CIT-4, V. MANOJ M SHAH,

MA 148/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4958 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 04-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Retrospective amendment
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER M.A. NO. 148/MUM/2010 ARISING OUT OF ITA. NO. 6838/MUM/2006 - ASSESSMENT YEAR 2002-2003 THE COMMISSIONER OF INCOME TAX-4, MUMBAI 400 020 VS. MANOJ M. SHAH MUMBAI 400 020 PAN AAFPS-9212-F (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI SHRAVAN KUMAR (DR) FOR RESPONDENT : -NONE- ORDER PER D. MANMOHAN, V.P. 1. THIS APPLICATION IS FILED AGAINST THE ORDER DAT ED 4 TH NOVEMBER, 2008, PASSED BY THE ITAT, B BENCH, MUMB AI, WHEREIN THE ISSUE CONCERNING ALLOWABILITY OF DEPRECIATION TO TH E ASSESSEE IN RESPECT OF BOMBAY STOCK EXCHANGE MEMBERSHIP CARD WAS DECIDED I N FAVOUR OF THE ASSESSEE FOR STATISTICAL PURPOSES IN THE LIGHT OF D ECISION OF THE ITAT, MUMBAI BENCHES IN THE CASE OF TECHNO SHARES & STOCK S LIMITED (ORDER DATED 4-1-2006). 2. AGGRIEVED, REVENUE PREFERRED A MISCELLANEOUS AP PLICATION ON 7/5/2009 WHEREIN IT WAS CONTENDED THAT PROVISIONS O F SECTION 32 WERE AMENDED WITH RETROSPECTIVE EFFECT AND HENCE DECISIO N OF THE TRIBUNAL IS CONTRARY TO LAW. THIS APPLICATION WAS NUMBERED AS M .A. 319/2009. THOUGH NO ONE APPEARED ON BEHALF OF THE ASSESSEE, T HE BENCH DISPOSED OF THE M.A. BY HOLDING THAT THERE IS NO MISTAKE IN THE ORDER OF THE 2 TRIBUNAL SINCE EARLIER DECISION OF THE ITAT WAS FOL LOWED WHICH STILL HOLDS THE FIELD. SUBSEQUENT THERETO, THE REVENUE FILED AN OTHER M.A. ON 2/12/2009 WHICH WAS NUMBERED AS M.A. 812/MUM/2009. IN THIS APPLICATION THE REVENUE CHALLENGED THE ORDER PASSED IN M.A.319/MUM/2009. BEARING IN MIND THE FACT THAT SEC TION 254 (2) OF THE ACT CAN BE INVOKED ONLY IN RESPECT OF AN ORDER PASS ED UNDER SECTION 254 (1) OF THE ACT (IN OTHER WORDS M.A. CANNOT BE FILED AGAINST AN ORDER PASSED IN ANOTHER M.A.), THE M.A. WAS DISMISSED BY THE ITAT, B BENCH, MUMBAI VIDE ITS ORDER DATED 9 TH FEBRUARY, 2010. UNDER THESE CIRCUMSTANCES REVENUE FILED A FRESH M.A., WITHIN TH E TIME PERMISSIBLE UNDER SECTION 254 (2) OF THE ACT, AGAINST THE ORIGI NAL ORDER OF THE ITAT (ITA. NO. 6838/MUM/2006) WHEREIN IT WAS CONTENDED T HAT IN THE LIGHT OF LATEST DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. TECHNO SHARES & STOCK LIMITED EARLIER ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD. LEARNED DR RELIED UPO N THE ORDER OF THE HONBLE BOMBAY HIGH COURT AND ALSO THE FULL BENCH D ECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE FOLLOWING CASES TO SUBMIT THAT AN ORDER PASSED BY THE TRIBUNAL WHICH IS IN CONFLICT W ITH THE LATER DECISION OF THE JURISDICTIONAL HIGH COURT SHOULD BE CONSIDER ED AS ERRONEOUS ORDER WHICH DESERVES TO BE RECTIFIED UNDER SECTION 254 (2 ) OF THE ACT. (I) CIT VS. TECHNO SHARES & STOCKS LIMITED (2010) 323 I TR 69 (BOM.) (II) CIT VS. SMT. ARUN LUTHRA (2001) 252 ITR 76 (P&H) 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAV E HEARD THE LEARNED DR AND CAREFULLY PERUSED THE RECORD. THE IT AT, MUMBAI BENCHES HAVING BEEN CONSISTENTLY TAKING THE VIEW, IN THE LI GHT OF THE AFOREMENTIONED DECISIONS, THAT LATER DECISION OF TH E JURISDICTIONAL HIGH COURT WOULD GIVE RAISE TO A MISTAKE APPARENT FROM R ECORD. CONSISTENT 3 WITH THE VIEW TAKEN BY HONBLE BOMBAY HIGH COURT CI TED (SUPRA) WE HEREBY RECTIFY THE ORDER DATED 4 TH NOVEMBER, 2008 AND HOLD THAT ASSESSEE IS NOT ENTITLED TO DEPRECIATION ON THE STO CK EXCHANGE MEMBERSHIP CARD. 4. IN THE RESULT, M.A IS ALLOWED. ORDER PRONOUNCED ACCORDINGLY IN THE OPEN COU RT ON 03-9-2010 SD/- SD/- (P.M. JAGTAP) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 07 TH SEPTEMBER, 2010 VBP/- COPY TO 1. THE COMMISSIONER OF INCOME TAX-4, AAYAKAR BHAVAN , M.K. ROAD, MUMBAI 400 020 2. MANOJ M. SHAH, CRESCENT CHAMBERS, GROUND FLOOR, HOMI MODI STREET NO.2, FORT, MUMBAI 400 020 PAN AAFPS-9212-F 3. CIT(A)-XIV, MUMBAI. 4. CIT, CITY-4, MUMBAI 5. DR B BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI.