DEPOSIT INSURANCE CREDIT GURANTEE CORPN LTD, V. ASST CIT (LTU),

MA 599/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0050 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 18-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI .. , ! '#$ % % % % & '( , ) '#$ BEFORE SHRI P.M. JAGTAP, AM AND SHRI AMIT SHUKLA, JM *%*% % #+ / M.A. NO. 599/MUM/2012 ARISING OUT OF ITA NO. 2524/MUM/2012 ( )+ / %0/ )+ / %0/ )+ / %0/ )+ / %0/ / / / / ASSESSMENT YEAR : 2008-09) DEPOSIT INSURANCE & CREDIT GUARANTEE CORPORATION, RBI BUILDING, OPP. MUMBAI CENTRAL STATION, NR. MARATHA MANDIR CINEMA, BYCULLA, MUMBAI 400 098 + + + + / VS. ASST./DY. CIT, (LTU, 28 TH FLOOR, CENTRE 1, WORLD TRADE CENTRE, CUFFEE PARADE, MUMBAI. $1 ! './ PAN : PAN AAACD 2094 E ( 12 / // / APPLICANT ) .. ( 3412 / RESPONDENT ) 12 5 6 ' / APPLICANT BY : SHRI MANISH V. SHAH 3412 5 6 ' / RESPONDENT BY : SHRI DEEPAK KUMAR SINHA '+% 5 ! / // / DATE OF HEARING : 15-03-2013 780 5 ! / DATE OF PRONOUNCEMENT : 15-03-2013 # ' / O R D E R PER P.M. JAGTAP, AM : BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 3-2-2012 PASSED IN ITA NO. 2524/MUM/2011. 2. THE LD. COUNSEL FOR THE ASSESSEE WHILE SUPPORTIN G THIS MISC. APPLICATION FILED BY THE ASSESSEE SUBMITTED BEFORE US THAT THE ALTERN ATIVE CONTENTION RAISED ON BEHALF MA NO. 599/MUM/2012 2 OF THE ASSESSEE ON THE ISSUE OF DISALLOWANCE MADE U /S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (THE ACT) RELYING ON THE DECIS ION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KOTAK SECURITIES LTD. (2012) 346 ITR 352 (BOM) WAS ACCEPTED BY THE TRIBUNAL FOR A.Y. 2007-08 BUT THE S AME WAS REJECTED FOR A.Y. 2008-09 ON THE GROUND THAT THIS DEFENCE WAS NOT AVA ILABLE IN YEAR 2008-09 BECAUSE BY THAT TIME THE REVENUE HAD ALREADY INVOKED THE PR OVISIONS OF SECTION 40(A)(IA) OF THE ACT AND THIS FACT WAS KNOWN TO THE ASSESSEE. H E INVITED OUR ATTENTION TO THE RELEVANT DETAILS GIVEN ON PAGE NO. 3 OF THE PRESENT MISC. APPLICATION AND SUBMITTED THAT THE LAST DATE FOR TDS COMPLIANCE FOR A.Y. 2008 -09 HAD BECOME DUE ON 31-5-2008 I.E. MUCH BEFORE THE ASSESSMENT ORDER FOR A.Y. 2006-07 WAS PASSED BY THE A.O. ON 24-12-2008. HE SUBMITTED THAT THE FIND ING GIVEN BY THE TRIBUNAL THAT THE ASSESSEE WAS AWARE OF THE POSITION ABOUT THE IN VOKING OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE REVENUE AT THE RELEVANT TIME IN SO FAR AS A.Y. 2008-09 WAS CONCERNED THUS IS FACTUALLY INCORRECT A ND TO THAT EXTENT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH IS REQUI RED TO BE RECTIFIED BY PASSING A SUITABLE ORDER AS DEEMED FIT IN FACTS AND CIRCUMSTA NCES OF THE CASE. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT A FINDING WAS SPECIFICALLY RECORDED BY THE TRIBUNAL IN ITS ORDER DTD. 3-2-2012 ON APPRECIATION OF THE RECORD THAT THE POSITION OF ABOUT THE INVOKING OF PROVISIO NS OF SECTION 40(A)(IA) OF THE ACT WAS KNOWN TO THE ASSESSEE AT THE RELEVANT TIME IN A .Y. 2008-09 AND ON THAT BASIS A VIEW WAS TAKEN THAT THE ALTERNATIVE CONTENTION RAIS ED BY THE ASSESSE RELYING ON THE DECISION OF KOTAK SECURITIES LTD. (SUPRA) WAS NOT ACCEPTABLE. HE CONTENDED THAT THE ASSESSEE BY THE PRESENT MISC. APPLICATION IS SE EKING REVIEW OF THE SAID DECISION TAKEN BY THE TRIBUNAL ON FRESH APPRECIATION OF RECO RD WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. MA NO. 599/MUM/2012 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSER VED THAT THE ALTERNATIVE ARGUMENT RAISED BY THE ASSESSE RELYING ON THE DECISION OF HO NBLE BOMBAY HIGH COURT IN THE CASE OF KOTAK SECURITIES LTD. (SUPRA) WAS CONSIDERE D AND DEALT WITH BY THE TRIBUNAL IN PARA NO. 14 OF ITS ORDER WHICH EXTRACTED BELOW : - 14. THE SECOND PART OF THE ARGUMENT IS THAT THE HO NBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KOTAK SECURITIES LTD. [SUPRA ) HAS OBSERVED IN PARA-31 THAT BOTH THE PARTIES HAS PROCEEDED ON THE FOOTING THAT TAX WAS NOT DEDUCTIBLE U/S.194J FOR THE LAST 10 YEARS, THEREFORE, PROVISIO NS OF SEC.40[A][IA] COULD NOT BE INVOKED. IT WAS CONTENDED THAT IN THE LAST MANY YEARS IN THE CASE BEFORE US ALSO NO TAX WAS HELD TO BE DEDUCTIBLE, THEREFORE, A SSESSEE AND DEPARTMENT PROCEEDED ON THE FOOTING THAT NO TAX WAS DEDUCTIBLE . HOWEVER, ON QUERY BY THE BENCH LD. COUNSEL OF THE ASSESSEE ADMITTED THAT IN A.Y 2006-07 DISALLOWANCE U/S.40[A][IA] WAS MADE FOR THE FIRST TIME BUT THAT YEAR WAS NOT AVAILABLE BY THE TIME ASSESSMENT FOR A.Y 2007-08 WAS COMPLETED. HOWE VER, THIS DEFENSE IS NOT AVAILABLE IN A.Y 2008-09 BECAUSE BY THAT TIME REVEN UE HAS ALREADY INVOKED THE PROVISIONS OF SEC.40[A][IA] AND THIS FACT WAS K NOWN TO THE ASSESSEE. THEREFORE, IN OUR OPINION, IN VIEW OF PARA-31 OF TH E DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KOTAK SECURITIES L TD., PROVISIONS OF SEC. 40(A)(IA) ARE NOT APPLICABLE FOR A.Y. 2007-08 WHERE AS THE SAME ARE APPLICABLE IN A.Y. 2008-09. 5. A PERUSAL OF THE RELEVANT PORTION OF THE TRIBUNA LS ORDER EXTRACTED ABOVE CLEARLY SHOWS THAT THE ALTERNATIVE CONTENTION RAISE D BY THE ASSESSEE RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F KOTAK SECURITIES LTD. (SUPRA) WAS REJECTED BY THE TRIBUNAL FOR A.Y. 2008-09 AFTER TAKING INTO CONSIDERATION ALL THE FACTS OF THE CASE, RELEVANT MATERIAL AVAILABLE ON R ECORD AND THE SUBMISSIONS MADE BY BOTH THE SIDES. EVEN A QUERY WAS POSED BY THE B ENCH TO THE LD. COUNSEL FOR THE ASSESSEE TO ASCERTAIN THE RELEVANT POSITION AS EXIS TED AT THE RELEVANT TIME IN SO FAR AS ASSESSMENT YEARS 2007-08 AND 2008-09 WERE CONCER NED. AFTER ASCERTAINING THE RELEVANT POSITION AND ON APPRECIATION OF THE RECORD AVAILABLE AT THE TIME OF HEARING, A FINDING WAS RECORDED BY THE TRIBUNAL THAT THE FAC T THAT THE REVENUE HAD ALREADY INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WAS KNOWN TO THE ASSESSEE AT THE RELEVANT TIME IN SO FAR AS A.Y. 2008-09 IS CONC ERNED AND ACCORDINGLY THE MA NO. 599/MUM/2012 4 ALTERNATIVE CONTENTION RAISED BY THE ASSESSEE RELYI NG ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF KOTAK SECU RITIES LTD. (SUPRA) WAS REJECTED BY THE TRIBUNAL BY TAKING A WELL CONSIDERED VIEW. IN OUR OPINION, WHAT THE ASSESSEE IS NOW SEEKING BY WAY OF THE PRESENT MISC. APPLICAT ION IS RE-APPRECIATION OF FACTS BASED APPARENTLY ON THE NEW INFORMATION NOW FURNISH ED ON RECORD AND REVIEW OF THE WELL CONSIDERED DECISION TAKEN BY THE TRIBUNAL ON S UCH APPRECIATION WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. WE THEREFORE FI ND NO MERIT IN THE MISC. APPLICATION FILED BY THE ASSESSEE AND DISMISS THE S AME. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. 9 : )+ /9 *%*% % #+ !9 5 ;< ORDER PRONOUNCED IN THE OPEN COURT ON 15-03-2013. . # ' 5 780 ! =#+: 15-03-2013 8 5 ( AMIT SHUKLA) (P.M. JAGTAP) ) '#$ / JUDICIAL MEMBER ! '#$ / ACCOUNTANT MEMBER MUMBAI ; =#+ DATED 15/03/2013 %.)+.'./ R.K. , SR. PS # ' 5 3)&* L *0 # ' 5 3)&* L *0 # ' 5 3)&* L *0 # ' 5 3)&* L *0/ COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. 3412 / THE RESPONDENT. 3. M () / THE CIT(A)- CONCERNED, MUMBAI 4. M / CIT CONCERNED, MUMBAI 5. *%O 3))+ , , / DR, ITAT, MUMBAI D BENCH 6. / P / GUARD FILE. # '+' # '+' # '+' # '+' / BY ORDER, '4* 3) //TRUE COPY// Q QQ Q/ // /'; '; '; '; ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI