M/s. Goa Glass Fibre Ltd., Kolkata V. DCIT, C.C. - XXVIII, Kolkata, Kolkata

MA 15/KOL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7248 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 10-03-2011
• Court: TRIBUNAL
• Department Lawyers: KUNAL BISWAL
• Assessee Lawyers: A K PRAMANIK
• Keywords: Retrospective amendment
• Section: 234B; 115JB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , ,, , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $$ '% $$ '% $$ '% $$ '% MA NO . 15/KOL/2011 A/O & & & & / ITA.NO.1181/KOL/2010 %' ()/ ASSESSMENT YEAR : 2007-08 (+, / APPELLANT ) D.C.I.T CENTRAL CIRCLE-XXVIII, KOLKATA - % - - VERSUS - . (./+,/ RESPONDENT ) GOA GLASS FIBRE LTD., KOLKATA (PAN: AABCG 5767 A) +, 0 1 '/ FOR THE APPELLANT: SHRI A.K.PRAMANIK ./+, 0 1 '/ FOR THE RESPONDENT: SHRI KUNAL BISWAL 2%3 0 !# /DATE OF HEARING : 21.10.2011. 4( 0 !# /DATE OF PRONOUNCEMENT : 21.10.2011 '5 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THE ABOVE MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL VIDE ITA NO.1181/KOL/2010 DATED 16 .12.2010 FOR ASSESSMENT YEAR 2007-08 FOR RECALLING ORDER OF THE TRIBUNAL.. 2. AT THE TIME OF HEARING THE LD. DR APPEARING ON BEHALF OF THE REVENUE IN THIS MISCELLANEOUS APPLICATION WANTS TO RECALL THE ORDER OF THIS TRIBUNAL AND CONTENDED THAT 2 RECENTLY HONBLE SUPREME COURT HAD GIVEN DECISION IN THE CASE OF JCIT MUMBAI VS M/S. ROLTA INDIA LTD. IN CIVIL APPEAL NO.135 OF 201 1 DTD. 07.01.2011, A GIST OF WHICH IS GIVEN BELOW : SECTION 115JB IS A SELF CONTAINED CODE PERTAINING TO MAT, WHICH IMPOSED LIABILITY FOR PAYMENT OF ADVANCE TAX ON MAT AND THE REFORE, WHERE SUCH COMPANIES DEFAULTED IN PAYMENT OF ADVANCE TAX IN RESPECT OF T AX PAYABLE UNDER SECTION 115JB, IT WAS LIABLE TO PAY INTEREST UNDER SECTION 234B AND 2 34C OF THE ACT. THUS, IT CAN BE CONCLUDED THAT INTEREST UNDER SECTION 234B AND 234C SHALL BE PAYABLE ON FAILURE TO PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SEC TION 115JA/115JB. IN VIEW OF THE ABOVE JUDGEMENT OF HONBLE SUPREME C OURT, THERE APPEARS TO BE A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE HO NBLE ITAY A BENCH REFERRED TO AS ABOVE. THUS A MISC. PETITION UNDER SECTION 254(2) OF THE I .T.ACT IS BEING FILED AGAINST LD.ITATS ABOVE QUOTED ORDER. 3. ON THE OTHER HAND THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE RELIED ON THE ORDERS OF THE TRIBUNAL. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD KEEPING IN VIEW OF THE FACT THA T WHEN ONCE THE HONBLE APEX COURT DECIDES THE ISSUE WHICH IS CONTRARY TO THE DE CISION OF THE TRIBUNAL THIS WILL TANTAMOUNT TO A MISTAKE APPARENT FROM RECORD, IN VI EW OF THE HONBLE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. AS REPORTED IN 305 ITR 227 WHEREIN IT WAS HELD THAT A JUDICIAL DECISION ACTS RETROSPECTIVELY. ACCORDI NG TO BLACKSTONIAN THEORY, IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A NE W RULE BUT TO MAINTAIN AND EXPOUND THE OLD ONE. IN OTHER WORDS, JUDGES DO NO T MAKE LAW, THEY ONLY DISCOVER OR FIND THE CORRECT LAW. THE LAW HAS ALWAY S BEEN THE SAME. IF A SUBSEQUENT DECISION ALTERS THE EARLIER ONE, IT (THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RETROSPECTIVELY. TO PUT IT DIFFERENTLY, EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOME TIME, THE DECISION RE NDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. 4.1. RESPECTFULLY FOLLOWING THE ABOVE RATIO WE RECA LL OUR ORDER OF THE TRIBUNAL DATED 16 TH DECEMBER, 2010 FOR FRESH ADJUDICATION. ACCORDINGLY WE DIRECT THE REGISTRY TO FIX THE CASE FOR HEARING IN DUE COURSE. 3 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 21.10.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 21.10.2011. '5 0 .$ 6'$(7- COPY OF THE ORDER FORWARDED TO: 1. GOA GLASS FIBRE LTD., 32, CHOWRINGHEE ROAD, KOLKATA -700071. 2 D.C.I.T.,CENTRAL CIRCLE-XXVIII, KOLKATA. 3. THE CIT, 4. THE CIT(A)-CENTRAL-I, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /$ ./ TRUE COPY, '5%2/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)