B.S. INTERNATIONAL (BOMBAY ), V. ASST CIT CIR 17(3),

MA 374/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1298 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 11-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: SATENDRA PANDEY
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 374/MUM/2013 (ARISING OUT OF ITA NO. 1962/MUM/2012) ASSESSMENT YEAR: 2000-01 M/S. B.S INTERNATIONAL (BOMBAY) 37, BARRISTER NATH PAI MARG, COTTON GREEN, MUMBAI-400 033 VS. ACIT CIRCLE 17(3) MUMBAI (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :-AAAFB 1735 D APPELLANT BY : SHRI K. GOPAL & SATENDRA PANDEY RESPONDENT BY : SHRI PITAMBAR DAS DATE OF HEARING : 13.12.2013 DATE OF PRONOUNCEMENT : 13.12.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE ON 11.10.2013 U/S 254 CLAUSE 2 OF THE INCOME TAX ACT SEEKING RECTIFICATIO N WITH REFERENCE TO GROUNDS NO. 1 & 2 OF APPEAL ITA NO. 1962/MUM/2012 FOR THE ASSESSM ENT YEAR 2000-01, WHICH HAS BEEN ADJUDICATED BY US VIDE ORDER DATED 07.06.2013. 2. DURING THE PROCEEDING BEFORE US, SHRI K.GOPAL, T HE LD.COUNSEL FOR THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE MISCELLAN EOUS APPLICATION AND STATED THAT THERE IS A NEED FOR MAKING RECTIFICATIONS IN THE SA ID ORDER OF THE TRIBUNAL DATED 07.06.2013. THE IMPUGNED RECTIFICATIONS ARE REQUIRE D TO BE DONE QUA THE GROUNDS NO. 1 & 2 OF THE APPEAL ON ADJUDICATION OF THE ISSU E WHETHER THE APPLICANT IS ELIGIBLE TO CLAIM THE BENEFIT OF DEDUCTION UNDER SECTION 80H HC OF THE INCOME TAX ACT. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS PERTINENT TO NOTE THAT ORIGINALLY ON THE ISSUE OF C LAIM OF DEDUCTION, THE HONBLE M.A. NO. 374/MUM/2013 (ARISING OUT OF ITA NO. 1962/MUM/2012) M/S. B.S INTERNATIONAL ASSESSMENT YEAR: 2000-01 2 BOMBAY HIGH COURT VIDE THEIR ORDER DATED 25.10.2010 HAS DIRECTED THE AO TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW IN THE LIGH T OF THE JUDGMENT RENDERED IN THE CASE OF CIT VS. KALPATARU COLOUR & CHEMICALS. ACCOR DINGLY, THE AO DECIDED THE ISSUE FOLLOWING THE SAID DECISION OF HONBLE BOMBAY HIGH COURT. ON APPEAL, THE LD.CIT(A) HAS CONFIRMED THE SAME. WHEN THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL AND PENDING THE SAME, THE HONBLE SUPREME COURT HAS REVERSED THE HONBLE BOMBAY HIGH COURTS DECISION IN THE CASE OF CIT VS. KALPAT ARU COLOUR & CHEMICALS, WHICH HAS PLACED THE ASSESSEE ELIGIBLE FOR CLAIMING THE BENEF IT. 4. THE TRIBUNAL, VIDE ORDER DATED 07.06.2013, HAS O BSERVED THAT THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KALPATARU COLOUR & CHEMICALS (2010) 328 ITR 451 (BOM) HAS BEEN SET ASI DE AND REVERSED BY THE HONBLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT (2012) 342 ITR 49 (SC) WHICH IN TURN HAS UPHELD THE ORDER OF THE ITAT MUMBAI SPECIAL BENCH AND THE ASSESSEES APPEAL IS BOTH FACTUALLY AND LEGALLY ACC EPTABLE ON MERITS IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F TOPMAN EXPORTS, DATED FEBRUARY, 2012. HOWEVER, IN VIEW OF THE EXISTING DI RECTION OF THE HONBLE HIGH COURT IN THE ASSESSEES OWN CASE IN ITA NO. 3019 OF 2010 DATED 25.10.2010, DUE TO JUDICIAL DISCIPLINE, HAS EXPRESSED THE PROCEDURAL C ONSTRAINS TO PROVIDE THE REQUISITE RELIEF TO THE ASSESSEE AS THIS TRIBUNAL HAS NO AUTH ORITY TO DIRECT THE AO TO FOLLOW THE DECISION OF THE SUPREME COURT IN CONTRAVENTION OF T HE SAID EXISTING DIRECTION OF THE JURISDICTIONAL HIGH COURT. ACCORDINGLY, THE ASSESSE E HAS BEEN DIRECTED TO APPROACH THE APPROPRIATE FORUM TO SEEK THE RELIEF IN VIEW OF THE EXISTING DIRECTION OF THE JURISDICTIONAL HIGH COURT. IN THIS CONNECTION, THE CONTENTS OF PARA 5.1 OF THE ORDER OF THE TRIBUNAL DATED 07.06.2013 ARE RELEVANT. IT IS T HE CONTENTION OF THE LD.COIUNSEL FOR THE ASSESSEE THAT IN VIEW OF THE PROVISIONS OF ARTICLE 141 OF THE CONSTITUTION OF INDIA, THE TRIBUNAL OUGHT TO HAVE DIRECTED THE AO T O DECIDE THE CLAIM IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F TOPMAN EXPORTS VS. CIT (2012) 342 ITR 49 (SC) INSTEAD OF DIRECTING THE ASSESSEE T O APPROACH THE APPROPRIATE FORUM TO SEEK THE RELIEF IN VIEW OF THE EXISTING DIRECTIO N OF THE JURISDICTIONAL HIGH COURT IN THE ASSESSEES OWN CASE. IN THIS CONNECTION, IT IS PERTINENT TO NOTE THAT WE ARE WELL AWARE OF THE LEGAL POSITION THAT AS PER ARTICLE 141 OF THE CONSTITUTION OF INDIA, THE M.A. NO. 374/MUM/2013 (ARISING OUT OF ITA NO. 1962/MUM/2012) M/S. B.S INTERNATIONAL ASSESSMENT YEAR: 2000-01 3 LAW DECLARED BY THE SUPREME COURT SHALL BE BINDING ON ALL COURTS WITHIN THE TERRITORY OF INDIA . HOWEVER, IT IS RELEVANT TO STATE THAT THIS TRIBUNAL IS NOT A PRIVY TO THE EARLIER DIRECTION WHICH HAS BEEN GIVEN EFFECT BY THE LOWER AUTHORITIES ON THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL ADJUDICATED BY US VID E ORDER DATED 07.06.2013. CONSIDERING THE SAID FACT, WE HAVE CONSCIOUSLY TAKE N THE VIEW THAT THE TRIBUNAL IS NOT COMPETENT TO ISSUE A DIRECTION IN CONTRAVENTION TO THE EXISTING SPECIFIC DIRECTION OF THE HONBLE HIGH COURT. THEREFORE, THE SAID ORDE R OF THE TRIBUNAL, IN OUR VIEW, DOES NOT SUFFER FROM ANY MISTAKE APPARENT FROM THE RECORD AND THE SUBMISSIONS OF THE LD. COUNSEL IN THE MISCELLANEOUS APPLICATION AR E UNSUSTAINABLE. RESULTANTLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF DECEMBER, 2013. SD/- SD/- (SANJAY ARORA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 13.12.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.