ASST CIT 10(1), V. INDIAN OIL BLENDING LTD,

MA 62/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9150 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2002-2003
• Appeal Filed On: 06-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V KRISHNA MURTHY
• Assessee Lawyers: R MURLIDHAR
• Keywords: Depreciation
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, I, MUMBAI BEFORE S/SHRI DINESH KUMAR AGARWAL, JM AND D. KARUNAKARA RAO, AM M.A. NO. 62/MUM/2012 ARISING OUT OF ITA NO. 2830/MUM/2007 (ASSESSMENT YEAR 2002-03) THE ASSTT. COMMISSIONER OF INCOME-TAX 10(1), ROOM NO. 455, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400 020. M/S INDIAN OIL BLENDING LTD., (NOW AMALGAMATED WITH INDIAN OIL CORPN.) 254-C, DR. A.B. ROAD, PRABHADEVI, MUMBAI 400 025. PAN: AAACJ 2987 D APPLICANT V/S RESPONDENT DATE OF HEARING : 21- 09-2012 DATE OF PRONOUNCEMENT : 28-09-201 2 APPLICANT BY : SH RI V. KRISHNAMURTHY RESPONDENT BY : SHRI R. MURL IDHAR O R D E R PER DINESH KUMAR AGARWAL (JM) THIS MISC. APPLICATION FILED BY THE REVENUE IS DIRE CTED AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 2830/MUM/2007 FOR THE A.Y. 2002-03 DTD. 30-6-2011. 2. IN THE MISC. APPLICATION DTD. NIL IT WAS SUBMI TTED BY THE A.O. THAT THE DECISION OF THE THIRD MEMBER REPRESENTS SOLITARY EX PRESSION OF YET ANOTHER VIEW, DIFFERENT FROM THE VIEWS TAKEN BY MEMBERS OF THE EARLIER DIVISION BENCH AND THAT UNDER THESE CIRCUMSTANCES, HE OUGHT TO HAV E REFERRED THE MATTER TO THE HONBLE PRESIDENT TO CONSTITUTE A LARGER BENCH FOR RESOLVING THE DIFFERENCE MA 62/MUM/2012 2 OF OPINION AND ARRIVING AT THE MAJORITY DECISION. FURTHER, THE VIEW TAKEN IN THE CAPTIONED APPEAL IS ALSO CONTRARY TO THE LEGAL POSITION LAID DOWN IN THE FOLLOWING BINDING JUDICIAL PRECEDENTS: (I) JUDGMENT OF THE HONBLE SUPREME COURT OF INDIA DTD. 05-01-2011 IN THE CASE OF INDO RAMA SYNTHETICS (I) LTD. V. CIT (II) ALFA LAVAL INDIA LTD. V. DCIT 186 CTR (BOM) 390 (III) INDIAN PLYWOOD MANFG. CO. LTD. V. DCIT 100 ITD 318 (MUM)(SB). 3. AT THE TIME OF HEARING, THE LD. D.R. SUBMITS THA T FOR THE REASONS AS MENTIONED IN THE MISC. APPLICATION, THE ORDER PASSE D BY THE TRIBUNAL BE RE- CALLED/MODIFIED. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE SUBMITS THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFO RE, THE ORDER PASSED BY THE TRIBUNAL NEEDS NO RECTIFICATION/MODIFICATION. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IT WAS CONTENDED BY THE REVENUE THAT THE VIEW TAKEN BY THE THIRD MEMBER IS DIFFERENT FROM THE VIEWS TAKEN BY THE CO-ORDINATE BENCH OF THE TRIBUNA L. HOWEVER, WE FIND THAT THIRD MEMBER AFTER CONSIDERING THE SUBMISSIONS OF B OTH THE SIDES, MATERIAL AVAILABLE ON RECORD AND THE VARIOUS DECISIONS INCLU DING THE DECISION OF THE HONBLE DELHI HIGH COURT IN INDO RAMA SYNTHETICS (I ) LTD. VS. CIT (2010) 320 ITR 340 (DEL), AFFIRMED BY THE HONBLE SUPREME COUR T VIDE JUDGMENT DTD. 5-1- 2011 ARISING OUT OF SLP NO. 35133 OF 2009 HAS HELD VIDE PARA 20 OF THE ORDER DTD. 30-1-2011 AS UNDER:- .IN MY CONSIDERED OPINION, THERE IS NO BAR WITH REGARD TO THE CLAIM OF DEDUCTION FROM THE BOOK PROFIT IN SO FAR AS EXCESS DEPRECIATION REFERABLE TO THE PERIOD PRIOR TO 1-4-1997 IS CONCERNED. IN THE LIGH T OF THE DECISION OF THE APEX MA 62/MUM/2012 3 COURT IN THE CASE OF APOLLO TYRES, ON A LITERAL INT ERPRETATION OF THE PROVISIONS OF SECTION 115JB OF THE ACT, I AM OF THE FIRM VIEW THA T REDUCTION FROM THE BOOK PROFIT IS PERMISSIBLE WITH REFERENCE TO THE DEPRECI ATION PERTAINING TO THE PERIOD PRIOR TO 31-3-1996, IN THE EVENT OF WRITING BACK, U PON CREDITING THE SAME TO THE P&L ACCOUNT. THE QUESTION AS PLACED BEFORE ME IS A NSWERED ACCORDINGLY. 6. AS REGARDS THE OTHER DECISIONS IN ALFA LAVAL IND IA LTD. V. DCIT (2003)186 CTR (BOM) 390 : (2004) 266 ITR 418 (BOM) AND INDIAN PLYWOOD MFG. CO. LTD. V. DCIT (2006) 100 ITD 318 (MUM) (SB) CITED IN THE ABOVE MISC. APPLICATION, WE FIND THAT THE REVENUE HAS PLACED NO MATERIAL ON RECORD TO SHOW THAT AT THE TIME OF HEARING THE SAID DECISIONS HAVE BEEN RELIED ON BUT NOT CONSIDERED BY THE TRIBUNAL. EVEN OTHERWISE, BOTH THE ABOVE DECISI ONS ARE NOT ON THE INTERPRETATION/APPLICABILITY OF PROVISIONS OF SECTI ON 115JB OF THE ACT. 7. AS REGARDS THE OTHER CONTENTION OF THE REVENUE T HAT THE MATTER OUGHT TO HAVE BEEN REFERRED TO THE HONBLE PRESIDENT OF ITAT , WE FIND THAT NEITHER SUCH PLEA WAS NOT TAKEN BY THE REVENUE DURING THE COURSE OF HEARING OF THE APPEAL NOR THERE IS A PROVISION U/S 254(2) OF THE ACT TO CONSIDER SUCH PLEA AT THIS STAGE. 8. IN THIS VIEW OF THE MATTER THE MISC. APPLICATION FILED BY THE REVENUE IS DEVOID OF ANY MERIT AND THE SAME IS, THEREFORE, REJ ECTED. 9. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28-9-2012. SD/- SD/- (D. KARUNAKARA RAO) (DINESH KUMAR AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED MA 62/MUM/2012 4 RK.: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT , CONCERNED, MUMBAI 4. CIT(A) CONCERNED, MUMBAI 5. DR D BENCH 6. GUARD FILE. BY ORDER ASSTT.REGISTRAR, I ITAT, MUMBAI