ITO 4(2)(3), V. SHRIYAM BROKING INTERMEDIARY LTD,

MA 79/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3285 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHINAND DUBEY

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI N.K.BILLAIYA, (AM) AND SANJAY GARG, (JM) . . , , MISC. APPLICA TION NO . 79 /MUM/2015 ARISING OUT OF I.T.A. NO .4391 /MUM/20 1 2 ( / ASSESSMENT YEAR : 20 09 - 10 ) I NCOME T AX O FFICER - 4(2)(3), ROOM NO.647, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020 / VS. M/S. SHRIYAM BROKING INTERMEDIARY LIMITED , 712 - 713, TU LSIANI CHAMBERS, 212, NARIMAN POINT, MUMBAI - 400 021 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : PAN: - AAACS 8108 E / APPLICANT BY SHRI SACHINAND DUBEY / ASSES SEE BY SHRI VIJAY MEHTA / DATE OF HEARING : 3.7. 2015 / DATE OF PRONOUNCEMENT : 3 .7. 2015 / O R D E R PER SANJAY GARG, JM : THE PRESENT MISCELLANEOUS PETITION HAS BEEN PREFE RRED BY THE REVENUE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT) PLEADING THAT THE FOLLOWING MISTAKES APPARENT ON RECORD OF THE ORDER DATED 17.10.2014 PASSED BY THE TRIBUNAL IN ITA NO.4391/MUM/2012 RELEVANT TO THE ASSESSMENT YEAR 2009 - 10 HAVE BEEN CREPT: 1. THE DECISION OF THE HON'BLE ITAT IN THE ASSESSEE'S OWN CASE AS RELIED ON BY THE ITAT FOR A.Y. 2008 - 09 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND APPEAL HAS BEEN FILED BEFORE THE HON'BLE HIGH COURT. 2. THE DECISION OF THE HON'BLE ITAT I S CONTRARY TO THE ORDER OF JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE M A NO. 79 /M/2015 2 MFG. CO. LTD.(ITA NO. 636/2010) AND THE DECISION OF THE SPECIAL BENCH OF ITAT IN M/S. DAGA CAPITAL MANAGEMENT PVT. LTD. (2008) REPORTED IN 26 SOT 603, ACCORDING TO WHICH THE MATTER WAS SETTLED IN REVENUE'S FAVOUR. IN VIEW OF THIS FACT, THE ORDER IS REQUIRED TO BE RECTIFIED 2. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORD AND THE ORDER DATED 17.10.2014 OF THIS TRIBUNAL (SUPRA). A PERUSAL OF THE ABOVE STATED ALLEGED MISTAKES POINTED OUT BY THE REVENUE IN ITS APPLICATION REVEALS THAT THE REVENUE THAT THE SAME DOES NOT FALL WITHIN THE DEFINITION OR PURVIEW OF ANY MISTAKE APPARENT ON RECORD. IT HAS BEEN STATED IN THE APPLICATION THAT THE ORDER OF THE TRIBUNAL IS NOT ACCEPTABLE TO THE ASSESSING OFFICER BECAUSE THE DEPARTMENT HAS FILED AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PREVIOUS YEAR I.E. AY 2008 - 09. THIS ITSELF NEITHER CAN BE SAID TO BE A MISTAKE APPARENT ON THE FACE OF RECORD NOR IN ANY WAY EMPOWER S THE AO TO REFUSE TO ACCEPT THE ORDER OF TRIBUNAL. IN RELATION TO THE ALLEGED SECOND MISTAKE IT HAS BEEN MENTIONED THAT THE DECISION OF THE TRIBUNAL DATED 17.10.2014 (SUPRA) IS CONTRARY TO THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG.CO.LTD.(ITA NO.636/2010) AND THE DECISION OF THE SPECIAL BENCH OF ITAT IN M/S. DAGA CAPITAL MANAGEMENT PVT. LTD(SUPRA). THE SAID PLEADINGS ITSELF CANNOT BE SAID TO BE A MISTAKE APPARENT ON RECORD. DURING THE COURSE OF HEARING, WE HAVE SPECIFICALLY ASKED THE LD. DR TO EXPLAIN AS TO HOW AND IN WHAT RESPECT OF THE MATTER , THE ORDER OF THE TRIBUNAL DATED 17.10.2014 IS CONTRARY TO THE DECISION OF HON BLE BOMBAY HIGH COURT (SUPRA) AND THAT OF DECISION OF SPECIAL BENCH OF THIS TRIBUNAL (SUPRA). THE LD. DR HAS FAILED TO EXPLAIN IN THIS RESPECT. WE HAVE ALSO GONE THROUGH THE ORDER DATED 17.10.2014 (SUPRA) AND WE DO NOT FIND THAT THERE IS ANY CONTRARY OBSERVATIONS MADE BY THE TRIBUNAL TO THE DECISION OF THE HONB LE HIGH COURT AND THAT OF SPECIAL BENCH OF THE TRIBUNAL. RATHER, THE TRIBUNAL HAS PASSED THE DECISION WHILE RELYING ON THE DECISION OF HONBLE HIGH COURT IN THE CASE OF CIT V/S RELIANCE UTILITIES AND POWER LTD. [2009] 313 ITR 340 (BOM) WHICH HAS BEEN FUR THER FOLLOWED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S M A NO. 79 /M/2015 3 HDFC BANK LTD. [2014] 366 ITR 505 (BOM). FURTHER, WE FIND THAT THE DECISION OF THE TRIBUNAL IS ALSO IN ACCOR D ANCE WITH THE PROPOSITION OF LAW AS LAID DOWN BY THE HONBLE BOMBAY HIGH CO URT TIN THE CASE OF GODREJ & BOYCE MFG. CO. LTD.(SUPRA). EVEN OTHERWISE, IF THE D EPARTMENT HAS ANY GRIEVANCE AGAINST THE TRIBUNAL ORDER, THE PROPER COURSE IS TO FILE APPEAL BEFORE NEXT APPELLATE AUTHORITY/HIGH COURT . WE MAY POINT OUT HERE THAT EVEN OTHERWI SE THE AO IS SUPPOSE TO HAVE GIVE EFFECT TO THE ORDER OF THE TRIBUNAL AS HE HAS NO JURISDICTION OR AUTHORITY UNDER THE ACT TO SAY THAT THE ORDER OF THE TRIBUNAL IS NOT ACCEPTABLE TO HIM. THIS ACT OF THE AO SPEAKS OF NON - COMPLIANCE OF THE JUDICIAL DISC IPLINE WHICH MAY EVEN INVITE CONTEMPT OF COURT PROCEEDINGS. WE MAY FURTHER OBSERVE THAT T HE HON'BLE SUPREME COURT IN THE CASE OF 'UOI AND OTHERS VS. KAMALAKSHI FINANCE CORPORATION' AIR 1992 SC 711 HAS CATEGORICALLY HELD THAT THE PRINCIPLES OF JUDICIAL DISC IPLINE REQUIRE THAT THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES SHOULD BE FOLLOWED UNRESERVE D LY BY THE SUBORDINATE AU T H O RITIES. THE H O N'BLE SUPREME COURT HAS FURTHER HELD THAT THE MERE FACT THAT THE ORDER OF THE APPELLATE AUTHORITY IS NOT 'ACCEPTABLE' T O THE DEPARTMENT - IN ITSELF IS AN O B JECTIONABLE PHRASE AND IS NOT A GROUN D FOR NOT FOLLOWING THE SAME UNLESS ITS OPERATION HAS BEEN SUSPENDED BY A COMPETENT COURT. 3 . THE HON'BLE BOMBAY HIGH COURT IN A VERY RECENT CASE ' CI T VS. SAIRANG D EVELOPERS AND PRO M OTE R S P VT. LTD.' IN ITA N O .2 60 3 OF 20 11 DECIDED ON 28.04.14 HAS STRONGLY DISCOURAGED THE ATTITUDE OF THE AUTHORITIES IN FILING THE APPEALS WITHOUT APPLICATION OF MIND RESULTING IN THE PENDENCY OF THE FRIVOLOUS APPEALS BEFORE THE HON'BLE HIGH COURT. THE HO N'BLE HIGH COURT HAS STRONG L Y DISAPPROVED THE IRRESPONSIBLE ATTITUDE OF THE OFFICERS IN NOT APPLYING THEIR MIND WHILE APPROVING FOR THE FILING OF THE APPEALS, WHICH BENEFITS NO ONE AND RATHER DEFEATS LARGER PUBLIC INTEREST . 4 . THE PRESENT CASE IS ALSO AN EXAMPLE OF NON APPLICATION OF MIND WHILE D RAFTING THE APPLICATION AND APPROVING THE FILING OF THE ABOVE APPLICATION BY THE CONCERNED OFFICIALS. THERE IS NO MERIT IN THE APPLICATION, AND THE SAME IS ACCORDINGLY DISMISSED. M A NO. 79 /M/2015 4 5 . IN THE RESULT , THE MISCE. APP LICATION IS DISMISSED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 3 RD JULY, 2015. 3 RD JULY, 2015 SD SD ( N.K.BILLAIYA / . . ) ( SANJAY GARG / ) ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ MUMBAI: 6TH JULY, 2015. . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI