ACIT, V. M/s. J.P.Tobacco Products (P) Ltd.,

MA 6/JAB/2010

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2614 (ITAT-JABALPUR)
• Duration Of Justice: 12 year(s) 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-09-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 04-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHIJEET SHRIVASTAVA
• Section: 80IA; 254(2); 113

Judgement Text

1 | P a g e IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR (through web-based video conferencing platform) BEFORE SHRI SANJAY ARORA, HON‟BLE ACCOUNTANT MEMBER & SHRI MANOMOHAN DAS, HON'BLE JUDICIAL MEMBER M.A. No. 06/JAB/2010 (Arising out of I.T.A. No. 124/JAB/2008) (Asst. Year: 2005-06) Appellant by : Shri Abhijeet Shrivastava, Advocate Respondent by : Shri Sanjay Kumar, CIT-DR Date of hearing : 09/09/2022 Date of pronouncement : 30/09/2022 O R D E R Per Sanjay Arora, AM: This is a Miscellaneous Application (MA) by the Revenue directed against the Order under section 254(1) of the Income Tax Act, 1961 („the Act‟ hereinafter) dated 30/09/2009 by the Tribunal in respect of the assessee‟s assessment for Assessment Year (AY) 2005-06. 2. One of the issues decided by the Tribunal per the impugned order is the validity of the deduction claimed u/s. 80-IA by the assessee on interest of bank FDRs, which stands allowed by the Tribunal per the impugned order. The Revenue has moved this MA by stating that the said issue had been, after detailed discussion, meeting the case law relied upon by the assessee, decided by the Tribunal in the assessee‟s own case for AY 2003-04, relying on the decision in Pandian Chemicals Ltd. v. CIT [2003] 262 ITR 278 (SC), by confirming the Asst. CIT, Circle, Sagar. vs. J.P. Tobacco Products (P) Ltd., Patharia Pathak, Damoh. [PAN : AAACJ 7141 G] (Applicant) (Respondent) MA No. 06/JAB/2010 (A.Y. 2005-06) J.P. Tobacco Products (P.) Ltd v. Asst. CIT 2 | P a g e disallowance of deduction u/s. 80-IA on bank interest on Bank FDRs. Copy of the said order (ITA No. 291/Jabalpur/2006, dated 12/10/2007) is enclosed along with, reproducing the relevant part of it in its application, as under:- “6. ......... With due respect the facts of the case of the assessee are different in so far as the interest income has no direct nexus with the profits of the industrial undertaking as per provisions of section 80IA of the Act and the ratio laid down by the Hon'ble Supreme Court in the cases of Pandian Chemicals Ltd. vs. CIT (supra) and CIT vs Sterling Foods (supra). In view of the decision of the Hon'ble Apex court in the case of CIT vs Pandian Chemicals Ltd. (supra), with due respect, other cases cited by the ld. counsel are not considered applicable to the facts of the case of the assessee. We are, therefore, of the considered opinion that the interest on fixed deposits cannot be considered as income derived from industrial undertaking for deduction u/s. 80IA of the Act. The claim of the assessee has, therefore, been rightly rejected by the lower authorities. This ground of appeal of the assessee fails.” The matter, accordingly, it is prayed to be decided in terms of law as settled by the Apex Court. 3. We have heard the parties, and perused the material on record. 3.1 The relevant part of the impugned order reads as under:- “21.2 So far as rebate on tendu patta and interest on FDRs is concerned, we are of the opinion that the rebate on tendu patta being rebate allowed the Government on purchases tendu patta and FDRs having been held by us for business purposes, the interest earned on them will qualify for deduction under section 80IA of the Act if not set off against interest paid by the assessee. So far as rebate is concerned, the same being directly related to purchase is, also to be considered for the purpose of deduction u/s. 80IA.” 3.2 The Tribunal, for AY 2003-04, found the assessee‟s claim for deduction u/s. 80-IA on interest on bank term deposits as not tenable on the ground that the said interest cannot be said to be derived from the assessee‟s industrial undertaking, an eligible undertaking u/s. 80-IA. We have for the purpose perused the order by the Tribunal in its entirety, i.e., qua the relevant issue, and not merely the part thereof reproduced by the Revenue in it‟s MA. Further, there is in the impugned order no reference to either the cited decisions, which rather on the issue are aplenty, viz. MA No. 06/JAB/2010 (A.Y. 2005-06) J.P. Tobacco Products (P.) Ltd v. Asst. CIT 3 | P a g e Cambay Electrical Supply Inds. v. CIT [1978] 113 ITR 84 (SC); CIT v. Sterling Foods [1999] 237 ITR 579 (SC); (SC); Orissa State Warehousing Corporation v. CIT [1999] 237 ITR 589 (SC); CIT v. Liberty India [2009] 317 ITR 218 (SC), to cite some, i.e., besides in Pandian Chemicals (supra), relied upon by the Tribunal. There is also no reference by the Tribunal to its earlier decision, i.e., for A.Y. 2003-04, bringing out the distinguishing feature/s, if any, and which we may have prevailed with it in deciding differently, inasmuch as it was otherwise bound to follow the said decision, being not only by a coordinate bench, but in the assessee‟s own case (refer: Union of India v. Raghubir [1989] 178 ITR 548 (SC)). 3.3 The Tribunal was bound to follow the law laid down by the Apex Court, found applicable by it in the assessee‟s case for a preceding year. The same renders it‟s order per incuriam. The same in any case constitutes a mistake within the contemplation of s. 254(2) of the Act, and toward which reference is drawn to the decision in Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466 (SC). 4. In view of the foregoing, the MA by the Revenue is entitled to succeed. We, accordingly, restore the assessee‟s captioned appeal in respect of the said ground/s for adjudication afresh by the Tribunal after hearing the parties in accordance with law. Further, the matter being already long delayed, it be posted for hearing for 21/10/2022. The Registry to accordingly issue notice to the parties for the said date. We decide accordingly. 5. In the result, the Revenue‟s captioned MA is allowed. Order Pronounced in open Court on September 30, 2022. Sd/- Sd/- (Manomohan Das) (Sanjay Arora) Judicial Member Accountant Member Dated: 30/09/2022 vr/- MA No. 06/JAB/2010 (A.Y. 2005-06) J.P. Tobacco Products (P.) Ltd v. Asst. CIT 4 | P a g e Copy to: 1. The Applicant: J.P. Tobacco Products (P) Ltd., Patharia Pathak, Damoh. 2. The Respondent: ACIT, Circle, Sagar 3. CIT-1, Jabalpur (MP) 4. CIT( A)-1, Jabalpur (MP) 5. The CI T-D.R., I TAT, Jabalpur. 6. Guard File. By order (VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Jabalpur.