ZEE ENTERTAINMENT ENTERPRISES LTD, MUMBAI V. ASST CIT CIR 11(1), MUMBAI

ITA 6298/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5536 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 1995-1996
• Appeal Filed On: 25-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KALRA
• Assessee Lawyers: NIRAJ SHETH SHRI JAY BHANSALI
• Keywords: Tax effect; Condonation of delay
• Section: 143(3); 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI C.N. PRASAD , JM ITA NO. 6298 / MUM/20 16 TO 6300/MUM/2016 ( ASSESSMENT YEAR : 1995 - 96 TO 1997 - 98 ) M/S. ZEE ENTERTAINMENT ENTERPRISES LTD., 18 TH FLOOR, A - WING , MARATHON FUTUREX N.M. JOSHI MARG LOWER PAREL MUMBAI 400 013 VS. ASST. COMMISSIONER OF INCOME TAX, RANGE 11(1) MUMBAI 400 020 PAN/GIR NO. AAACZ0243R APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI NIRAJ SHETH SHRI JAY BHANSAL I REVENUE BY MS. VIDISHA KALRA DATE OF HEARING 30 / 05 /201 8 DATE OF PRONOUNCEMENT 24 / 07 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) - 3, MUMBAI DATED 01/01/2010 F OR THE A.Y.1995 - 96, 1996 - 97 AND 1997 - 98 IN THE MATTER OF ORDER PASSED U/S.150 OF THE INCOME TAX ACT. 2. GRIEVANCE OF THE ASSESSEE IN ALL THE YEARS RELATES TO UPHOLDING DEDUCTION U/S.80HHC OF THE ACT TO BE ALLOWED WITH REFERENCE TO INCOME AFTER REDUCING PRO FIT OF 80IA MANUFACTURING UNIT INSTEAD OF BOTH INCENTIVES TO BE CALCULATED INDEPENDENTLY WITH REFERENCE TO PROFIT OF THE UNIT. ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 2 3. THERE WAS A SUBSTANTIAL DELAY IN FILING THE APPEAL IN ALL THE YEARS UNDER CONSIDERATION. THE ASSESSEE HAS FILED AN AFFIDAVIT E XPLAINING THE REASONS FOR DELAY WHICH READS AS UNDER: - AFFIDAVIT IN SUPPORT OF APPLICATION FOR CONDONATION OF DELAY I, MR. PUNIT GOENKA, SON OF SHRI SUBHASH CHANDRA, THE MANAGING DIRECTOR OF APPLICANT, HAVING MY OFFICE AT 1 8TH FLOOR, MARATHON FUTUREX, N.M JOSHI MARG, LOWER PAREL, MUMBAI - 400 013 AND IDENTIFIED BY MY PERMANENT ACCOUNT NUMBER AAEPG2529E DO HEREBY SOLEMNLY AFFIRM AND STATE AS FOLLOWS: - 1. I SAY THAT I AM FILING THE PRESENT APPLICATION FOR CONDONATION OF DELAY IN FILING THE ABOVE APPEAL. I SAY THAT THE ORDER DISPOSING OF THE APPEAL FILED BY THE APPLICANT BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, MUMBAI WAS PASSED ON 1 ST JANUARY 2010 AND RECEIVED BY US ON 27 LH JANUARY, 2010. BY THE SAID ORDER, THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 HELD THAT DEDUCTION U/S 80HHC WAS TO BE ALLOWED WITH REFERENCE TO ELIGIBLE PROFITS AFTER REDUCING DEDUCTION U/S 80IA OF THE ACT. 2. I SAY THAT THE ORDER DATED 1 ST JANUARY 2010 WAS RECEIVED BY THE APPLICANT ON 27 TH JANUARY 2010 AND HENCE TH E LAST DATE FOR FILING AN APPEAL BEFORE THIS HONBLE TRIBUNAL FELL ON 28 TH MARCH 2010; I SAY THAT THE ABOVE APPEALS HAVE BEEN LODGED ON 25 TH OCTOBER, 2016 AND THERE IS THEREFORE A DELAY OF 2403 DAYS IN FILING THE APPEAL. 3. I SAY THAT THE ABOVE DELAY I S CAUSED IN THE FOLLOWING CIRCUMSTANCES: 4. I SAY THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 VIDE ORDER DATED 1 ST JANUARY 2010 DIRECTED THE ASSESSING OFFICER TO REDUCE DEDUCTION UNDER SECTION 80IA FROM ELIGIBLE PROFITS WHILE COMPUTING DEDUCTION UND ER SECTION 80HHC OF ACT RELYING ON THE DECISION OF THE SPECIAL BENCH OF THE HON'BLE DELHI TRIBUNAL IN THE CASE OF HINDUSTAN MINT & AGRO PRODUCTS [123 TTJ 577 (DEL.) (SB)]. SINCE THERE WAS NO CONTRARY DECISION IN FAVOUR OF THE APPLICANT OF THE JURISDICTIONA L HIGH COURT, THE DECISION OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 WAS ACCEPTED AND NO APPEAL WAS PREFERRED TO THE HON'BLE TRIBUNAL. 5. I SAY THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (P.) LTD. VS. DCIT 332 ITR 4 2 CAME TO BE PASSED ON 10 TH JANUARY 2011 HOLDING THAT THE DEDUCTION UNDER SECTIONS 80HHC AND SECTION 80IA WAS TO BE COMPUTED INDEPENDENTLY. THEREFORE, THE LEGAL POSITION WAS RESOLVED BY THE HON'BLE BOMBAY HIGH COURT IN FAVOUR OF THE ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 3 APPLICANT AND THE VIEW OF THE COMMISSIONER INCOME TAX (APPEALS) - 3 VIEW WAS IMPLIEDLY OVERRULED. 6. I SAY THAT THE ASSESSING OFFICER HOWEVER VIDE ORDER DATED 12 TH APRIL 2011 GAVE EFFECT TO THE ORDER OF COMMISSIONER OF INCOME - TAX (APPEALS) - 3 AND COMPUTED THE DEDUCTION UNDER SECT ION 80HHC OF THE ACT AFTER REDUCING DEDUCTION UNDER SECTION 80IA THEREFROM, IN ACCORDANCE WITH THE DIRECTION OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 AND CONTRARY TO THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (P. ) LTD. (SUPRA). 7. I SAY THAT AS A RESULT OF THE BINDING DECISION OF HON'BLE BOMBAY HIGH COURT THE APPLICANT FILED A LETTER DATED 15 TH JUNE 2011 BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 URGING HIM TO RECALL AND RECTIIY HIS ORDER AND ALLOWING THE DUE RELIE F AS CONTEMPLATED BY THE HON'BLE BOMBAY HIGH COURT. ANNEXED AND MARKED AS 'EXHIBIT A' HEREWITH IS COPY OF THE LETTER DATED 15 TH JUNE 2011. I SAY THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 HAS NOT YET DECIDED THE RECTIFICA TIO N APPLICATION D ATED 15 TH JUNE 2011 FILED BY THE APPLICANT. I SAY THAT, THE APPLICANT HAS EVEN FILED A REMINDER LETTER DATED 25 TH OCTOBER 2016 URGING HIM TO DECIDE ON THE AFORESAID MATTER AT THE EARLIEST. ANNEXED AND MARKED AS 'EXHIBIT B' HEREWITH IS COPY OF THE LETTER D ATED 25 TH OCTOBER 2016. 8. I SAY THAT SINCE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 HAS NOT TILL DATE DISPOSED OF THE RECTIFICATION APPLICATION FILED BY THE APPLICANT, THE APPLICANT IS CONSTRAINED TO FILE THE PRESENT APPEAL TO THE HON'BLE TRIBUNAL AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 DATED 1 ST JANUARY 2010 OUT OF ABUNDANT CAUTION SO AS NOT TO BE LEFT COMPLETELY WITHOUT REMEDY. I SAY THAT HAD THE COMMISSIONER OF INCOME - TAX (APPEALS) - 3 DISPOSED OF THE APPLICANT'S RECTIFICATION A PPLICATION DATED 15 TH JUNE 2011, MULTIPLE LITIGATIONS COULD HAVE BEEN AVOIDED. 9. I SAY THAT THE DELAY, IF ANY IN FILING THE PRESENT APPEAL HAS OCCURRED IN THE AFORESAID CIRCUMSTANCES. 10. I SAY THAT IN THE INTEREST OF JUSTICE THAT THE DELAY, IF ANY IN F ILING THE APPEAL MAY BE CONDONED AND THE APPEAL BE DECIDED ON MERITS 4. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. WE HAVE ALSO CAREFULLY GONE THROUGH THE AFFIDAVIT FILED EXPLAINING THE REASONS FOR DELAY. THE HON'BLE SUPREME COURT IN THE CASE O F COLLECTOR, LAND ACQUISITION VS. MST KATJI & OTHERS (167 ITR 471) OBSERVED THAT : THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING SEC 5 OF LIMITATION ACT IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES DISPOSING OF MATTER ON 'MERITS'. THE EXPRESSION 'SUFFICIENT CAUSE' ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 4 EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB SERVES THE ENDS OF JUSTICE THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE I NSTITUTION OF COURT. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. AND SUCH A LIBER AL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT: (I) ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. (II) REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. (III) 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. (IV) WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUS TICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. (V) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON A CCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. (VI) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 5. FURTHERMORE, THE HON'BLE SUPREME COURT IN THE CASE OF N. BAL KRISHNAN V/S. M. KRISHNAMURTHY - [(1998) 7 SCC 123] OBSERVED THAT: THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE THE DISPUT E BETWEEN THE PARTIES & TO ADVANCE SUBSTANTIAL JUSTICE. THE TIME LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOULD TRANSFORM IN TO A GOOD CAUSE. RULES OF LIMITATION ARE NOT MEANT TO DE STROY THE RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEN THEIR REMEDY PROMPTLY. LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM 'INTEREST REPUBLIC UP SIT FINIS LITHIUM' (IT IS FOR GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES. THERE IS NO PRESUMPTION THAT DELAY IN ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 5 APPROACHING THE COURT IS ALWAYS DELIBERATE. IN EVERY CASE OF DELAY, THERE CAN BE SOME LAPSE ON THE PARTY OF THE LITIGANT CONCERNED . THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS NOT PUT FORTH AS PER OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSIDERATION TO THE SUITOR. 6. IN THE CASE OF CONCORD OF INDIA INSURANCE CO. LTD. V. SMT. NIRMALA DEVI AIR 1979 SC 1666, THE SUPREME COURT HAS HELD THAT A LEGAL ADVICE TENDERED BY A PROFESSIONAL AND THE LITIGANT ACTING UPON IT ONE WAY OR THE OTHER COUL D BE A SUFFICIENT CAUSE TO SEEK CONDONATION OF DELAY AND COUPLED WITH THE OTHER CIRCUMSTANCES AND FACTORS FOR APPLYING LIBERAL PRINCIPLES AND THEN SAID DELAY CAN BE CONDONED. EVENTUALLY, AN OVERALL VIEW IN THE LARGER INTEREST OF JUSTICE HAS TO BE TAKEN. NO NE SHOULD BE DEPRIVED OF ADJUDICATION ON MERITS UNLESS THE COURT OF LAW OR THE TRIBUNAL/APPELLATE AUTHORITY FINDS THAT THE LITIGANT HAS DELIBERATELY AND INTENTIONALLY DELAYED FILING OF THE APPEAL THAT HE IS CARELESS, NEGLIGENT AND HIS CONDUCT IS LACKING IN BONA FIDES. 7. APPLYING THE PROPOSITION LAID DOWN IN THE ABOVE JUDICIAL PRONOUNCEMENTS AND KEEPING IN VIEW THE SUBSTANTIAL INTEREST OF JUSTICE WE CONDONE THE DELAY IN FILING THE APPEALS AND THE APPEALS ARE BEING HEARD ON MERITS. 8. WITH REGARD TO ASSESSEE S CLAIM FOR DEDUCTION UNDER SECTIONS 80IA AND 80HHC, WE OBSERVE THAT FOR THE RELEVANT ASSESSMENT YEARS UNDER CONSIDERATION THE ASSESSING OFFICER VIDE ORDER UNDER SECTION 143(3) OF THE ACT HAD DISALLOWED THE ASSESSEE'S CLAIM FOR DEDUCTION UNDER SECTION 80H HC OF THE ACT, WHICH WAS CONFIRMED BY THE CIT(A). AGGRIEVED BY THE AFORESAID ORDER OF THE CIT(A), THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT. BEFORE THE TRIBUNAL, THE ASSESSEE MADE AN ADDITIONAL CLAIM FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. THE TRIB UNAL ALLOWED DEDUCTION UNDER SECTIONS 80HHC AND 80IA OF THE ACT IN PRINCIPLE AND DIRECTED THE ASSESSING OFFICER TO VERIFY AND COMPUTE THE SAME. THEREAFTER, THE ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 6 ASSESSING OFFICER VIDE ORDER DATED 12.04.2007 WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL C OMPUTED DEDUCTION UNDER SECTION 80IA ON THE BALANCE PROFITS AFTER REDUCING DEDUCTION UNDER SECTION 80HHC OF THE ACT. 9. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) CONTENDING THAT THE DEDUCTION UNDER SECTIONS 80IA AND 80HHC ARE TO BE COMPUTED INDEPENDEN TLY. THE CIT(A) VIDE ORDER DATED 1 ST JANUARY 2010, DIRECTED THE ASSESSING OFFICER TO REDUCE THE DEDUCTION UNDER SECTION 80IA WHILE COMPUTING DEDUCTION UNDER SECTION 80HHC. HE RELIED ON THE DECISION OF THE SPECIAL BENCH OF THE DELHI TRIBUNAL IN THE CASE OF HINDUSTAN MINT & AGRO PRODUCTS [123 TTJ 577 (DEL.) (SB). 10. THEREAFTER, THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (P.) LTD. VS. DCIT [332 ITR 42] PASSED ITS JUDGMENT AND ORDER DATED 10 TH JANUARY 2011 HOLDING THAT THE DEDUCT ION UNDER SECTIONS 80HHC AND SECTION 80IA WERE TO BE COMPUTED INDEPENDENTLY. THEREFORE, THE LEGAL POSITION WAS RESOLVED BY THE HON'BLE BOMBAY HIGH COURT IN FAVOUR OF THE ASSESSEE AND THE VIEW OF THE CIT(A) WAS IMPLIEDLY OVERRULED. 11. AS A RESULT OF THE BI NDING DECISION OF HON'BLE BOMBAY HIGH COURT, THE ASSESSEE FILED A LETTER DATED 15 TH JUNE 2011 BEFORE THE CIT(A) URGING HIM TO RECALL AND RECTIFY HIS ORDER AND ALLOW THE ASSESSEE'S CLAIM IN CONSONANCE WITH THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN AS SOCIATED CAPSULES CASE (SUPRA). THE SAID RECTIFICATION APPLICATION HAS NOT BEEN DISPOSED OF BY THE CIT(A) TILL DATE. IN THE MEANTIME, THE ASSESSING OFFICER, VIDE ORDER DATED 12 TH APRIL 2011 (FOR A.Y. 1995 - 96), I.E. AFTER THE DECISION IN THE ASSOCIATED CAPS ULES' CASE (SUPRA) ALLOWED THE DEDUCTION UNDER SECTION 80HHC OF THE ACT AFTER REDUCING DEDUCTION UNDER SECTION 80IA THEREFORE, CONTRARY TO THE DECISION RENDERED BY THE HON'BLE BOMBAY HIGH COURT. ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 7 12. FOR ASSESSMENT YEARS 1996 - 97 AND 1997 - 98, THE ASSESSEE FI LED AN APPEAL BEFORE THE CIT(A) AGAINST THE AFORESAID ORDER GIVING EFFECT. THE CIT(A) DISMISSED THE SAID APPEALS VIDE ORDER DATED 12 TH JANUARY 2015 AND 2 ND JANUARY 2015 RESPECTIVELY. HOWEVER, THE ASSESSEES RECTIFICATION APPLICATION DATED 15 TH JUNE 2011 WA S COMPLETELY IGNORED BY HIM, THOUGH FILED IN AN EARLIER POINT OF TIME. NO APPEAL WAS FILED FOR A.Y. 1995 - 96 SINCE THERE WAS NO TAX EFFECT ON ACCOUNT OF THE PRESENT DISPUTE IN QUESTION. 13. AGGRIEVED BY THE AFORESAID ORDERS OF CIT(A), THE ASSESSEE PREFERRED AN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE ASSESSEE ALSO FILED REMINDER LETTERS DATED 25 TH OCTOBER 2016 AND 14 TH DECEMBER 2016 REQUESTING THE CIT(A) TO PROCESS THE APPLICATION DATED 15 TH JUNE 2011. THE TRIBUNAL VIDE ITS ORDER DATED 26 TH OCTOB ER 2016 GAVE A SPECIFIC DISCRETION TO THE CIT(A) TO DISPOSE OF THE ASSESSEES RECTIFICATION APPLICATION DATED 15 TH JUNE 2011. IN THIS REGARD WE OBSERVE THAT IN SPITE OF THE SPECIFIC DIRECTION OF THE TRIBUNAL, THE CIT(A) HAS NOT YET DECIDED THE RECTIFICATIO N APPLICATION. SINCE, DESPITE SEVERAL REMINDERS, THE CIT(A) DID NOT DECIDE THE ASSESSEES RECTIFICATION APPLICATION, THE ASSESSEE WAS CONSTRAINED TO FILE APPEALS AGAINST THE CIT(A)'S ORDER DATED 1 ST JANUARY 2010 ALONG WITH AN APPLICATION FOR DELAY. 14. AFT ER THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (SUPRA), WE OBSERVE THAT DEDUCTION UNDER SECTIONS 80HHC AND 80IA ARE TO BE ALLOWED INDEPENDENTLY. ACCORDINGLY THE ORDER OF THE CIT(A) SUFFERS FROM LEGAL INFIRMITY SINCE THE RE IS NO CONTRARY DECISION TO THE SAID DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (SUPRA). 15. IT WAS ARGUED BY THE LEARNED D.R. THAT THE CIT(A) COULD NOT ENTERTAIN THE RECTIFICATION APPLICATION AGAINST HIS ORDER DATED 01. 01.2010 SINCE THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 8 ASSOCIATED CAPSULES (SUPRA) WAS RENDERED LATE. THE POSITION AS ON THE DATE OF PASSING THE ORDER BY THE CIT(A) SHOULD BE TAKEN INTO ACCOUNT. 16. IN THIS REGARD WE OBSERVE THAT A SUBS EQUENT DECISION OF THE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD. RELIANCE IS PLACED ON THE FOLLOWING DECISIONS: ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [305 ITR 227][SC] CIT VS. NARANG INTERNATIONAL HOTELS P. LTD . [ITA 1316 OF 2014][BOM.] 17. IT WAS ALSO ARGUED BY THE LEARNED D.R. THAT THE AO HAS RIGHTLY GIVEN EFFECT TO THE ORDER OF THE CIT(A) DATED 1 ST JANUARY, 2010 AND THE APPEAL AGAINST THE SAME DOES NOT LIE. AS PER OUR CONSIDERED VIEW IN THE INTEREST OF THE SUBSTANTIAL JUSTICE, THE CIT(A) OUGHT TO HAVE FIRST RECTIFIED HIS ORDER DATED 1 ST JANUARY, 2010 AND THEN DECIDE THE ASSESSEES APPEAL. INSTEAD, HE DISMISSED THE ASSESSEES APPEAL ON A TECHNICAL GROUND WITHOUT FIRST DECIDING THE RECTIFICATION APPLICATION. THUS SUBSTANTIAL PREJUDICE AND INJUSTICE WAS CAUSED TO THE ASSESSEE. THE TRIBUNAL VIDE ORDER DATED 26 TH OCTOBER, 2016 TOOK COGNIZANCE OF THE FACT AND DIRECTED THE CIT(A) TO DISPOSE OF THE RECTIFICATION APPLICATION. YET, THE RECTIFICATION APPLICATION CONTIN UES TO REMAIN PENDING. THEREFORE, THE FILING OF THE CAPTIONED APPEALS BECAME NECESSARY. 18. IN VIEW OF THE ABOVE DISCUSSION AND RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (SUPRA), WE DIRE CT THE AO TO COMPUTE THE DEDUCTION UNDER SECTIONS 80IA AND 80HHC INDEPENDENTLY AND CONSIDER THE SAME IN TERMS OF THE BINDING DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (SUPRA). WE DIRECT ACCORDINGLY. 19. AS THE FAC TS AND CIRCUMSTANCES AND THE ISSUES IN THE OTHER TWO APPEALS ARE THE SAME, FOLLOWING THE REASONING GIVEN HEREIN ABOVE, WE DIRECT THE AO TO CONSIDER ASSESSEES CLAIM OF DEDUCTION UNDER SECTIONS ITA NO. 6298/MUM/2016 M/S. ZEE ENTERTAINMENT LTD., 9 80IA AND 80HHC INDEPENDENTLY IN TERMS OF THE DECISION OF THE HO NBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ASSOCIATED CAPSULES (SUPRA), 20. IN THE RESULT, APPEALS ARE ALLOWED IN PART FOR STATISTICAL PURPOSES, IN TERMS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 / 07 /201 8 SD / - ( C.N. PRASAD ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 24 / 07 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT . 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//