M/s ICICI Bank Limited, Lucknow V. Dy. Commissioner of Income Tax (TDS), Lucknow

MA 17/LKW/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1867 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO. 17 /LKW/1 3 ( ARISING OUT OF I.T.A. NO. 657 /LKW/ 2011 ) ASSESSMENT YEARS: 2007 - 08 M/S ICICI BANK LIMITED, BRANCH GOMTI NAGAR, 3/64, VIVEK KHAND, LUCKNOW. PAN:AAACI1195H VS. DY.C.I.T. (TDS), LUCKNOW. (APPLICANT) (RESPONDENT) ORDER PER SUNIL KUMAR Y ADAV, J.M,: TH IS MISC. APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 28/05/2013 IN I.T.A. NO.657/LKW/2011 WITH THE SUBMISSION THAT THE TRIBUNAL HAS ADJUDICATED THE ISSUE OF NON DEDUCTION OF TDS WHILE MAKING PAYMENT OF INTEREST TO INDIAN INSTITUTE OF MANAGEMENT, LUCKNOW WITHOU T CONSIDERING THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JAGARAN PRAKASHAN LTD. VS. DCIT 21 TAXMAN.COM 489 AND THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. VS COMMISSIONER OF INCOME - TAX [2007 ] 293 ITR 226 (SC) AND DISMISSED THE APPEAL OF THE ASSESSEE WHEREAS THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS TAKEN A CONTRARY VIEW APPELLANT BY SHRI ROHIT BHALLA, F.C.A. RESPONDENT BY SHRI P. K. DEY, D.R. DATE OF HEARING 07/03/2014 DATE OF PRONOUNCEMENT 11/04/2014 2 ON THE SAME ISSUE IN THE LIGHT OF THE AFORESAID JUDGMENT. THEREFORE, TWO CONTRARY VIEWS ARE TAKEN BY DIFFERENT BENCHES OF T HE TRIBUNAL AND THE LATER VIEW OF THE TRIBUNAL IN ITS APPEAL NO.668 OF 2001 DATED 06/06/2013 WAS THE CORRECT VIEW AS IT WAS TAKEN FOLLOWING THE AFORESAID JUDGMENT OF HON'BLE APEX COURT AND HON'BLE JURISDICTIONAL HIGH COURT. AS SUCH, THE ERROR HAS CREPT IN THE IMPUGNED ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO FILED A COPY OF THE ORDER OF THE TRIBUNAL IN I.T.A. NO.668/LKW/2011 DATED 06/06/2013 IN WHICH CONTRARY VIEW WAS TAKEN. 2. LEARNED D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE CONSCIOUS DECISION IS TAKEN BY THE TRIBUNAL, THEREFORE, THERE IS NO ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL. 3. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM PERUSAL OF MISC. APPLICA TION VIS - - VIS THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS EXAMINED THE ISSUE OF NON DEDUCTION OF TDS ON PAYMENT OF INTEREST TO INDIAN INSTITUTE OF MANAGEMENT, LUCKNOW WITHOUT CONSIDERING THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF HINDU STAN COCA COLA BEVERAGE P. LTD. VS COMMISSIONER OF INCOME - TAX (SUPRA) AND THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF JAGARAN PRAKASHAN LTD. VS. DCIT WHEREAS BOTH THESE JUDGMENTS WERE PROPERLY CONSIDERED IN THE SUBSEQUENT ORDER OF THE TRIBUNAL DATED 06/06/2013. HAVING CAREFULLY EXAMINED BOTH THE ORDERS OF THE TRIBUNAL, WE FIND THAT CORRECT VIEW WAS TAKEN IN THE SUBSEQUENT ORDER OF THE TRIBUNAL IN THE LIGHT OF THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE APEX COURT. TH EREFORE, WE FIND THAT THE IMPUGNED APPEAL I.E. 657/LKW/2011 WAS ADJUDICATED WITHOUT CONSIDERING THE JUDGMENT OF HON'BLE APEX COURT AND HON'BLE JURISDICTIONAL HIGH COURT. IT IS SETTLED POSITION OF LAW THAT NON CONSIDERATION OF JUDGMENT OF HON'BLE APEX COU RT AND HON'BLE JURISDICTIONAL 3 HIGH COURT ON A PARTICULAR ISSUE, IS AN ERROR APPARENT FROM THE RECORD FOR WHICH RECTIFICATION IS PERMISSIBLE. WE, THEREFORE, RECALL OUR ORDER DATED 28/05/2013 AND DIRECT THE REGISTRY TO REFIX THE APPEAL FOR FRESH HEARING IN DUE COURSE . ACCORDINGLY, THE MISC. APPLICATION IS ALLOWED. 4. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11/04/2014 ) SD/. SD/. ( A. K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11/04/2014 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR