ACIT -TU, V. LUPIN LTD,

MA 135/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3846 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2001-2002
• Appeal Filed On: 25-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C DONALY
• Keywords: Retrospective amendment
• Section: 115JB

Judgement Text

1 MA NO. 135/MUM/2010 M/S LUPIN LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI R S PADVEKAR, JM & B RAMAKOTAIAH, AM MA NO. 135/MUM/2010 ARISING OUT OF ITA NO. 8627 &9180/MUM/2004 (ASST YEAR 2001-02 ) THE ASST COMMR OF INCOME TAX LTU, CENTRE-1 MUMBAI 5 VS M/S LUPIN LTD 159 CST ROAD, KALINA SANTACRUZ(E) MUMBAI 98 (APPLICANT) (RESPONDENT) PAN AAACL 1069K ASSESSEE BY: MS VASANTI PATEL REVENUE BY: SHRI R C DONALY O R D E R PER R S PADVEKAR: THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S 254(2) OF THE ACT CONTENDING THAT THE AMENDMENT MADE TO SECTION 1 15JB BY THE FINANCE ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 1.4.2001 W AS NOT CONSIDERED BY THE BENCH WHILE DECIDING THE APPEAL OF THE ASSESSEE. 2 WE HAVE HEARD THE PARTIES. THE REVENUE AS WELL AS THE ASSESSEE HAD CHALLENGED THE IMPUGNED ORDER OF THE LD CIT(A) BY F ILING APPEALS BEING ITA NOS.8627/MUM/2004 AND 9180/MUM/2004 AND THE SAME WE RE DISPOSED OFF BY COMMON ORDER DATED 15.4.2009. 2 MA NO. 135/MUM/2010 M/S LUPIN LTD 3 ON PERUSAL OF THE REVENUES APPEAL, IT IS SEEN TH AT THE REVENUE HAS MERELY MENTIONED THAT THE TRIBUNAL HAD NOT CONSIDER ED THE AMENDMENT MADE TO SECTION 115JB BY TAKING A GROUND. IN OUR O PINION, AT THE FIRST INSTANT, POWERS OF THE TRIBUNAL U/S 254(2) ARE WELL DEFINED IN RESPECT OF ITS LIMIT TO RECTIFY THE ORDERS. THE GROUND TAKEN BY TH E REVENUE SUGGESTS THAT BY THIS APPLICATION, REVENUE IS TRYING TO SEEK REVIEW OF THE ORDER OF THE TRIBUNAL. 3.1 IN THE CASE OF CIT VS EARNEST EXPORTS LTD (323 ITR 577) (BOM), THEIR LORDSHIPS HAVE MADE OBSERVATIONS IN RESPECT OF THE LIMITATION ON THE POWERS OF THE TRIBUNAL U/S 254(2) WHICH ARE AS UNDER: THE POWER UNDER SECTION 254(2) IS CONFINED TO RECT IFICATION OF A MISTAKE APPARENT ON RECORD. THE TRIBUNAL MUST CONFINE ITSEL F WITHIN THOSE PARAMETERS. SECTION 254(2) IS NOT A CARTE BLANCHE F OR THE TRIBUNAL TO CHANGE ITS OWN REVIEW BY SUBSTITUTING A VIEW WHICH IT BELIEVES SHOULD HAVE BEEN TAKEN IN THE FIRST INSTANCE. SECTION 254( 2) IS NOT A MANDATE TO UNSETTLE DECISIONS TAKEN AFTER DUE REFLECTION. THE PROVISION EMPOWERS THE TRIBUNAL TO CORRECT MISTAKES, ERRORS AND OMISSI ONS APPARENT ON THE FACE. THE SECTION IS NOT AN AVENUE TO REVIEW A PROC EEDING BY RECOURSE TO A DISINGENUOUS ARGUMENT NOR DOES IT CONTEMPLATE A F RESH LOOK AT A DECISION RECORDED ON THE MERITS, HOWEVER APPEALING AN ALTERNATIVE VIEW MAY SEEM. UNLESS A SENSE OF RESTRAINT IS OBSERVED, JUDICIAL DISCIPLINE WOULD BE THE CASUALTY. THAT IS NOT WHAT PARLIAMENT ENVISAGED. 3.2 IN THIS CASE, THE ORDER WAS PASSED BY THE TRIBU NAL ON 15.4.2009 AND ON THE DATE OF PASSING THE SAID ORDER, ADMITTEDLY, THERE WAS NO AMENDMENT TO SECTION 115JB. THE LAW IN EXISTENCE ON THE DATE OF PASSING OF THE ORDER ONLY HAS TO BE CONSIDERED. THOUGH, THE BILL WAS IN TRODUCED IN THE PARLIAMENT; BUT UNLESS THE SAID BILL IS PASSED BY B OTH THE HOUSES AND PRESIDENT GIVES HIS ASSENT TO THE BILL; TILL THAT T IME THE BILL IS NEVER CHANGED IN TO A STATUTE OR ACT. 3 MA NO. 135/MUM/2010 M/S LUPIN LTD 4 IN THE CASE OF ACIT VS M/S GTL LTD IN MA NO.746/ MUM/2009 VIDE ORDER DATED 10.3.2010 ON IDENTICAL ISSUES, THE COOR DINATE BENCH HAS HELD AS UNDER: HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDERE D THEIR RIVAL CONTENTION, WE FIND THAT THE TRIBUNALS ORDER IS DA TED 17 TH MARCH, 2009 WHEREAS THE RETROSPECTIVE AMENDMENT OF THE ACT HAS RECEIVED THE ASSENT OF THE PRESIDENT OF INDIA ON 19.8.209 I.E. A FTER THE ORDER OF THE TRIBUNAL WAS PASSED. SIMILAR WERE THE ACTS OF THE C ASE BEFORE THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SUDHIR S M EHTA (CITED SUPRA), WHEREIN THE TRIBUNALS ORDER WAS DATED 26.6.96 WHER EAS THE LAW WAS AMENDED RETROSPECTIVELY W.E.F 1.4.1989 AND THIS AME NDMENT WAS ASSENTED TO BY THE PRESIDENT OF INDIA ON SEPTEMBER 28, 1996 I.E. AFTER THE ORDER OF THE TRIBUNAL WAS PASSED. AFTER TAKING THESE FACTS INTO CONSIDERATION THE HONBLE BOMBAY HIGH COURT HELD TH AT THE PROCEEDINGS GOT CONCLUDED BEFORE THE TRIBUNAL UNDER THE THEN EX ISTING LAW AND, THEREFORE, THERE WAS NO MISTAKE APPARENT FROM RECOR D IN THE ORDER OF THE TRIBUNAL DATED 26.2.1996. AS THIS IS A DECISION OF THE JURISDICTIONAL HIGH COURT THIS TRIBUNAL IS BOUND BY THE SAME. OTHERWISE ALSO THE DECISION OF THE KARNATAKA HIGH COURT IN THE CASE OF M SRINIV ASALU VS UOI (CITED SUPRA), RELIED UP BY THE LD DR IS DISTINGUISHABLE O N FACE AS SUBMITTED BY THE LD COUNSEL FOR THE ASSESSEE. IN VIEW OF THE SAME, WE AGREE WITH THE ASSESSEE THAT THERE S NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. IN VIEW OF THE SAME, REVENUES MIS CELLANEOUS APPLICATION IS ACCORDINGLY DISMISSED. 4.1 IN THE SAID CASE, THE TRIBUNAL PLACED RELIANCE ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SUD HIR S MEHTA (265 ITR 548). 5 IN THE PRESENT CASE ALSO, WHEN THE ORDER WAS PASS ED BY THE TRIBUNAL, AT THAT TIME THERE WAS NO AMENDMENT TO SEC. 115JA. IN OUR OPINION, THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL . WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE; ACC ORDINGLY, THE SAME IS REJECTED. 4 MA NO. 135/MUM/2010 M/S LUPIN LTD 7 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 30 TH , DAY OF JULY 2010. SD/- SD/- ( B RAMAKOTAIAH ) ACCOUNTANT MEMBER (R S PADVEKAR ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH JULY 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI