ACIT, Circle-2(1), Bhubaneswar V. Kendrapada Urban Co-Operative Bank Ltd., Kendrapada

MA 39/CTK/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3624 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-07-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 11-08-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Kendrapara Urban Co Bank ltd., College Square, Tinimuhani, Kendrapara. PAN/GIR No. (Appellant Per Arun Khodpia, AM This is an M.A. filed by the revenue against the order of the Tribunal dated 16.3.2020 in ITA No.376/CTK/2016 for the 2. Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri P.C.Sethi, ld AR appeared for the assessee. 3. It was submitted by ld Sr DR that the Tribunal had held that the amendment to the provisions of section 40(a)(ia) of the Act, 2014 w.e.f. 1.4.2015, wherein, the disallowance was restricted from 100% to 30% was retrospective in effect. It was the submission that the IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.No.39/CTK/2021 (in ITA No.376/CTK/2016) Assessment Year : 2011-12 Kendrapara Urban Co-operative Bank ltd., College Square, Tinimuhani, Kendrapara. Vs. ACIT, Circle No. (Appellant) .. ( Respondent Assessee by : Shri P.C.Sethi,, AR Revenue by : Shri S.C.Mohanty, Sr DR Date of Hearing : 8/7 Date of Pronouncement : 8/7 O R D E R Per Arun Khodpia, AM This is an M.A. filed by the revenue against the order of the Tribunal dated 16.3.2020 in ITA No.376/CTK/2016 for the assessment year 2011 Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri P.C.Sethi, ld AR appeared for the assessee. It was submitted by ld Sr DR that the Tribunal had held that the amendment to the provisions of section 40(a)(ia) of the Act, 2014 w.e.f. 1.4.2015, wherein, the disallowance was restricted from 100% to 30% was retrospective in effect. It was the submission that the Page1 | 3 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER .376/CTK/2016) ACIT, Circle-2(1), Bhubaneswar. Respondent) , AR S.C.Mohanty, Sr DR 7/ 2022 7/2022 This is an M.A. filed by the revenue against the order of the Tribunal assessment year 2011-12. Shri S.C.Mohanty, ld Sr DR appeared for the revenue and Shri It was submitted by ld Sr DR that the Tribunal had held that the amendment to the provisions of section 40(a)(ia) of the Act by the Finance Act, 2014 w.e.f. 1.4.2015, wherein, the disallowance was restricted from 100% to 30% was retrospective in effect. It was the submission that the M.A.No.39/CTk/2021 (in ITA No.376/CTK/2016) Assessment Year : 2011-12 Page2 | 3 impugned assessment year is 2011-12. It was the submission that the Hon’ble Supreme Court has in the case of Shree Choudhary Company, 426 ITR 289 (SC) held that the disallowance u/s.40(a)(ia) as introduced by the Finance Act (No.2) 2014 was prospective. It was the submission that consequently the order of the Tribunal suffers from mistake apparent on record, which call for rectification. It was the submission that the order of the Tribunal may be amended accordingly. 4. In reply, ld AR submitted that there is no mistake apparent from the order of the Tribunal. He submitted that the order was passed on 16.3.2020 by the Tribunal and the order of Hon’ble Supreme Court in the case of Shree Choudhary Company (supra) on 29.,7.2020. Therefore, the order of the Hon’ble Supreme Court was not available to the Tribunal. Consequently, it cannot be said that the order of the Tribunal suffer from any mistake apparent from record. 5. We have considered the rival submissions. The law as laid down by Hon’ble Supreme Court is considered to be the law of the land from the beginning. Admittedly, the decision of Hon’ble Supreme Court in the case of Shree Choudhary Company (supra) was not available to the Tribunal when the appeal was heard and when the order was passed. However, as the Hon’ble Supreme Court has adjudicated on the issue and has laid down the law though on the subsequent date, that is law what is to be applied and non-application of the law as it is understood is a mistake apparent M.A.No.39/CTk/2021 (in ITA No.376/CTK/2016) Assessment Year : 2011-12 Page3 | 3 from the order of the Tribunal. This being so, we find that the order of the Tribunal suffers from a mistake insofar as it is not in the parity with the decision of Hon’ble Supreme Court in the case of Shree Choudhary Company(supra). The order of the Tribunal in ITA No.376/CTK/2016 dated 16.3.2020 for the assessment year 2011-12 in the case of the assessee is recalled and restored to the original position. The appeal is posted for hearing on 21.9.2022. No notice of hearing is to be issued as the date of hearing is pronounced in the open court in the presence of the parties. 6. In the result, M.A. filed by the revenue stands allowed. Order dictated and pronounced in the open court on 8/7/2022. Sd/- sd/- (George Mathan) (Arun Khodpia JUDICIAL MEMBER ACCOUNTANT MEMBER Cuttack; Dated 8/7/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Kendrapara Urban Co-operative Bank ltd., College Square, Tinimuhani, Kendrapara 2. The Respondent. ACIT, Circle-2(1), Bhubaneswar. 3. The CIT(A)-,Cuttack 4. Pr.CIT-, Cuttack 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//