AKASH LAND DEVELOPERS, V. DCIT CIR 4,

MA 600/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5323 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 12-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N DEVADASAN
• Assessee Lawyers: AJAY R SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM M.A.NO.600/MUM/2010 (ARISING OUT OF ITA NOS.7352 & 226/MUM/2009 : ASST. YEAR 2005-2006) M/S.AKASH LAND DEVELOPERS SUMATI SADAN, PURANDARE WADI NEAR SARASWAT CO-OP.BANK, BAZAR WARD VIRA (EAST), DIST. THANE 401 305. PA NO.AACFA2289B. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 4 MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI AJAY R.SINGH RESPONDENT BY : SHRI P.N.DEVADASAN 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 18 TH JUNE, 2010 IN ITA NOS.7352 & 226/MUM/2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE TRIBUNAL WHILE DECIDING THE QUESTION OF DEDUCTION U/S.80-IB(10) FO R ASSESSMENT YEAR 2003-2004 RELIED ON THE ORDER PASSED BY THE TRIBUNAL IN ASSES SEES OWN CASE FOR ASSESSMENT YEAR 204-2005 AND REMITTED THE MATTER TO THE FILE O F A.O. FOR DECIDING THE ISSUE IN ACCORDANCE WITH THE SPECIAL BENCH ORDER IN THE CASE OF BRAHMA ASSOCIATES VS. JCIT [(2009) 119 ITD 255 (PUNE) (SB)] . IT WAS STATED THAT THERE IS NO OBJECTION TO THE ASSESSEE ON THE FINDING GIVEN BY THE TRIBUNAL F OR ASSESSMENT YEAR 2003-2004. HOWEVER IT WAS CONTENDED THAT FOR ASSESSMENT YEAR 2 005-2006, THE TRIBUNAL HAS HELD THAT THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEARS 2003-2004 AND 2004-2005 CANNOT BE APPLIED DUE TO CHANGE OF LAW WITH EFFECT FROM ASSESSMENT YEAR 2005- 2006. IT WAS ARGUED THAT THE ASSESSEE DID NOT GET A NY OPPORTUNITY OF MAKING ITS POINT OF VIEW ON THE AMENDMENT IN LAW AS THIS POSIT ION WAS NOT CONFRONTED BY THE BENCH TO THE PARTIES DURING THE COURSE OF HEARING. IN THE OPPOSITION THE LEARNED MA NO.600/MUM/2010 M/S.AKASH LAND DEVELOPERS. 2 DEPARTMENTAL REPRESENTATIVE CONTENDED THAT THE TRIB UNAL HAS RECORDED A CORRECT FINDING IN HOLDING THAT FOR ASSESSMENT YEAR 2005-20 06 THE LAW APPLICABLE FOR THE SAID YEAR SHOULD BE CONSIDERED. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THERE IS AN AMENDMENT TO SECT ION 80-IB(10) WITH EFFECT FROM 2005-2006. WHEN THE QUESTION IS THAT OF GRANTING DE DUCTION UNDER THIS SECTION, IT IS BUT NATURAL THAT THE RELEVANT LAW FOR THE YEAR IN QUESTION HAS TO BE APPLIED. THE ASSESSEE CANNOT BE AGGRIEVED AGAINST THE APPLICATIO N OF CORRECT LAW TO THE FACTS OF THE CASE. RATHER IT IS THE DUTY OF THE PARTIES TO B RING ON RECORD THE CORRECT LEGAL POSITION QUA THE APPLICABILITY OF LAW TO THE FACTS UNDER CONSID ERATION. IN OUR CONSIDERED OPINION THERE IS NO MISTAKE, MUCH LESS A MISTAKE APPARENT FROM RECORD, REQUIRING RECTIFICATION. THE TRIBUNAL HAS RIGHTLY R ESTORED THE MATTER TO THE FILE OF AO WITH A DIRECTION TO APPLY THE PROVISIONS OF SECT ION 80-IB(10) AS APPLICABLE TO ASSESSMENT YEAR 2005-2006. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 26 TH DAY OF NOVEMBER, 2010. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 26 TH NOVEMBER, 2010. DEVDAS* MA NO.600/MUM/2010 M/S.AKASH LAND DEVELOPERS. 3 COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) II, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.