DCIT, CHENNAI V. Polaris Financial Technology Ltd., CHENNAI

MA 184/CHNY/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1344 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: DR ANITA SUMANTH
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER M.P. NOS. 184 & 185/MDS/2013 ( IN ITA NOS.12 & 13/MDS/2013) (ASSESSMENT YEARS: 2007-08 & 2008-09) DEPUTY COMMISSIONER OF INCOME TAX COMPANY CIRCLE V(2), AAYAKAR BHAVAN, CHENNAI-34. (APPLICANT) VS. M/S. POLARIS FINANCIAL TECHNOLOGY LIMITED (FORMERLY KNOWN AS POLARIS SOFTWARE LAB LTD.) 244, CAREX CENTER, POLARIS HOUSE, ANNA SALAI, CHENNAI-600 006. PAN:AAACP4341E (RESPONDENT) APPLICANT BY : MR. S. DAS GUPTA, JCIT RESPONDENT BY : DR. ANITA SUMANTH, ADVOCATE DATE OF HEARING : 10 TH JANUARY, 2014 DATE OF PRONOUNCEMENT : 2 8 TH JANUARY, 2014 O R D E R PER CHALLA NAGENDRA PRASAD, JM: THE REVENUE HAS FILED BOTH THESE MISCELLANEOUS PETITIONS SEEKING THIS TRIBUNAL TO REVERSE ITS ORDE R ON GROUND NO.3 RAISED BY THE ASSESSEE WHICH WAS DISPOSED OFF BY THIS TRIBUNAL IN ITA NOS. 12 & 13/MDS/2013 FOR THE ASSES SMENT YEARS 2007-08 & 2008-09 ON THE GROUND THAT THE TRIB UNAL OVER-LOOKED THE DECISION OF THE JURISDICTIONAL HIGH COURT IN M.P. NOS.184 & 185/MDS/2013 2 DECIDING THE GROUND IN FAVOUR OF THE ASSESSEE WHICH CONSTITUTES A MISTAKE APPARENT FROM RECORD. 2. THE DEPARTMENTAL REPRESENTATIVE IN SUPPORT OF HI S CONTENTION THAT OVERLOOKING A DECISION OF THE JURIS DICTIONAL HIGH COURT IS A MISTAKE APPARENT FROM RECORD PLACE S RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. ( 3 05 ITR 227). THE DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THIS TRIBUNAL WHILE DISPOSING OFF THE APPEAL DID NOT CON SIDER THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF GALAXY GRANITES (P) LTD. VS. CIT (80 DTR 219) AND DECIDED THAT UNREALIZED EXPORT PROCEEDS IN FOREIGN CURRENCY HAS TO BE EXCLUDED FROM TOTAL TURNOVER FOR THE PURPOSE OF COM PUTING DEDUCTION UNDER SECTION 10B OF THE ACT, WHICH GOES CONTRARY TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GALAXY GRANITES P.LTD (SUPRA). THEREFORE, H E PLEADS THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED FOR THE LIMITED PURPOSE OF DECIDING THE ISSUE IN GROUND NO.3. M.P. NOS.184 & 185/MDS/2013 3 3. COUNSEL FOR THE ASSESSEE HAS NO SERIOUS OBJECTIO N FOR RECALLING THE ORDER OF THE TRIBUNAL AND DECIDING TH E ISSUE RAISED IN GROUND NO.3 OF THE GROUNDS OF APPEAL. 4. HEARD BOTH SIDES. PERUSED THE PETITION FILED BY THE REVENUE, THE ORDER OF THIS TRIBUNAL IN ITA NOS.12 & 13/MDS/2013 DATED 30.08.2013 AND THE DECISION OF T HE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURA SHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA). THE REVENUE IN ITS MISCELLANEOUS PETITIONS FILED FOR BOTH THE ASSESSME NT YEARS 2007-08 AND 2008-09 AGAINST THE APPEALS DISPOSED OF F BY THIS TRIBUNAL IN ITA NOS.12 & 13 /MDS/2013 SUBMITTED AS UNDER:- THE ABOVE APPEA L F IL ED BY ASSESSEE WAS DISPOSED OFF BY ITAT VIDE ORDER DATED 30-08-2013 . GR.3 RAISED BY ASSESSEE IS REGARDING EXCLUSION OF EXPORTS PROCEEDS NOT REALIZED WITHIN THE STIPULATED PERIOD FROM THE TOTAL TURNOVE R WHILE COMP U TING THE DEDUCTION U/S 10B. WHILE 10B(3) PRESCRIBES EXCLUSION OF SUCH AMOUNT FROM EXPORT TURNOVER, THERE IS NO PROVISION TO REDUCE THE SAME FROM THE TOTAL TURNOVER . THIS LEGAL ISSUE RAISED BY THE ASSESSEE WAS ALLOWED BY TRIBUNAL (PARA . 8 TO 12 OF ITAT ORDER) OVERLOOKING THE DECISION OF THE VERY SAME BENCH EARLIER IN THE CASE OF VISTEON M.P. NOS.184 & 185/MDS/2013 4 TECHNICAL AND SERVICES CENTRE PVT LTD ( ITA NO . 1870/MDS/2011 - ORDER DATED 15-06-2012) AND DECISION MADRAS HIGH COURT IN GALA X Y GRANITES (P) LTD VS CIT REPORTED IN 80 DTR 219. SINCE OVERLOOKING DECISION OF COORDINATE BENCH AS WELL AS JURISDICTIONAL HIGH COURT IS MI S TAKE APPARENT FROM RECORD, IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL ON GR 3 RAISED BY ASSE S SEE IN THE ABOVE APPEAL MAY BE REVERSED. 5. ON GOING THROUGH THE IMPUGNED ORDER OF THE TRIB UNAL , WE FIND THAT THE APPEAL FILED BY THE ASSESSEE IN IT A NO.12/MDS/2013 FOR THE ASSESSMENT YEAR 2007-08 HAS BEEN DISMISSED AS INFRUCTUOUS WITHOUT GOING INTO THE MER ITS OF THE GROUNDS RAISED. IN SUCH CIRCUMSTANCES, THE MISCELLA NEOUS PETITION NO.184/MDS/2013 FILED BY THE REVENUE IS NO T MAINTAINABLE AND THEREFORE DISMISSED. 6. AS FAR AS THE APPEAL FOR THE ASSESSMENT YEAR 200 8-09 IN ITA NO.13/MDS/2013 IS CONCERNED, THIS TRIBUNAL DECI DED GROUND NO.3 RAISED BY THE ASSESSEE IN PARAS 8 TO 12 OF THE ORDER. WHILE DISPOSING OF THE APPEAL, THE TRIBUNAL DID NOT CONSIDER THE DECISION OF THE JURISDICTIONAL HIGH CO URT IN THE M.P. NOS.184 & 185/MDS/2013 5 CASE OF GALAXY GRANITES (P) LTD. VS. CIT (SUPRA) AS SUBMITTED BY THE DEPARTMENTAL REPRESENTATIVE. THE HONBLE SU PREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOC K EXCHANGE LTD. (SUPRA) HAS HELD THAT FAILURE TO APPL Y JUDGEMENT OF JURISDICTIONAL HIGH COURT IS A MISTAKE APPARENT ON RECORD AND THE TRIBUNAL HAS JURISDICTION TO RECT IFY UNDER SECTION 254(2) OF THE ACT. KEEPING IN VIEW THE DEC ISION OF THE HONBLE APEX COURT, WE RECALL OUR ORDER PASSED IN I TA NO.13/MDS/2013 FOR THE ASSESSMENT YEAR 2008-09 IN RESPECT OF GROUND NO.3 TO DECIDE IT AFRESH AFTER HEARING BO TH THE PARTIES. THEREFORE, THE IMPUGNED ORDER IS RECALLED AND THE APPEAL IS RESTORED FOR THE LIMITED PURPOSE OF DISPO SING OF GROUND NO.3. 7. THE REGISTRY IS DIRECTED TO FIX ITA NO.13/MDS/20 13 IN DUE COURSE FOR HEARING AND INFORM THE PARTIES ACCOR DINGLY. 8. IN THE RESULT, MISCELLANEOUS PETITION FILED BY T HE REVENUE FOR THE ASSESSMENT YEAR 2007-08 IN M.P. NOS.184 & 185/MDS/2013 6 M.P.NO.184/MDS/2013 IS DISMISSED AND FOR THE ASSES SMENT YEAR 2008-09 IN M.P.NO.185/MDS/2013 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY , THE 28 TH DAY OF JANUARY, 2014 AT CHENNAI. SD/- SD/- (A.MOHAN ALANKAMONY) (CHALLA NAGEN DRA PRASAD) ACCOUNTANT MEMBER JUDI CIAL MEMBER CHENNAI, DATED THE 28 TH JANUARY, 2014. SOMU COPY TO: (1) APPLICANT (4) CIT (A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.