PRABHUDAS LILLODHER P. TD, V. DCIT,

MA 499/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7821 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 12-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM M.A.NO.499/MUM/2011 (ARISING OUT OF ITA NO.3269/MUM/2009 : ASST. YEAR 2 004-2005) M/S.PRABHUDAS LILLADHAR PRIVATE LIMITED 3 RD FLOOR, SADHANA HOUSE P.B.MARG, 570 WORLI MUMBAI 400 018. PAN : AAACP2733Q. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI SAMEER DALAL RESPONDENT BY : SHRI P.C.MAURYA DATE OF HEARING : 16.03.2012 DATE OF PRONOUNCEMENT : 16.03.2012 O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 03.03.2010 IN ITA NO.3269/MUM/2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE TRIBUNAL PASSED EX PARTE QUA THE ASSESSEE ON 3 RD MARCH, 2010 ACCEPTING REVENUES CLAIM FOR NOT ALLOWING DEPRECIATION ON BOMBAY STOCK EXCHANGE MEMB ERSHIP CARD FOR THE ASSESSMENT YEAR 2004-2005. AN AFFIDAVIT HAS BEEN FI LED STATING THE REASONS FOR NON- PRESENCE OF THE ASSESSEE OR ITS REPRESENTATIVE WHEN THIS APPEAL WAS CALLED ON FOR HEARING. APART FROM CONTENDING THAT THE EX PARTE ORDER SHOULD BE RECALLED IN TERMS OF RULE 25 OF THE INCOME TAX APPELLATE TRIBUNAL RUL ES, 1963, THE LEARNED AUTHORIZED REPRESENTATIVE ALSO CONTENDED THAT THE I SSUE IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT O F THE HONBLE SUPREME COURT IN THE CASE OF TECHNO SHARE AND STOCKS LIMITED VS. CIT [(2010) 327 ITR 323 (SC)]. MA NO.499/MUM/2011 M/S.PRABHUDAS LILLADHAR PRIVATE LIMITED. 2 IT WAS, THEREFORE, PRAYED THAT THE ONLY GROUND RAIS ED BY THE REVENUE IN ITS APPEAL SHOULD HAVE BEEN DISMISSED. NO SERIOUS OBJECTION WA S TAKEN BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS OBSERVED THAT THE TRIBUNAL PASSED EX PARTE ODER QUA THE ASSESSEE ON MERITS. THE FACT REMAINS THAT THE TRIBUNAL ALLOWED THE REVENUES APPEAL ON THE QUESTION OF DECLINING DEPRECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CARD BY RELYING ON THE JUDGMENT OF THE HONBLE JURISDICT IONAL HIGH COURT IN THE CASE OF CIT V. TECHNO SHARE AND STOCKS LIMITED [225 CTR 337 ]. THE LEARNED A.R. HAS RIGHTLY POINTED OUT THAT THE SAID JUDGMENT OF THE H ONBLE JURISDICTIONAL HIGH COURT HAS SINCE BEEN REVERSED BY THE HONBLE SUPREME COUR T IN 327 ITR 323. IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT DECIDING THE QUESTION OF ALLOWING DEPRECIATION ON BOMBAY STOCK EXCHANGE MEMBERSHIP CA RD, IN FAVOUR OF THE ASSESSEE, IT BECOMES APPARENT THAT THE TRIBUNAL ORD ER TAKING CONTRARY VIEW ON THE BASIS OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AT THAT TIME, NOW SUFFERS FROM AN INFIRMITY REQUIRING RECTIFICATION. 4. RULE 25 OF THE INCOME TAX APPELLATE TRIBUNAL RUL ES, 1963 PROVIDES THAT : WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTHER D AY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEA L IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT. PROVISO TO THIS RULE STIPULATES THAT : WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE RESPONDENT APPEARS AFTERWARDS AND SAT ISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN TH E APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. IN THE LIGHT OF THE AFFIDAVIT FILED ON BEHALF OF THE ASSESSEE, WE MA NO.499/MUM/2011 M/S.PRABHUDAS LILLADHAR PRIVATE LIMITED. 3 ARE SATISFIED WITH THE GENUINENESS OF THE REASON FO R NOT ATTENDING THE APPEAL WHEN IT WAS CALLED ON FOR HEARING. 5. ORDINARILY WE WOULD HAVE RECALLED THE IMPUGNED T RIBUNAL ORDER IN ACCORDANCE WITH RULE 25 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. HOWEVER KEEPING INTO CONSIDERATION THE FACT THAT TH E ISSUE RAISED IN THIS APPEAL IS NO MORE RES INTEGRA , RECALLING THE IMPUGNED ORDER AND AGAIN IN A FRESH PROCEEDINGS DECIDING THE ISSUE FOLLOWING THE JUDGMENT OF THE HO NBLE SUPREME COURT, WOULD BE A MERE RITUAL. IN OUR CONSIDERED OPINION THERE IS N O POINT IN MULTIPLICATION OF PROCEEDINGS WHEN THE ISSUE IS DIRECTLY COVERED BY T HE JUDGMENT OF THE HONBLE SUPREME COURT, WHICH FACT HAS BEEN CANDIDLY ACCEPTE D BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AS WELL. UNDER SUCH CIR CUMSTANCES, WE PROCEED TO DECIDE THE QUESTION ON MERITS HERE ITSELF, INSTEAD OF RECALLING THE IMPUGNED ORDER. ON MERITS, THE ABOVE REFERRED JUDGMENT OF THE HONB LE SUPREME COURT IS FULLY APPLICABLE ON THE FACTS OF THE PRESENT CASE BY WHIC H THE ASSESSEE IS ENTITLED TO DEPRECIATION ON THE BOMBAY STOCK EXCHANGE MEMBERSHI P CARD FOR THE ASSESSMENT YEAR 2004-2005. THE IMPUGNED ORDER IS, THEREFORE, MODIFIED PRO TANTO AND RESULTANTLY THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED AND THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF MARCH, 2012. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 16 TH MARCH, 2012. DEVDAS* MA NO.499/MUM/2011 M/S.PRABHUDAS LILLADHAR PRIVATE LIMITED. 4 COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) IV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.