ACIT Cir.-1, Aurangabad V. Desh Videsh Hotels Construction & Marketing P.Ltd., Aurangabad

MA 106/PUN/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6084 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 09-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO MA NO. 106/PN/09 (ARISING OUT OF ITA NO.270 TO 272/ PN/06) A.Y 2000-01 TO 2002-03 ACIT, CIRCLE -1, AURANGABAD .... APPELLANT VS. DESH VIDESH HOTELS CONSTRUCTION & MARKETING PVT. LTD. AURANGABAD . RESPONDENT APPELLANT BY : SHRI ABHAY DAMLE RESPONDENT BY : NONE ORDER PER D. KARUNAKARA RAO AM THIS IS THE MISCELLANEOUS APPLICATION BY THE REVENUE, ARISING OUT OF THE TRIBUNAL ORDER BEARING ITA NO. 270 TO 272/PN/06 FOR THE A.Y 2000-01 TO 2002-03 AND ORDER DATED 30 TH AUGUST, 2007. RELEVANT PRAYER OF THE REVENUE IS AS U NDER:- THE HONBLE ITAT, PUNE BENCH A PUNE HAS DISMISS ED THE APPEAL FILED BY THE DEPARTMENT IN THE CASE OF DESH VIDESH H OTELS CONSTRUCTIONS & MARKETING PVT. LTD., AURANGABAD FOR A.Y 2000-01, 2002- 03 VIDE ORDER BEARING NO. ITA NO. 270, 271 & 272/PN/06 DATED 30/08 /2007. THE APPEAL WAS DISMISSED RELYING ON THE DECISION OF HONBLE SUP REME COURT IN THE CASE OF VIRTUAL SOFT SYSTEMS LTD. VS. CIT (2007) 289 ITR (SC). IT IS MENTIONED IN PARA 4 OF THE ITATS DECISION AS UNDER:- WE FIND THAT THE ISSUES INVOLVED IN THESE APPEALS IS COVERED BY THE JUDGEMENT OF THE SUPREME COURT IN THE CASE OF V IRTUAL SOFT SYSTEM LTD. VS. CIT(2007) 289 ITR 83 (SC). THE COUR T HELD AS UNDER (HEADNOTES) --------------------- THE FACTS OF THE CASE IN THE PRESENT APPEAL RE IDEN TICAL AND THEREFORE WE RESPECTFULLY FOLLOW THE PRECEDENT AND UPHELD THE ORDER OF THE CIT(A). IN RESULT ALL THE THREE APPEALS FILE D BY THE DEPARTMENT ARE DISMISSED (COPY OF ORDER ENCLOSED). NOW, THE LARGER BENCH OF APEX COURT DIN THE CASE OF GOLD COIN HEALTH FOOD PVT. LTD. (2007-TIOL -18-SC-IT) HAS OVERRULED THE DECISION IN CASE OF VIRTUAL SOFT SYSTEMS AND HAS HELD THAT TH E AMENDMENT MADE BY FINANCE ACT 2002 W.E.F. 01/04/2003 EXPLANATION 4 TO SECTION 271(1)(C) OF I.T. ACT, 1961 IS WITH RETROSPECTIVE EFFECT. MA NO. 106/PN/09 ARISING OUT OF ITA NO. 270 TO 272/PN/ 06 PAGE 2 OF2 THUS, IT IS REQUESTED THAT THE DECISION GIVEN MAY B E RE-VIEWED IN VIEW OF THE ABOVE DECISION AND FRESH DECISION MAY PL EASE BE GIVEN. 2. THERE IS NONE FOR THE ASSESSEE. CONSIDERING THE NAT URE OF THE ORDER PASSED BY THE TRIBUNAL RELYING ON THE SUPREME COURT JUD GEMENT IN THE CASE OF VIRTUAL SOFT SYSTEMS LTD. THE RATIO OF WHICH IS RE-WRI TTEN BY THE SAME COURT IN THE CASE OF GOLD COIN HEALTH FOOD PVT. LTD (SUPRA) , WE FIND THE SAME CONSTITUTE A MISTAKE APPARENT FROM THE RECORD. THERE ARE A LARGE OF DECISION TO SUPPORT THE PROPOSITION THAT THE FAILURE TO FOLLOW THE APEX COURT S DECISION BOTH PROSPECTIVELY AND RETROSPECTIVELY, CONSTITUTES A MISTAKE. 3. THEREFORE, WE ARE OF THE OPINION THAT THE IMPUGNED ORDER HAS TO BE RECALLED AS REQUESTED BY THE REVENUE FOR GIVING EFFECT TO THE SUBSEQUENT ORDER OF THE JUDGEMENT OF THE SUPREME COURT. ACCORDINGLY, IT IS RECALLED AND REPOSTED. REGISTRY IS DIRECTED TO POST THE CASE IN NORMAL COURSE . 4. IN THE RESULT, THE MA OF THE REVENUE IS ALLOWED . ORDER PRONOUNCED ON 31 ST JANUARY, 2011. SD/- SD/- (I. C. SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 31 ST JANUARY, 2011 R COPY OF THE ORDER IS FORWARDED TO : 1. ACIT, CIR-1, AURANGABAD 2. ASSESSEE 3. CIT(A)-I, AURANGABAD 4. CIT, AURANGABAD 5. D.R. ITAT PUNE BENCH, PUNE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE