED IN THE AY 2009 - 2010. HE TOOK OBJECTION TO THE FACT THAT THE AO MADE ADDITION OF THE SAID AMOUNT IN THIS YEAR WITHOUT GRANTING RELIEF BY WAY OF REDUCTION OF INCOME RETURNED IN THE AY 2009 - 2010. THE SAID AMOUNT CANNOT BE ADDED OTHERWISE AND THEREFORE, SEEKS THE DIRECTION OF THE TRIBUNAL TO AO FOR CORRESPONDING REDUCTION OF INCOME IN THE ASSESSMENT YE AR, IF THEY INSIST ON ADDITION IN THE ASSESSMENT YEAR 2008 - 2009. FURTHER, HE ALSO MADE A STATEMENT AT BAR STATING THAT HE SHALL HAVE NO OBJECTION FOR MAKING ADDITION IN THIS YEAR. HOWEVER, HE SEEKS REDUCTION IN THE RETURN OF INCOME OF THE SUBSEQUENT ASSE SSMENT YEAR. 4. ON HEARING THE LD COUNSEL, WE FIND MERIT IN THE ARGUMENT. ACCORDINGLY, WE DIRECT THE AO TO GRANT RELIEF IN THE SUBSEQUENT ASSESSMENT YEARS AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUND NO.1 IS ALLOWED FOR STATISTICAL PURPOSES. 5. REFERRING TO GROUND NO.2 , WHICH RELATES TO DEPRECIATION OF RS. 16,83,16,468/ - AS APPLICATION INCOME, LD COUNSEL MENTIONED THAT AN IDENTICAL ISSUE WAS ADJUDICATED BY THE ITAT IN ASSESSEES OWN CASE VIDE ITA NO.1434/M/ 2010 (AY 2006 - 2007) DATED 21.11.2012 WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSE E. IN THIS REGARD, LD COUNSEL BOUGHT OUR ATTENTION TO PARA 18 TO 24 OF THE SAID ORDER OF THE TRIBUNAL. 6. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE ORDER OF THE TRIBUNAL (SUPRA) DATED 21.11.2012. ON PERUSAL OF THE SAID ORDER OF THE TRIBUNAL, WE FIND THAT PARAS 22 TO 24 ARE R ELEVANT IN THIS REGARD AND THE SAME ARE REPRODUCED HERE UNDER. 22. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. 3 WE FURTHER FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF THE TRIBUNAL. RECENTLY, THIS BENCH OF THE TRIBUNAL HAS CONSIDERED THE SIMILAR ISSUE IN THE CASE OF ADIT (E) VS. SHRI VILE PARLE KELVANI MANDAL IN ITA NO.7106/MUM/2011 FOR A.Y. 2008 - 09 ORDER DTD. 5 - 10 - 2012 AND AFTER CONSIDERING VARIOUS DECISIONS INCLUDING THE DECISION IN LISSIE MEDICAL INSTITUTIONS VS. CIT (2012) 348 ITR 344 (KER.) HAS HELD IN PARA 14 - 15 OF THE ORDER AS UNDER: - 14. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE. IN THE PRESENT CASE THE ASSESSEE IS NOT CLAIMING DOUBLE DEDUCTION ON ACCOUNT OF DEPRECIATION AS HAS BEEN HELD BY THE REVENUE AUTHORITIES. THE INCOME OF THE AS SESSEE BEING EXEMPT, THE ASSESSEE IS ONLY CLAIMING THAT DEPRECIATION SHOULD BE REDUCED FROM THE INCOME FOR DETERMINING THE PERCENTAGE OF FUNDS WHICH HAVE TO BE APPLIED FOR THE PURPOSE OF TRUST. THUS THERE IS NO DOUBLE DEDUCTION CLAIMED BY THE ASSESSEE. RE CENTLY THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. MARKET COMMITTEE, PIPLI (2011) 330 ITR 16 (P&H) AFTER DISTINGUISHING THE DECISION OF THE HONBLE SUPREME COURT IN ESCORTS LTD. VS. UOI (1993) 199 ITR 43 (SC) WHILE RELYING ON VARIOUS DECISIONS INCLU DING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN INSTITUTE OF BANKING (SUPRA) HAS HELD VIDE PENULTIMATE PARA 10 AS UNDER: - IN THE PRESENT CASE, THE ASSESSEE IS NOT CLAIMING DOUBLE DEDUCTION ON ACCOUNT OF DEPRECIATION AS HAS BEEN SUGGESTED BY LEARNED COUNSEL FOR THE REVENUE. THE INCOME OF THE ASSESSEE BEING EXEMPT, THE ASSESSEE IS ONLY CLAIMING THAT DEPRECIATION SHOULD BE REDUCED FROM THE INCOME FOR DETERMINING THE PERCENTAGE OF FUNDS WHICH HAVE TO BE APPLIED FOR THE PURPOSES OF THE TRUST. T HERE IS NO DOUBLE DEDUCTION CLAIMED BY THE ASSESSEE AS CANVASSED BY THE REVENUE. THE JUDGMENT OF THE HON'BLE SUPREME COURT IN ESCORTS LTD. CASE [1993] 199 ITR 43 IS DISTINGUISHABLE FOR THE ABOVE REASONS. IT CANNOT BE HELD THAT DOUBLE BENEFIT IS GIVEN IN ALLOWING CLAIM FOR DEPRECIATION FOR COMPUTING INCOME FOR PURPOSES OF SECTION 11. THE QUESTIONS PROPOSED HAVE, THUS, TO BE ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 15. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA), WHICH IS BINDING ON US AND THE CONSISTENT VIEW OF THE CO - ORDINATE BENCHES OF THE TRIBUNAL INCLUDING THE DECISION IN GKR CHARITIES (SUPRA) WHEREIN T HE TRIBUNAL AFTER CONSIDERING THE DECISION CITED BY THE LD. D.R. IN LISSIE MEDICAL INSTITUTIONS, KOCHI HAS HELD THAT IT IS SETTLED PRINCIPLE OF LAW THAT WHERE THERE ARE TWO DIFFERENT DECISIONS OF HIGH COURTS, ONE FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOW ED, UPHELD THE ORDER OF THE LD. CIT(A) IN DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE AND ACCORDINGLY WE ARE INCLINED TO UPHOLD THE FINDING OF THE LD. CIT(A) IN DELETING THE DISALLOWANCE MADE BY THE A.O. THE GROUND TAKEN BY THE REVENUE IS, THEREFORE, REJ ECTED. 23. IN ACIT VS. SHRI ADICHUNCHANAGIRI SHIKSHANA TRUST (2012) 19 ITR (TRIB)828 (BANGALORE) THE TRIBUNAL AFTER CONSIDERING THE DECISIONS INCLUDING THE DECISION IN DY. DIRECTOR OF INCOME TAX (EXEMPTIONS) V. LISSIE MEDICAL INSTITUTIONS (2010) 8 TAXMAN N.COM 82 (COCHIN ITAT) AND LISSIE MEDICAL INSTITUTIONS V. CIT (2012) 348 ITR 344 (KER) HAS UPHELD THE ORDER OF THE LD. CIT(A) IN DIRECTING THE A.O. TO GRANT THE DEPRECIATION. 24. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL HOLD THAT THERE IS NO DOUBLE DEDUCTION AND HENCE THE ASSESSEE IS ENTITLED TO THE DEDUCTION OF DEPRECIATION. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, ALLOWED. 4 8. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE AND FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THERE IS NO DOUBLE DEDUCTION AND HENCE, THE ASSESSEE IS ENTITLED TO THE DEDUCTION OF DEPRECIATION. ACCORDINGLY, GROUND NO.2 RAISED BY THE ASSESSEE IS ALLOW ED. 9. REFERRING TO GROUND NO.3 , WHICH RELATES TO EXEMPTION U/S 10(34) OF RS. 10,42,71,151/ - LD COUNSEL MENTIONED THAT THE SIMILAR ISSUE WAS ADJUDICATED BY THE TRIBUNAL VIDE IN ASSESSEES OWN CASE VIDE ITA NO.1434/M/2010 (AY 2006 - 2007) DATED 21.11.2012 WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN THIS REGARD, LD COUNSEL BOUGHT OUR ATTENTION TO PARA 12 TO 17 OF THE SAID ORDER OF THE TRIBUNAL. 10. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 11. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE ORDER OF THE TRIBUNAL (SUPRA) DATED 21.11.2012. ON PERUSAL OF THE SAID ORDER OF THE TRIBUNAL, WE FIND THAT PARAS 16 AND 17 ARE RELEVANT IN THIS REGARD AND THE SAM E ARE REPRODUCED HERE UNDER. 16. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE ORDER OF THE A.O. WHILE D ISTINGUISHING THE DECISIONS IN CIT VS. SILK & ART SILK MILLS ASSOCIATION LTD. (1990) 182 ITR 38 (BOM) AND HIS HOLINESS SILASRI KASIVASI MUTHUKUMARASWAMI THAMBIRAN AND OTHERS V. AGRICULTURAL I.T.O. (1978) 113 ITR 889 (MAD.) PASSED A VERY BRIEF ORDER ON THIS ISSUE WHICH IS AS UNDER (PARA 16.5): - THESE TWO CASES ARE NOT RELEVANT FOR THE CASE OF THE APPELLANT. EVEN IF THE INCOME IS EXEMPT, THE SAME HAS TO BE INCLUDED IN THE GROSS RECEIPTS AND HAS TO BE APPLIED AS PER PROVISIONS OF SECTION 11(1) BECAUSE INCOME HAS TO BE COMPUTED IN COMMERCIAL MANNER. ACCORDINGLY, I TAKE THE VIEW THAT THE ACTION OF THE A.O. IN THIS CONNECTION IS IN ORDER AND ACCORDINGLY THE GROUND IS DISMISSED. 17. SINCE THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUE PROPERLY AND HAS NOT PASSED A REASONED ORDER, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND SEND BACK THE MATTER TO HIS FILE TO DECIDE THE SAME AFRE SH IN THE LIGHT OF OUR OBSERVATION HEREINABOVE AND ACCORDING TO LAW INCLUDING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GENERAL INSURANCE CORPORATION OF INDIA VS. DCIT (2012) 204 TAXMAN 587 (BOM) AFTER PROVIDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSE. 12. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE AND FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THIS GROUND SHO ULD BE REMANDED TO THE FILES OF THE AO TO DECIDE THE MATTER AFTER. AO IS ALSO DIRECTED WRITE A SPEAKING ORDER 5 IN THE LIGHT THE RELEVANT PRECEDENTS AND IN ACCORDANCE WITH LAW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 13. REFERRING TO GROUND NO.4, WHICH RELATES TO ADJUSTING THE CARRY FORWARD OF EXCESS APPLICATION OF INCOME OF EARLIER YEARS CLAIMED IN COMPUTATION OF INCOME . LD COUNSEL MENTIONED THAT THE SIMILAR ISSUE WAS ADJUDICATED BY THE TRIBUNAL VIDE IN ASSESSEES OWN CASE VIDE ITA NO.1434/M/2010 (AY 2006 - 2007) DATED 21.11.2012 WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN THIS REGARD, LD COU NSEL BOUGHT OUR ATTENTION TO PARA 25 & 30 OF THE SAID ORDER OF THE TRIBUNAL. 14. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE O RDER OF THE TRIBUNAL (SUPRA) DATED 21.11.2012. ON PERUSAL OF THE SAID ORDER OF T HE TRIBUNAL, WE FIND THAT PARA 30 IS RELEVANT IN THIS REGARD AND THE SAME IS REPRODUCED HERE UNDER. 30. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IT HAS BEEN HELD BY THE A.O. THAT THE EXEMPTION U/S 11 IN THE EARLIER YEARS WAS NOT CLAIMED BY THE ASSESSEE AND THE RETURNS ARE BARRED BY LIMITATION, THEREFORE, THE QUESTION OF EXCESS APPLICATION DOES NOT ARISE. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD THE COPY OF THE TRIBUNAL ORDER IN ITA NO. 2206 TO 2208/M/2009 FOR A.Y. 2003 - 04 ORDER DTD. 30 - 9 - 2010 SINCE REPORTED IN (2011) 48 SOT 129 (MUM)(TRIB) (URO). ON GOING THR OUGH THE SAME WE FIND THAT THE TRIBUNAL (SUPRA) HAS REMITTED THE MATTER BACK TO THE FILE OF THE A.O. WITH A DIRECTION TO EXAMINE THE MATTER, ON MERIT, FOR ELIGIBILITY TO TAX EXEMPTION AS A RESULT OF THE REGISTRATION U/S 12AA NOW AVAILABLE TO THE ASSESSEE AND IN THE LIGHT OF THE REQUISITE AUDIT REPORT AND OTHER DOCUMENTS NOW FILED BY THE ASSESSEE. SINCE THE ASSESSMENTS FOR THE EARLIER ASSESSMENT YEARS ARE STILL PENDING, THEREFORE, WE ARE OF THE VIEW THAT, IN THE INTEREST OF JUSTICE, THE MATTER SHOULD GO BA CK TO THE FILE OF THE A.O. AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE A.O. TO DECIDE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATION HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSE . 16. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT SINCE, THE ASSESSMENTS FOR THE EARLIER AS SESSMENT YEARS ARE STILL PENDING, THEREFORE, IN THE INTEREST OF JUSTICE, THIS GROUND SHOULD ALSO BE REMANDED TO THE FILES OF THE AO FOR ADJUDICATING THE MATTER AFRESH. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND REMIT THE MATTER TO THE FILES OF THE AO, WITH IDENTICAL DIRECTIONS, TO DECIDE THE SAME AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUND NO.4 IS ALLOWED FOR STATISTICAL PURPOSES. 6 17. REFERRING TO GROUND NO.5 , WHICH RELATES TO INTEREST U/S 234D OF THE ACT, LD COUNSEL MENTIONED THAT AN IDENTICAL ISSUE WAS ADJUDICATED BY THE TRIBUNAL VIDE IN ASSESSEES OWN CASE VIDE ITA NO.1434/M/2010 (AY 2006 - 2007) DATED 21.11.2012 WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE . IN THIS REGARD, PARAS 35 TO 37 OF THE SAID ORDER OF THE TRIBUNAL ARE RELEVANT . 18. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 19. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AU THORITIES AS WELL AS THE ORDER OF THE TRIBUNAL (SUPRA) DATED 21.11.2012. ON PERUSAL OF THE SAID ORDER OF TH E TRIBUNAL, WE FIND THAT PARA 35 TO 37 ARE RELEVANT IN THIS REGARD AND THE SAME IS REPRODUCED HERE UNDER. 35. WE HAVE CAREFULLY CONSIDERED THE SUBM ISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISSUE BEFORE US IS NO LONGER RES INTEGRA. THE HONBLE BOMBAY HIGH COURT IN CIT VS. M/S INDIAN OIL CORPORATION LTD. (2012) 210 TAXMAN 466 (BOM) VIDE PARA 27 OF THE JUDGMENT HAS HELD AS UNDER: - 27) IN VIEW OF THE ABOVE, WE HOLD THAT THE DECISION OF THE TRIBUNAL IN ITO .V. EKTA PROMOTERS PVT. LTD. REPORTED IN 113 ITD 719 WHICH HAS BEEN FOLLOWED IN THE IMPUGNED ORDER BY THE TRIBUNAL IS NOT CORRECT. ONE MORE ASPECT OF THE MATTER WHICH MUST BE BORNE IN MIND IS THAT TILL SUCH TIME AS THE ASSESSMENT PROCEEDINGS ARE COMPLETED IN RESPECT OF ANY ASSESSMENT YEAR, THE AMENDMENT MADE TO THE ACT WOULD BE APPLICABLE EVEN IN CASE OF PENDING PROCEEDINGS. IT IS NOT THE CASE OF THE RE SPONDENT THAT THE PROCEEDING IN REGARD TO REFUND WHICH HAS BEEN GRANTED UNDER SECTION - 143(1) OF THE ACT ARE CONCLUDED AND FINAL. THE REFUND WHICH HAS BEEN GRANTED UNDER SECTION 143(1) OF THE ACT IS PROVISIONAL, TO BE FINALLY DETERMINED WHEN FINAL ASSESSMEN T ORDER IS PASSED UNDER SECTION 143(3) OF THE ACT. EXPLANATION - 2 TO SECTION 234D OF THE ACT MAKES IT CLEAR THAT IT WOULD BE APPLICABLE TO PENDING PROCEEDINGS I. E. WHERE ASSESSMENTS IN RESPECT OF SUCH ASSESSMENT YEAR IS NOT COMPLETED ON 1/6/2003. 36. RECENTLY THE SPECIAL BENCH OF THE TRIBUNAL IN KOTAK MAHINDRA CAPITAL CO. LTD. VS. ACIT (2012) 138 ITD 57 (MUM) [SB] HAS ALSO CONSIDERED THE SIMILAR ISSUE AND HAS HELD VIDE PARA 48 OF THE ORDER AS UNDER: - 48 . AS REGARDS THE ISSUE INVOLVED IN GROUND NO.3 R ELATING TO LEVY OF INTEREST U/S.234D, IT IS OBSERVED THAT EXPLANATION 2 HAS BEEN INSERTED IN SEC.234D BY THE FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 1.6.2003 CLARIFYING THAT THE PROVISIONS OF SEC.234D SHALL ALSO APPLY TO THE ASSESSMENT YEAR COMMEN CING BEFORE THE FIRST DAY OF JUNE, 2003 IF THE PROCEEDINGS IN RESPECT OF SUCH ASSESSMENT YEAR IS COMPLETED AFTER THE SAID DATE. IN THE PRESENT CASE THE ASSESSMENT YEAR INVOLVED IS AY 2003 - 04 AND SINCE THE PROCEEDINGS IN RESPECT OF THE SAID YEAR HAS BEEN CO MPLETED ON 30.11.2005, WE ARE OF THE VIEW THAT THE ASSESSEE IS LIABLE TO PAY AN INTEREST U/S.234D AS PER EXPLANATION 2 TO SEC.234D INSERTED BY THE FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 1.6.2003. IN THAT VIEW OF THE MATTER WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT (A) CONFIRMING THE INTEREST CHARGED BY THE AO U/S.234D AND DISMISS GROUND NO.3 OF THE ASSESSEE'S APPEAL. 37. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WE ARE OF THE VIEW THAT THE A.O. WAS JUSTIFIED IN CHARGING THE INTEREST U/S 234D OF THE ACT AND ACCORDINGLY WE DECLINE 7 TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(A) ON THIS ACCOUNT. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, REJECTED. 20. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE OF CHARGING THE INTEREST UNDER SEC TION 234D OF THE ACT AT THE LEVEL OF BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. INDIAN OIL CORPORATION LTD [2012] 210 TAXMANN 466 (BOM), WHEREIN IT WAS HELD THAT EXPLANATION 2 TO SECTION 234D OF THE ACT MAKES IT CLEAR THAT IT WOULD BE APPLICABLE TO PENDING PROCEEDINGS I.E., WHERE ASSESSMENT IN RESPECT OF SUCH ASSESSMENT YEAR IS NOT COMPLETED ON 1.6.2003 . RESPECTFULLY FOLLOWING THE ABOVE CITED DECISIONS AND THE GROUND TAKEN BY THE ASSESSEE IS REJECTED. ACCORDINGLY, GROUND NO.5 IS DISMISSED. 21. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONO UNCED IN THE OPEN COURT ON 1 1 T H DECEMBER, 2013. S D / - S D / - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI ; 11. 12 .2013 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI