STAR INDIA P. LD, V. ASST CIT RG 11(1),

MA 329/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5737 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2003-2004
• Appeal Filed On: 10-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDEDR

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -KBENCH MUMBAI , . . , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND C. N. PRASAD,JUDICIAL MEMBER MA NO/329/MUM/2016 (ARISING OUT OF/ ./I.T.A./6385/MUM/2008, /ASSESSMENT YEAR: 2003-04) M/S. STAR INDIA PVT. LIMITED STAR HOUSE, OPP. DR. E. MOSES ROAD MAHALAXMI , MUMBAI-400 011. PAN:AAACN 1335 Q VS. ACIT-RANGE-11(1) MUMBAI-400 020. ( /APPELLANT) ( / RESPONDENT) / REVENUE BY: SHRI VISHWAS MUNDE-DR /ASSESSEE BY: S/SHRI PORUS KAKA AND DIVESH CHAWLA / DATE OF HEARING: 21/04/2017 / DATE OF PRONOUNCEMENT: 12/07/2017 , / PER RAJENDRA A.M. - VIDE ITS MISCELLANEOUS APPLICATION DATED 10/10/2016 , THE ASSESSEE HAS MENTIONED THAT CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF THE TRIBUNAL DA TED 20.05.2016,THAT SAME WERE TO BE RECTIFIED U/S. 254(2)OF THE ACT,THAT GROUND NO.1 RE LATED TO DEDUCTIBILITY OF LICENCE FEE,THAT THE TRIBUNAL HAD NOT FOLLOWED DECISION IN ASSESSEES OW N CASE FOR PREVIOUS ASSESSMENT YEARS (AY.S),THAT IT IGNORED THE TPOS ORDER FOR THE YEAR UNDER CONSIDERATION,THAT WHILE ADJUDICATING THE ABOVE ISSUE THE TRIBUNAL REFERRED TO ITS OWN ORDER PASSED IN THE PRECEDING AY. I.E.(2002-03)AND ACCORDINGLY RESTORED THE MATTE R TO THE FILE OF THE AO TO DECIDE IN ACCORDANCE WITH THE ORDER OF THE TPO,THAT THE FACTS FOR THE AY.2003-04 WERE DIFFERENT FROM THAT OF AY.2002-03,THAT THE TPO VIDE HIS ORDER DATE D 30/12/2005 HAD HELD THAT THE PAYMENT OF LICENCE FEE,WITH REGARD TO INTERNATIONAL TRANSAC TIONS,WAS AT ARMS LENGTH; THAT THE DEDUCTIBILITY ISSUE HAD BEEN PUT TO REST BY THE ORD ER OF THE TRIBUNAL IN THE ASSESSEE'S CASE FOR AY.2001-02,THAT THE ORDER OF THE FAA WAS CONFIRME D BY THE HON'BLE BOMBAY HIGH COURT,THAT NON CONSIDERATION OF JUDGMENT OF JURISDI CTIONAL HIGH COURT WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD. 329/M/2016(03-04) STAR INDIA PVT.LTD. 2 2. BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) REITER ATED THE SUBMISSIONS THAT ARE PART OF THE APPLICATION FILED BY THE ASSESSEE.HE FURTHER STATED THAT IN THE MATTER OF STAR INDIA PRIVATE LIMITED AY 2001-02 ,THE BOMBAY HIGH COURT (ITA/1119 OF 2009) HAD DELIBERATED UPON THE ISSUE AND HAD DECIDED THE SAME IN FAVOUR OF THE ASS ESSEE ,THAT NON-CONSIDERATION OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT CONSTITUT ED A MISTAKE APPARENT FROM THE RECORD. HE REFERRED TO THE JUDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD.(305 ITR 227). THE DEPARTMENTAL REPRES ENTATIVE (DR) STATED THAT THERE WAS NO MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL, THA T THE ASSESSEE WANTED A REVIEW OF THE ORDER AND THAT SAME WAS NOT PERMISSIBLE U/S. 254 OF THE A CT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT IDENTICAL ISSUE HAD TRAVELLED UPTO HONBLE BOMBAY H IGH COURT AND THAT SAME WAS DECIDED IN FAVOUR OF THE ASSESSEE,THAT WHILE DECIDING THE APP EAL THE JUDGMENT OF THE HONBLE COURT WAS NOT TAKEN INTO CONSIDERATION.NON-CONSIDERATION OF J UDGMENT OF THE HONBLE BOMBAY HIGH COURT IS A MISTAKE APPARENT FROM RECORD.THEREFORE,T HE ORDER OF THE TRIBUNAL DATED 20.05. 2016 HAS TO BE RECTIFIED.ACCORDINGLY,WE DIRECT THE REGISTRY TO RE-FIX THE MATTER BEFORE REGULAR BENCH TO REHEAR THE CASE AFRESH. AS A RESULT, APPEAL FI LED BY THE ASSESSEE IS PARTLY ALLOWED ! '#$% &'() . ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY, 2017. 12 , 2017 SD/- S D/- ( . . / C.N.PRASAD ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 12.07.2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 329/M/2016(03-04) STAR INDIA PVT.LTD. 3 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.