Jammu Club, Jammu V. The Income-tax Officer, Jammu

MA 58/ASR/2012

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7363 (ITAT-AMRITSAR)
• Duration Of Justice: 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: R K GUTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.58(ASR)/2012 (ARISING OUT OF I.T.A. NO.392(ASR)/2012) ASSESSMENT YEAR:2209-2010 PAN :AAAAJ3616N M/S. JAMMU CLUB VS. INCOME TAX OFFICER, JAMMU. WARD 2(1), JAMMU (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.K.GUTA, CA RESPONDENT BY:SH. R.L.CHHANALIA, DR DATE OF HEARING: 28/12/2012 DATE OF PRONOUNCEMENT:31/12/2012 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES OUT OF OUR ORDER DATED 29.11.2012, PASSED IN ITA NO.392(ASR)/2012 FO R THE ASSESSMENT YEAR 2009-2010. THE ASSESSEE HAS FILED WRITTEN SUBMISSIO NS IN THE MISC. APPLICATION, WHICH FOR THE SAKE OF CLARITY ARE REPR ODUCED AS UNDER: THE PERUSAL OF ORDER PASSED BY THE HONBLE BENCH R EVEALS THAT A MISTAKE WHICH IS APPARENT FROM RECORD HAS OCCURRED TO THE HONBLE MEMBERS WHILE ADJUDICATING THE APPEAL OF THE APPELL ANT. IT IS DETAILED AS UNDER: MA NO.58(ASR)/2012 2 IT WAS BROUGHT TO THE ATTENTION OF HONBLE BENCH TH AT IN CASE LAW COMMISSIONER OF INCOME TAX VS. BANKIPUR CLUB LTD. PLACED AT PAGE 109 OF THE PAPER BOOK, THE PARAS 2,3 & 4 AT PAGE 2 OF THE PAPER BOOK WHICH WERE READ ALSO & ARE REPRODUCED FOR THE SAKE OF CONVENIENCE.: PARA-2 THIS BATCH OF 23 CASES WAS POSTED TOGETHER. THAT WAS SO DONE ON THE BASIS THAT THE SAME AND IDENTICAL POINT ARISES FOR CONSIDERATION IN ALL OF THEM. ON FURTHER VERIFICATI ON, IT TURNED OUT THAT IN 7 APPEALS, THE POINT THAT ARISES FOR CONSIDERATI ON IS LITTLE DIFFERENT. ON THE QUESTION ARISING IN THOSE APPEALS NO ARGUMEN TS WERE ADVANCED. SO, THE SAID SEVEN APPEALS ARE DE-LINKED, TO BE POS TED LATER FOR HEARING. PARA-3 FOR CONVENIENCE SAKE, THE 23 CASES INCLUDIN G SEVERAL APPEALS WHICH ARE DE-LINKED CAN BE CLASSIFIED INTO 5 GROUPS. GROUP-A: C.A. NOS. 854-858/86 CIT VS. BANKIPUR CLUB LTD.; GR OUP B : C.A.NOS.505/92 AND 3974/92 CIT VS. RANCHI CLUB LTD; GROUP C: C.A.NO. NO3382/97 (ARISING OUT OF SLP(C) NO.22644/9 4 AND C.A.NO.10194/95 CIT VS. CRICKET CLUB OF INDIA; GROU P D: C.A.NOS. 1635/94, 2380-82/94 AND C.A.NO.3383/97 (ARISING OUT SLP NO. 2811/94 CIT VS. NORTHERN INDIA MOTION PICTURES ASSO CIATION; GROUP E: C.A. NOS. 4777-78/89, 4534/91.8046/95, 1773(NT)/ 92, 4303/95 AND 3840/96 CIT VS. CAWNPORE CLUB LTD. PARA-4: AS STATED EARLIER, THE APPEALS COMING WITH IN GROUP-E CIT VS. CAWNPORE CLUB LTD ( SEVEN APPEALS) ARE DELI NKED AND THEY WILL BE POSTED SEPARATELY TO BE HEARD ON MERITS. WE SHALL INDICATE THE REASON FOR THIS A LITTLE LATER. THE REASON FOR DELINKING THE APPEALS OF CIT VS. C AWNPORE CLUB LTD (SEVERAL APPEALS) WHICH IS AT PAGE 8 AND P ARA 13 WAS ALSO READ AND NOW REPRODUCED. THE ABOVE FOUR SETS OF CASES FALLING IN GROUPS A TO D SHALL ALONE BE COVERED BY THIS JUDGMENT. WITH REGARD TO 7 CASES/APPEALS FALLING IN GROUP E THE ASSESSEE IS CAWNPORE CLUB LT D. IT IS SEEN THAT THE INCOME THAT WAS SOUGHT TO BE ASSESSED IN THE CA SE OF ASSESSEE, WAS ONE DERIVED FROM PROPERTY LET OUT AND ALSO INTEREST RECEIVED FROM FDR, NSC ETC. IN THESE CASES, THE COURT HELD THAT I NCOME SHOULD BE ASSESSED AS ONE FROM OTHER SOURCES AND NOT INCOME FROM PROPERTY. IT DOES NOT APPEAR THAT THE LARGER PLEA THAT THE IN COME IS TOTALLY EXEMPT MA NO.58(ASR)/2012 3 ON THE PRINCIPAL OF MUTUALITY, WAS DECIDED IN FAVOU R OF THE ASSESSEE. IN THE APPEALS FILED BY THE REVENUE, THE ONLY QUESTION THAT MAY PROBABLY ARISE IS, WHETHER INCOME RECEIVED FROM THE PROPERT Y LET OUT AND INTEREST BY WAY OF FDRS, NSC ETC. CAN BE BROUGHT T O TAX UNDER THE HEAD INCOME FROM PROPERTY. SINCE THE ISSUE RAISED IN THIS BATCH OF SEVERAL CASES, IS NOT SIMILAR TO OR SAME AS THE ONE INVOLVED IN THE OTHER CASES COMING UNDER GROUP A AND D, WE DO NOT PROPOSE TO DEAL EITHER WITH THE FACTS OR THE DECISIONS RENDERED BY THE AUT HORITIES IN THIS BATCH OF CASES (GROUP E). ALL THAT WE PROPOSE TO DO IS TO DE-LINK THE CASES COMING UNDER GROUP A TO D, WE DO NOT PROPOSE TO DEA L EITHER WITH THE FACTS OR THE DECISIONS RENDERED BY THE AUTHORITIES IN THIS BATCH OF CASES (GROUP E). ALL THAT WE PROPOSE TO DO IS TO DE-LINK THE CASES COMING UNDER GROUP E AND DIRECT THEM TO BE POSTED SEPARATE LY FOR HEARING AND DISPOSAL BEFORE AN APPROPRIATE BENCH. NOW THIS PARA CLEARLY REVEALS THAT ONE OF THE ISSUE FOR WHICH THESE SEVERAL APPEALS OF CAWNPORE CLUB LTD. IS INTEREST O N FDRS. FINALLY, IT WAS ARGUED LATER THAT ON THIS ISSUE THE HONBLE SUPREME COURT IN ITS JUDGMENT PLACED AT PAGE 19-20 OF THE P APER BOOK HAVE DISMISSED ALL THESE SEVERAL APPEALS OF REVENUE THAT THEREFORE NO USEFUL PURPOSE WOULD BE SERVED BY PROCEEDING WITH T HE APPEALS ON OTHER QUESTIONS WHEN THE ASSESSEE CANNOT BE TAXED B ECAUSE OF PRINCIPAL OF MUTUALITY APPEALS DISMISSED. IT WAS ALSO ARGUED THAT IN THE CASE AMAR SINGH VS. CIT (2010) 229 CTR 447 (J&K) WHICH HAVE BEEN ADJUDICATED ON SPECIF IC ISSUE OF INTEREST ON FDR, THAT THE CASE LAW OF CAWNPORE CLUB LTD. AS ADJUDICATED BY HONBLE APEX COURT HAS NOT BEEN DISC USSED BY JURISDICTIONAL HIGH COURT AS IT HAS OMITTED THE AT TENTION BECAUSE NO SIDE HAS QUOTED THIS JUDGMENT. THEREAFTER, ON A SPECIFIC QUERY OF THE HONBLE BENC H, IT WAS ARGUED THAT A DECISION OF THE SUPREME COURT BECOMES A PRE CEDENT UNDER ARTICLE 41 OF THE CONSTITUTION WHEN A QUESTION IS D IRECTLY RAISED AND CONSIDERED. THE DECISION BECOMES A LAW. ACCORDINGLY, WHEN THE DIRECT QUESTION I.E. ISSUE OF INTEREST ON FDR STANDS ADJUDICATED BY HONBLE APEX COURT IN FAVOUR OF THE ASSESSEE AS NOT TAXABLE BY FOLLOWING THE PRINCIPAL OF MUTUALITY THEN DECISION OF MA NO.58(ASR)/2012 4 APEX COURT BECOMES A LAW & SUPREMO OVER THE DECISIO N OF HONBLE JURISDICTIONAL HIGH COURT. IN THE ABSENCE OF THIS FINDING IN THE ORDER OF HON BLE BENCH, THIS APPLICATION U/S 254 HAS MERITS & BASED ON THIS THE ORIGINAL ORDER NEEDS TO BE RECALLED AND NEEDS AFRESH ADJUDICATION ON MER ITS AS DISCUSSED ABOVE. 2. THE LD. COUNSEL FOR THE ASSESSEE, MR. R.K. GUPTA , CA INVITED OUR ATTENTION TO THE DECISION OF COMMISSIONER OF INCOME TAX VS. BANKIPUR CLUB LTD. PLACED AT PB 1-9 WITH SPECIFIC REFERENCE TO P ARAS 2, 3 & 4 OF THE SAID DECISION WHERE THE HONBLE SUPREME COURT WHILE HEAR ING BATCH OF 23 CASES POSTED TOGETHER, DELINKED AT BATCH OF 7 APPEALS. T HE SEVEN APPEALS WERE TERMED AS GROUP-E RELATING TO THE DECISION OF CIT V S. CAWNPORE CLUB LTD. FOR POSTING SEPARATELY TO BE HEARD ON MERITS. THE H ONBLE SUPREME COURT IN PARA 4 OF ITS ORDER HELD THAT THE HONBLE COURT SHA LL INDICATE THE REASON FOR THIS A LITTLE LATER. THE REASON FOR DELINKING THE APPEAL OF THE CIT VS. CAWNPORE CLUB LTD. ( SEVEN APPEALS) AVAILABLE AT P AGE 8 PARA 13 OF THE PAPER BOOK IN THE MAIN APPEAL OF THE SAID JUDGMENT OF HONBLE SUPREME COURT HAS BEEN READ BY THE LD. COUNSEL FOR THE ASSE SSEE, MR. R.K. GUPTA,CA. MR. R.K.GUPTA, THEREFORE, ARGUED THAT THIS PARA CLE ARLY REVEALS THAT ONE OF THE ISSUES FOR WHICH SEVEN APPEALS OF CIT VS. CAWNP ORE CLUB LTD. WERE DELINKED IS INTEREST ON FDRS. THE SAID DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. CAWNPORE CLUB LTD. IN SEVEN CIVIL APPEALS WAS PLACED AT MA NO.58(ASR)/2012 5 PAPER BOOK PAGES 19 & 20, WHICH DECISION HAS BEEN C ITED BY US IN OUR ORDER IN ITA NO.392(ASR)/2012 DATED 29.11.2012. THE HONB LE SUPREME COURT HAS DISMISSED THE APPEALS OF THE REVENUE ON OTHER Q UESTIONS AND THE OTHER QUESTION AS MENTIONED BY THE LD. COUNSEL FOR THE AS SESSEE, MR. R.K. GUPTA, CA, IS INTEREST ON FDRS. THEREFORE, UNDER ARTICLE 1 41 OF THE CONSTITUTION, A DECISION OF THE HONBLE SUPREME COURT BECOMES A PRE CEDENT WHEN A QUESTION IS DIRECTLY RAISED AND CONSIDERED AND SUC H DECISION BECOMES LAW OF THE LAND. IT WAS AGAIN POINTED OUT BY THE LD. COUNS EL FOR THE ASSESSEE, MR. R.K. GUPTA, CA THAT SUCH DECISION OF HONBLE SUPREM E COURT IN THE CASE OF CIT VS. CAWNPORE CLUB LTD. AND OF CIT VS. BANKIPU R CLUB INDIA REPORTED IN (1997) 226 ITR 97 WAS REFERRED TO THE ITAT IN HIS ARGUMENT AND IS A PART OF THE PAPER BOOK AT PAGES 1 TO 9, WHICH HAS N OT BEEN CONSIDERED BY THE ITAT WHILE PASSING THE ORDER DATED 29.11.2012. THIS IS A MISTAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT AND THEREFORE, PR AYED TO RECALL THE ORDER FOR FRESH ADJUDICATION ON MERITS. 3. THE LD. DR, MR. R.L. CHHANALIA, ON THE OTHER HAN D, RELIED UPON THE ORDER OF THE ITAT, PASSED IN ITA NO.392(ASR)/2012 D ATED 29.11.2012 AND ARGUED THAT THE ISSUE IS COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF AMAR SINGH CLUB, JAMMU VS. CIT REPORTED IN (2010) 229 CTR 446 (J&K), WHICH HAS BEEN ADJUDICATED ON SP ECIFIC ISSUE OF MA NO.58(ASR)/2012 6 INTEREST ON FDRS. THEREFORE, THE ITAT IS BOUND TO F OLLOW THE DECISION OF THE JURISDICTIONAL HIGH COURT OF JAMMU & KASHMIR. THE S AME ORDER HAS BEEN DEALT BY THE ITAT IN ITS ORDER DATED 29.29.11.2012 AND THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON VERIFICATION, IT WAS FOUND THAT THE LD. COUNSEL FOR THE ASSESSEE HAD REFERRED TO THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS. BANKIPUR CLUB LTD. (1997) 226 ITR 96 (PLACED AT PB 1 TO 9) WHILE HEARING THE APPEAL IN ITA NO.392(ASR)/2012, THE SAME HAS NO T BEEN CONSIDERED BY THE ITAT IN OUR ORDER DATED 29.11.2012. 4.1. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSE SSEE, MR. R.K. GUPTA, CA, THAT SEVERAL APPEALS RELATING TO CIT VS. CAWNPO RE CLUB LTD. WERE DELINKED BY THE HONBLE SUPREME COURT IN ITS ORDER DATED 08.05.1997 IN THE CASE OF CIT VS. BANKIPUR CLUB LTD., WHICH IN FACT B EING THE APPEALS OF THE REVENUE HAVE BEEN DISMISSED BY THE HONBLE SUPREME COURT REPORTED IN ITS ORDER DATED 05.02.1998 (2004) 140 TAXMAN 378. AS A MATTER OF FACT, THE DECISION OF THE HONBLE SUPREME COURT, DATED 05.02. 1998 (SUPRA) SHOULD HAVE BEEN CONSIDERED ALONGWITH THE DECISION OF HON BLE SUPREME COURT DATED 08.05.1997 (SUPRA), WHICH GOES DEEP INTO THE ROOT OF THE MATTER AND THE DECISION, WHICH HAS NOT BEEN CONSIDERED IN OUR ORD ER DATED 29.11.2012. MA NO.58(ASR)/2012 7 THEREFORE, NON-CONSIDERATION OF THE JUDGMENT OF THE HONBLE SUPREME COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD. THEREFO RE, OUR ORDER DATED 29.11.2012 IS ORDERED TO BE RECALLED AND REGISTRY I S DIRECTED TO FIX UP THE MATTER BEFORE THE BENCH ON 28.03.2013 AND INFORM TH E PARTIES WELL IN ADVANCE. ACCORDINGLY, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE M.A.NO.58(ASR)/2012 OF THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST DECEMBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31ST DECEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. JAMMU CLUB, JAMMU. 2. THE ITO WARD 2(2), JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.