M/s.Sea Foods Park (India) Ltd, Alappuzha V. The DCIT, Cochin

MA 74/COCH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2291 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: VEDANGA R PRABHU
• Section: 2

Judgement Text

1 MA NO.74 /COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) M.A. 74/COCH/2014 (ARISING OUT OF I.T.A NO. 762/COCH/2013) (ASSESSMENT YEAR 2008-09) SEA FOOD PARK INDIA LIMITED VS DY.CIT, CIR.4(1) XIII, 99A, KELTRON ROAD, AROOR KOCHI ALAPPUZHA 688 535 PAN : AAFCS2622A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI VEDANGA R PRABHU RESPONDENT BY : SMT. LATHA V KUMAR DATE OF HEARING : 19-09-2014 DATE OF PRONOUNCEMENT : 24-09-2014 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS APPLI CATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 31-03-2014. 2. SHRI VEDANGA R PRABHU, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL BY PLACING RELIANCE ON THE JUDGMENT OF THE KERALA HIGH COURT WHICH WAS CITED BY THE LD.DR FOR THE ASSESSEE DURING THE COURSE OF HEARING IN M/S PRUDENTIAL LOGISTICS A ND TRANSPORTS VS ITO IN I.T.A. NO.1 OF 2014 JUDGMENT DATED 123-01-2014 FOUN D THAT THE SECOND 2 MA NO.74 /COCH/2014 PROVISO TO SECTION 40(A)(IA) WHICH WAS INTRODUCED B Y FINANCE ACT, 2012 WITH EFFECT FROM 01-04-2013 IS PROSPECTIVE IN OPERA TION. REFERRING TO THE JUDGMENT OF THE KERALA HIGH COURT IN THE CASE OF M/ S PRUDENTIAL LOGISTICS AND TRANSPORTS (SUPRA), THE LD.REPRESENTATIVE SUBMI TTED THAT THE FACTS OF THAT CASE IS TOTALLY DIFFERENT FROM THAT OF THE ASS ESSEE. ACCORDING TO THE LD.REPRESENTATIVE, EARLIER THE ASSESSEE IN THE CASE BEFORE THE HIGH COURT CLAIMED THE PAYMENT AS LOAN AND SUBSEQUENTLY CLAIME D THE SAME AS PAYMENT OF LORRY HIRE CHARGES. IN THOSE FACTS AND CIRCUMSTANCES, THE KERALA HIGH COURT FOUND THAT THE SECOND PROVISO TO SECTION 40(A)(IA) IS NOT APPLICABLE. ACCORDING TO THE LD.REPRESENTTIVE, THE OTHER BENCHES OF THIS TRIBUNAL HAS TAKEN A VIEW THAT SECOND PROVISO TO SE CTION 40(A)(IA) IS APPLICABLE RETROSPECTIVELY. WE HEARD SMT. LATHA V KUMAR, THE LD.DR ALSO. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. NO DOUBT , IN THE CASE BEFORE THE KERALA HIGH COURT IN M/S PRUDENTIAL LOGISTICS AND T RANSPORTS (SUPRA), THE ASSESSEE ORIGINALLY CLAIMED THE PAYMENT AS LOAN AND THEREAFTER CLAIMED THE SAME AS HIRE CHARGES. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER SECOND PROVISO TO SECTION 40(A)(IA) WHICH W AS INTRODUCED BY FINANCE ACT, 2012 WITH EFFECT FROM 01-04-2013 IS RE TROSPECTIVE IN OPERATION OR PROSPECTIVE IN OPERATION? THE KERALA HIGH COURT SPECIFICALLY FOUND THAT THIS SECOND PROVISO TO SECTION 40(A)(IA) IS NOT APP LICABLE TO EARLIER 3 MA NO.74 /COCH/2014 ASSESSMENT YEARS. THEREFORE, WHATEVER MAY BE THE R EASONS, ONCE THE JURISDICTIONAL HIGH COURT FOUND THAT SECOND PROVISO TO SECTION 40(A)(IA) IS NOT APPLICABLE TO EARLIER YEARS, THIS TRIBUNAL MAY NOT BE ABLE TO GO BEYOND THE OBSERVATIONS MADE BY THE KERALA HIGH COURT. TH E VIEW TAKEN BY THE OTHER BENCHES OF THIS TRIBUNAL MAY NOT BE A REASON TO GO BEYOND THE OBSERVATIONS MADE BY THE KERALA HIGH COURT. THEREF ORE, THERE IS NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH SEPTEMBER, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 24 TH SEPTEMBER, 2014 PK/- COPY TO: 1. M/S SEA FOOD PARK (INDIA) LTD, AROOR, ALAPPUZHA DIST 2. THE DY.CIT, CIR.4(1), KOCHI 3. THE COMMISSIONER OF INCOME-TAX, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-II, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH