VIRAJ IMPROEXPO LTD, V. DCIT CEN CIR 18 & 19,

MA 343/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2618 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 15-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M A YS; ASGHAR ZAIN MA NOS
• Assessee Lawyers: BHUMIKA VORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI , , BEFORE SHRI JOGINDER SINGH, JM AND SHRI SANJAY AROR A, AM ! ./MA NO. 342/MUM/2014 (ARISING OUT OF ITA NO. 457/MUM/2008) ( / ASSESSMENT YEAR: 2004-05) VIRAJ IMPO EXPO LTD. 10, IMPERIAL CHAMBERS, WILSON ROAD, BALLARD ESTATE, MUMBAI-400 038 / VS. DY. CIT, CENTRAL CIRCLE-18 & 19, MUMBAI # ./ % ./PAN/GIR NO. AAACV 1939 L ( APP LICANT ) : ( RESPONDENT ) ! ./MA NO. 343/MUM/2014 (ARISING OUT OF ITA NO. 458/MUM/2008) ( / ASSESSMENT YEAR: 2003-04) VIRAJ FORGINGS LTD. MUMBAI-400 038 / VS. DY. CIT, CENTRAL CIRCLE-18 & 19, MUMBAI # ./ % ./PAN/GIR NO. AAACV 1901 E ( APP LICANT ) : ( RESPONDENT ) & ! ./MA NO. 345/MUM/2014 (ARISING OUT OF ITA NO. 496/MUM/2008) ( / ASSESSMENT YEARS: 2003-04) VIRAJ PROFILES LTD. MUMBAI-400 038 / VS. DY. CIT, CENTRAL CIRCLE-18 & 19, MUMBAI # ./ % ./PAN/GIR NO. AAACV 1940 N ( APP LICANT ) : ( RESPONDENT ) APPLICANTS BY : MS. BHUMIKA VORA RESPONDENT BY : SHRI ASGHAR ZAIN 2 MA NOS. 342, 343 & 345/M/2014 (A.YS.2003-04 & 2004-05) ' !( ) *+ / DATE OF HEARING : 12.12.2014 ,-. ) *+ / DATE OF PRONOUNCEMENT : 12.12.2014 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF THREE MISCELLANEOUS APPLICATIONS B Y THREE ASSESSEE-APPELLANTS, ARISING OUT OF THE COMMON ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 12.01.2011 IN TH E CAPTIONED APPEALS FOR ASSESSMENT YEARS (A.YS.) 2003-04 & 2004-05. 2. THE ASSESSEE/S HAS NOW MOVED AN APPLICATION STAT ING THAT ITS CLAIM FOR DEDUCTION U/S.80-HHC WAS NOT ACCEPTED BY THE TRIBUNAL PER THE IMPUGNED ORDER FOLLOWING THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. KALPATARU COLOURS & CHEMICALS [2010] 328 ITR 451 (BOM) [192 TAXMAN 435]. THE SAID DECISION HAS SINCE BEEN REVERSED BY THE APEX COURT VIDE ITS JUDGMENT I N THE CASE OF TOPMAN EXPORTS VS. CIT [2012] 342 ITR 49 (SC) [67 DTR 185]. IN VIEW OF THE SAME, THE TRIBUNALS ORDER BEARS A MISTAKE APPARENT FROM THE RECORD, WHICH IS THEREFOR E PRAYED FOR BEING RECTIFIED U/S.254(2) OF THE ACT. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. EVEN AS HELD BY THE APEX COURT IN THE CASE OF ASST. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC), AS WELL AS BY THE HIGHER COURTS, AS IN THE CASE OF CIT VS. SMT. ARUNA LUTHRA [2001] 252 ITR 76 (P & H)(FB) AND B.V.K. SHESHAVATARAM V. CIT [1994] 210 ITR 633 (AP), EVEN A SUBSEQUENT DECISIO N BY THE APEX COURT OR THE JURISDICTIONAL HIGH COURT WOULD RENDER THE DECISION OF THE SUBORDINATE AUTHORITY AS MISTAKEN, WHICH COULD THUS BE RECTIFIED IN LAW. T HE PREMISE OF THE SAID DECISIONS IS THAT A MISTAKE CAN BE SAID TO HAVE OCCURRED WHERE THE DECISION BEING FOLLOWED OR OTHERWISE ADOPTED BY THE IMPUGNED ORDER IS SUBSEQUENTLY REVER SED OR HELD AS BAD IN LAW BY A HIGHER 3 MA NOS. 342, 343 & 345/M/2014 (A.YS.2003-04 & 2004-05) BINDING AUTHORITY. A DECISION ON A POINT OF LAW WOU LD ALWAYS RELATE BACK TO THE DATE OF ITS ENACTMENT, I.E., WHEN IT COMES IN FORCE. THE IMPUGNED ORDER WAS PASSED BY THE TRIBUNAL ON 12 .01.2011 AND THE ASSESSEES INSTANT APPLICATION/S HAS BEEN MOVED WITH THE TRIBU NAL ON 15.07.2014 , SO THAT IT IS WITHIN THE TIME PERIOD OF FOUR YEARS FROM THE DATE OF ORDE R U/S.254(1). ACCORDINGLY, WE HAVE NO HESITATION IN, CONCEDING THE SAID MISTAKE, DIRECT , IN MODIFICATION OF THE FINDINGS BY THE TRIBUNAL PER PARA 3 OF ITS ORDER, THE ASSESSING OFF ICER TO ALLOW THE ASSESSEE DEDUCTION U/S.80-HHC OF THE ACT FOR THE RELEVANT YEAR/S FOLLO WING THE DECISION BY THE APEX COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA). THIS ORDER SHALL BE READ IN CONJUNCTION W ITH THE IMPUGNED ORDER. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATIONS ARE ALLOWED. 01.*2 !31* ) ! 4 * ) * 5 ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 12, 2014 SD/- SD/- (JOGINDER SINGH) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' 6( MUMBAI; 7! DATED : 12.12.2014 .!. ./ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. 0#8 / THE APPLICANT 2. 9:#8 / THE RESPONDENT 3. ' ;* ( 0 ) / THE CIT(A) 4. ' ;* / CIT CONCERNED 5. > 9*! , 0+ . , ' 6( / DR, ITAT, MUMBAI 6. ?3 @( / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , ' 6( / ITAT, MUMBAI