ITO 15(2)-3, V. SHIVASSA APPARELS,

MA 611/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6443 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2004-2005
• Appeal Filed On: 15-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Retrospective amendment; Revised return
• Section: 10AA; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) AND SHRI PRAMOD KUMAR (A.M) MA NO.611/MUM/2010 (ARISING OUT OF ITA NO.6182/MUM/2007,A.Y.2004-05) INCOME TAX OFFICER 15(2)-3, ROOM NO.121, MATRU MANDIR, 1 ST FLOOR, TARDEO, MUMBAI 400 007. (APPLICANT) VS. M/S. SHIVASSA APPARELS, SARAF & CHANDRA (C.A), BHARAT INSURANCE BUILDING, 3 RD FLOOR, 15-A, HORNIMAN CIRCLE, FORT, MUMBAI 400 001. PAN:AAUFS 9219F (RESPONDENT) APPLICANT BY : SHRI D.SONGATE RESPONDENT BY : SHRI M.SUBRAMANIAN ORDER PER N.V.VASUDEVAN, J.M, THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE PRAYING THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM AN APPARENT MISTAKE AND THE SAME SHOULD BE RECTIFIED. IN THE ABOVE APPEAL FIELD BY THE ASSESSEE TWO ISSUES AROSE FOR CONSIDERATION (I) WHETHER THE ASSESSEE WO ULD BE ENTITLED TO DEDUCTION UNDER SECTION 80 IB OF THE INCOME TAX ACT , 1961 (THE ACT) IN RESPECT OF DEPB AMOUNT RECEIVED AND DUTY DRAW BACK, (II) WHETHER THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SECTION 80 HHC OF THE ACT. 2. ON THE ISSUE OF DEDUCTION UNDER SECTION 80 IB OF THE ACT THE TRIBUNAL DECIDED AGAINST THE ASSESSEE. AS FAR AS THE DEDUC TION UNDER SECTION 80 HHC OF THE ACT IS CONCERNED THE TRIBUNAL NOTICED TH AT THE ASSESSEE HAD MADE A CLAIM FOR DEDUCTION UNDER SECTION 80 HHC OF THE ACT IN THE FORM OF A LETTER DATED 27/12/2006 FILED IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE AO REJECTED THE CLAIM ON THE GROUND THAT THE CL AIM WAS NOT MADE IN THE M.A.NO.458 TO 460/MUM/2010 2 RETURN OF INCOME. ON APPEAL BY THE ASSESSEE THE C IT(A) HELD THAT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF GOETZE INDIA LTD., 284 ITR 323 (SC) THE ACTION OF THE AO WAS JUSTIFIED . ON FURTHER APPEAL BY THE ASSESSEE THE TRIBUNAL DIRECTED THE AO TO EXAMIN E THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW HOLDING THAT THE CL AIM CANNOT BE REJECTED ONLY ON THE GROUND THAT CLAIM WAS MADE ONLY BY WAY OF LETTER BEFORE THE AO. IN COMING TO THE ABOVE CONCLUSION THE TRIBUNAL PLAC ED RELIANCE ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. JAI PARABOLIC SPRINGS LTD. 306 ITR 42(DEL), WHEREIN IT WAS HELD T HAT TRIBUNAL HAS POWER TO ENTERTAIN THE CLAIM BY WAY OF ADDITIONAL GROUND WHI CH ARISES FOR CONSIDERATION IN AN ASSESSMENT AND NECESSARY PROPER DECISION OF THE CASE AND THAT THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD.(SUPRA) WILL NOT BE APPLICABLE TO THE PO WERS OF THE TRIBUNAL TO ENTERTAIN A NEW CLAIM. 3. IN THE PRESENT MISCELLANEOUS APPLICATION THE REV ENUE HAS CONTENDED THAT SUB-SECTION (5) OF SECTION 80 A WAS INTRODUCED BY THE FINANCE ACT, 2009, W.R.E.F. 1/4/2003, WHEREIN IT HAS BEEN PROVIDED AS FOLLOWS:- (5) WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HI S RETURN OF INCOME FOR ANY DEDUCTION U/S. 10A OR SECTION 10AA OR SECTI ON 10B OR SECTION 10BA OR UNDER ANY PROVISION OF THIS CHAPTER UNDER T HE HEAD C- DEDUCTION IN RESPECT OF INCOMES, NO DEDUCTION SHA LL BE ALLOWED TO HIM THEREUNDER. 4. THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION POINTING OUT THAT THE CLAIM FOR DEDUCTION UNDER SECTION 80 H HC WHICH WAS NEITHER MADE IN THE RETURN OF INCOME NOR ANY REVISED RETURN OF INCOME COULD NOT HAVE BEEN DIRECTED TO BE EXAMINED BY THE TRIBUNAL B Y THE AO BECAUSE OF THE PROVISIONS OF SEC.80-A(5) OF THE ACT REFERRED TO AB OVE. THE REVENUE HAS THEREFORE, PRAYED THAT THE ORDER OF THE TRIBUNAL SO ULD BE AMENDED ACCORDINGLY. M.A.NO.458 TO 460/MUM/2010 3 5. WE HAVE HEARD THE SUBMISSIONS OF THE LD. D.R. WH O REITERATED THE STAND OF THE REVENUE IN THE MISCELLANEOUS APPLICATI ON. WE HAVE CONSIDERED HIS SUBMISSIONS. WE FIND THAT THE IN THE PRESENT C ASE THE ORDER OF THE AO WAS PASSED ON 28/12/2006. THE ORDER OF THE CIT(A) WAS PASSED ON 29/8/2007. THE APPEAL WAS FILED BY THE ASSESSEE BE FORE THE TRIBUNAL ON 5/10/2007. PENDING DECISION BY THE TRIBUNAL THE FI NANCE ACT, 2009 BROUGHT IN THE RETROSPECTIVE AMENDMENT BY INSERTING SEC.80-A(5) OF THE ACT. THE TRIBUNAL ULTIMATELY PASSED ITS ORDER ON 30/4/20 10. WHEN THE ORIGINAL APPEAL WAS HEARD THIS CONTENTION WAS NEVER RAISED B Y THE REVENUE. IT IS NOT OPEN TO THE REVENUE TO RAISE A NEW PLEA IN THE FORM A MISCELLANEOUS APPLICATION. THE ORDER OF THE TRIBUNAL HAS BEEN PA SSED ON THE BASIS OF THE SUBMISSIONS MADE BY THE PARTIES AT THE TIME OF HEAR ING. THE ORDER OF THE TRIBUNAL, THEREFORE, DOES NOT SUFFER FROM ANY MISTA KE APPARENT FROM THE FACE OF THE RECORD. BY A NEW ARGUMENT RAISED IN THE FOR M OF A MISCELLANEOUS APPLICATION IT IS NOT OPEN TO THE REVENUE TO CONTEN T THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT ON THE REC ORD. IN SUCH CASES AN APPLICATION UNDER SECTION 254(2) OF THE ACT WILL NO T BE AN APPROPRIATE REMEDY. WE THEREFORE, DISMISS THE MISCELLANEOUS AP PLICATION. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURTH ON 4 TH MAY, 2011. SD/- SD/- (PRAMOD KUMAR) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 4 TH MAY .2011 M.A.NO.458 TO 460/MUM/2010 4 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RJ BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. M.A.NO.458 TO 460/MUM/2010 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 29/4/2011 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 02/05/2011 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER