Shetrunjay Diamond, Surat V. ITO Ward-3(3)(4), Surat

ITA 737/SRT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2088 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-04-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPEND RA KUMAR
• Assessee Lawyers: SURESH K. KABRA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकरअपीलसं./ITA No. 737 & 738/SRT/2018 (Ǔनधा[रणवष[ / Assessment Year: (2014-15) (Physical Court Hearing) Shetrunjay Diamond, Plot No.10, Siddhakutir, B/h PP Savani Hospital, Kapodara, Surat-395006. Vs. The ITO, Ward-3(3)(4), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABVFS 5315 G Radhakrishna Diamond, Plot No.10, Siddhakutir, B/h PP Savani Hospital, Kapodara, Surat-395006. Vs. The DCIT, Circle-3(3), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAMFR 9268 D (Appellant) (Respondent) Assessee by : Shri Suresh K. Kabra, CA Revenue by : Shri Deependra Kumar, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 29/04/2022 घोषणाकȧतारȣख/Date of Pronouncement : 10/05/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned two appeals filed by the different assessees pertaining to assessment year (AY) 2014-15, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-3, Surat [in short “the ld. CIT(A)”] in Appeal No. CIT(A)/Surat-3/10605/2016-17 dated 31.08.2018, which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) of the Income Tax, Act, 1961 (hereinafter referred to as “the Act”). 2. Since, the issues involved in these two appeals are common and identical, therefore these two appeals have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. Page | 2 737 & 738/SRT/2018/AY.2014-15 737 Shetrunjay & Radhakrishna Diamond 3. The appeal filed by the assesse in ITA No.738/SRT/2018 for AY.2014-15 is barred by limitation by fourteen (14) days. The assessee has moved a petition requesting the Bench to condone the delay. We have heard the parties on this preliminary issue and having regard to the reasons given in the petition, we condone the delay and admit the appeal of hearing. 4. In the case of Radhakrishna Diamond, in ITA No. 738/SRT/2018 for AY.2014-15, none appeared on behalf of the assessee in spite of issuance of several notices. Since the issue is squarely covered by the judgment of the Hon'ble Gujarat High Court in the case of Gujarat State Road Transport Corporation (GSRTC), 41 taxmann.com 100 (Guj), therefore after hearing the Learned Departmental Representative (ld. DR) for the Revenue, we have heard the said appeal in ITA No. 738/SRT/2018. 5. At the outset, Learned Counsel for the assessee, Shri Suresh K. Kabra, invited our attention of the order dated 31.03.2022 passed by Division Bench of this Tribunal in ITA Nos.147 & 234/SRT/2021 for AYs.2018-19 to 2019-20 in the case of Rekha R. Shukla whereby the issue relating to late payment of PF & ESIC has been discussed and remitted the issue back to the file of the ld. CIT(A) for fresh adjudication as per the decision of SLP filed in the case of GSRTC (supra). The Learned Counsel for the assessee submitted that the present appeals are squarely covered by the aforesaid order of the Tribunal, a copy of which was also placed before the Bench. 6. The Ld. DR for the Revenue relied on the order of the Assessing Officer. 7. We see no reasons to take any other view of the matter than the view so taken by the Division Bench of this Tribunal in the case of Rekha R. Shukla (supra) vide order dated 31.03.2022. In this order, the Tribunal has inter alia observed as follows: “18. It is abundantly clear from the judgment of the Hon`ble Bombay High Court in the case of Thana Electricity Supply Ltd (Supra), that decisions of the High Court are binding on the subordinate Courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it Page | 3 737 & 738/SRT/2018/AY.2014-15 737 Shetrunjay & Radhakrishna Diamond exercises jurisdiction. Hence, decision of the Hon`ble Jurisdictional High Court of Gujarat in the case of Gujarat State Road Transport Corporation(supra), is binding on us. 19. In the case of Union of India v. Raghubir Singh (1989) 178 ITR 548 (SC), the Hon`ble Supreme Court held that the doctrine of binding precedent has merit of promoting certainty and consistency in judicial decisions. As per the doctrine of precedent, all lower Courts, Tribunals and authorities exercising judicial or quasi-judicial functions are bound by the decisions of the High Court within whose territorial jurisdiction these Courts, Tribunals & authorities functions. In the case of State of Orissa & Ors. v, M.D. Illyos, [2006] 1 SCC 275 the Hon`ble Supreme Court held that a decision is a precedent on its own facts and that for a judgment to be a precedent it must contain the three basic postulates: (i)A finding of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the individual effect of the above. In the case of CIT v. Sun Engineering Works P. Ltd. [1992] 198 ITR 297 (SC), the Hon`ble Supreme Court held that it is neither desirable nor permissible to pick out a word or a sentence from the judgment, divorced from the context of the question under consideration and treat it to be the complete "law". The judgment must be read as a whole and observations from the judgment have to be considered in the light of the questions which were before the court. 20. From the above it is vivid that we have to follow the judgment of the Hon`ble Jurisdictional High Court of Gujarat in the case of Gujarat State Road Transport Corporation(supra).The mere fact, that further appeal (SLP) has been filed, before the Hon`ble Supreme Court against the judgment of Hon`ble Gujarat High Court, in no way, means that Gujarat High Court`s decision under consideration is not operational and effective. Unless and until the decision of Gujarat High Court is reversed by Hon`ble Supreme Court, the same has to be given due effect. Thus, judicial discipline demands that order of the Hon`ble Gujarat High Court should be followed by the Surat Income Tax Appellate Tribunal. “21. We have already noted that against the order of the Hon'ble Gujarat High Court, in the case of Gujarat State Road Transport Corporation (supra), the SLP has been filed by the assessee, which has not been adjudicated yet therefore we are of the view that the issue may be remitted back to the file of the Ld. CIT(A) to decide the matter after taking into account the judgment of the Hon'ble Supreme Court as and when will be passed by the Hon'ble Supreme Court. Therefore these appeals at this stage are dismissed. However, if the Supreme Court reverses the judgment in the case of the Hon`ble Gujarat High Court in the case of CIT vs. GSRTC [Supra], it would be open for the assessees to revive these appeals by filing an application for such purpose within three months from the date of the judgment. 22. In the result, all appeals filed by the assessee, are allowed for statistical purposes.” Page | 4 737 & 738/SRT/2018/AY.2014-15 737 Shetrunjay & Radhakrishna Diamond 8. As the issue is squarely covered in favour of the assessee by the decision of the Hon'ble jurisdictional High Court of Gujarat in the case of GSRTC (supra), however, the Co-ordinate Bench has taken the constant decision to remit the issue back to the file of the ld. CIT(A) to wait till the outcome of the SLP filed before the Hon'ble Supreme Court. Therefore, this appeal at this stage is dismissed. However, if the Supreme Court reverses the judgment in the case of the Hon`ble Gujarat High Court in the case of CIT vs. GSRTC [Supra], it would be open for the assessees to revive these appeals by filing an application for such purpose within three months from the date of the judgment. 9. In the result, the appeals filed by the assessee are allowed for statistical purposes. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced in the open court on 10/05/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 10/05/2022 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat