S.K. INTERNATIONAL EXPORT CO., V. ASST CIT 18(1),

MA 98/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3654 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 23-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI SANJAY ARORA , AM . / MA NO. 98/MUM/2015 (ARISING OUT OF ITA NO. 628/MUM/2011 ) ( / ASSESSMENT YEARS: 2007 - 08) ASST. CIT, CIRCLE 18(1), 1 ST FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400 012 / VS. S. K. INTERNATIONAL (EXPORT) CO., A - 2, UNIT NO. 79, SHAH & NAHAR INDL. ESTATE, S. J. ROAD, MUMBAI - 400 013 ./ ./ PAN /GIR NO. AAAFS 5529 G (APPLICANT) : (RESPONDENT) APPLICANT BY : SHRI K. GOPAL RESPONDENT BY : SHRI VACHASPATI TRIPATHI / DATE OF HEARING : 09.10.2015 / DATE OF PRONOUNCEMENT : 09.10.2015 / O R D E R PE R SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE U/S. 254( 2 ) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN RESPECT OF AN ORDER U/S.254(1) BY THE APPELLATE TRIBUNAL , DISPOSING ITS CAPTIONED APPEAL FOR ASSESSMENT YEAR (A.Y.) 2007 - 08 VIDE ORDER DATED 13.01.2015 . 2. THE ASSESSEE PER ITS INSTANT APPLICATION SEEKS AN AMENDMENT TO THE IMPUGNED ORDER IN - AS - MUCH AS IT HAD, ACTING THROUGH ITS AUTHORIZED REPRESENTATIVE (AR), NOT MADE ANY CONCESSION F OR NOT REFERRING THE MATTER TO THE LARGER BENCH OF THE TRIBUNAL , 2 M A NO. 98/MUM/2015 (A.Y. 2007 - 08) ASST. CIT VS. S. K. INTERNATIONAL (EXPORT) CO. AS STATED BY IT AT PARA 6.2 OF T HE IMPUGNED ORDER ( DATED 13.01.2015 ) , WHICH STANDS ALSO REPRODUCED IN ITS APPLICATION. THE LD. AR, THE SAME COUNSEL WHO ARGUED THE ASSESSEES APPEAL BEFORE THE TRIBUNAL, WOULD SUBMIT THAT HE MAK ES A DEFINITE STATEMENT AT BAR TO HAVING NOT MADE ANY SUCH CONCESSION ; RATHER, AND EVEN AS STATED AT PARA 4 OF THE APPLICATION, WAS AGREEABLE TO A REFERENCE TO THE LARGER BENCH BEING MADE BY THE BENCH. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE RELEVANT ISSUE, DE SI GNATED AS I SSUE # 2 BY THE TRIBUNAL , STAND S DELINEATED BY IT AT PARA 5 OF THE IMPUGNED ORDER, WHICH ALSO STATES THE RESPECTIVE CASES OF BOTH THE SIDES, INCLUDING THE RELIANCE BY EITHER SIDE ON SEVERAL DECISIONS IN T HEIR FAVOUR. THE ANALYSIS THEREOF AND THE ADJUDICATION BY THE TRIBUNAL IS PER PARA 6 (PGS. 4 - 8) OF ITS ORDER. VIDE PARA 6.1, THE TRIBUNAL NOTES IF THERE IS ANY BINDING DECISION ADVANCED OR CITED BY EITHER PARTY BEFORE I T , FINDING IT AS NOT SO. PARA 6.2 NOT ES THE POSITION THAT OBTAINS IN VIEW OF THE CONFLICTING DECISIONS BY THE CO - ORDINATE B ENCHES CITED BEFORE IT, AS WELL AS ONE DECISION EACH BY THE HONBLE HIGH COURT BY EITHER SIDE. THE HONBLE HIGH COURTS, IT N OTE S, BEING AN APPELLATE FORUM HIGHER THAN THE APPELLATE TRIBUNAL, REFER ENCE OF THE MATTER TO ITS LARGER B ENCH WOULD, IN ITS VIEW, SERVE NO USEFUL PURPOSE. TOWARD THIS IT REFERS TO THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. THANE ELECTRICITY SUPPLY LTD. [1994] 206 ITR 727 (BOM). A DISCUSSION ON MERITS, WHICH THUS THE TRIBUNAL IS OBLIGE D TO UNDERTAKE, ENSUE S VIDE PARA 6.3, CULMINATING IN ITS DECISION AT PARA 6.4 , WHICH AGAIN REFERS TO THE R ULES OF INTERPRETATION OF STATUTES, BESIDES DISCUSSING THE DECISION IN THE CASE O F CIT VS. MOTOROLA INDIA ELECTRONICS (P.) LTD. BY THE HONBLE KARNATAKA HIGH COURT (SINCE REPORTED AT [2014] 46 TAXMANN.COM 167 (KAR) ) , RELIED UPON BY THE ASSESSEE. THE ASSESSEES CASE IS THAT IT IS PREJUDICE D BY THE OBSERVATION BY THE TRIBUNAL AT PARA 6.2 OF ITS ORDER, REPRODUCED AS UNDER, QUA A REFERENCE TO A LARGER BENCH HAVING BEEN DENIED BY THE PARTIES, OR AT LEAST THE ASSESSEE. THIS STATEMENT, NOT BASED ON FACT, 3 M A NO. 98/MUM/2015 (A.Y. 2007 - 08) ASST. CIT VS. S. K. INTERNATIONAL (EXPORT) CO. PREJUDICES THE ASSESSEE IN - AS - MUCH AS IN ITS VIEW THE MATTER OUGHT TO HAVE BEEN REFERRED B Y THE TRIBUNAL TO ITS LARGER B ENCH: 6.2 THE SECOND QUESTION BEFORE US IS IF THE MATTER, IN VIEW OF THE CONFLICTING AND DIFFERING VIEWS BY THE DIFFERENT COURTS AND TRIBUNAL, OUGHT TO BE REFERRED BY US TO A LARGER BENCH, SO AS TO CONFORM TO THE PRINCIPLE O F JUDICIAL PROPRIETARY. TOWARD THIS, WE OBSERVE THAT BOTH THE PARTIES HAVE RELIED UPON A DECISION/S EACH BY THE HONBLE HIGH COURT. THE SAME, BEING AN APPELLATE FORUM HIGHER IN JUDICIAL HIERARCHY THAN THE APPELLATE TRIBUNAL, NO USEFUL PURPOSE WOULD BE SERV ED BY REFERRING THE MATTER TO A LARGER BENCH OF THE TRIBUNAL, EVEN AS THE DECISION BY THE NON - JURISDICTIONAL HIGH COURT IS PERSUASIVE AND NOT BINDING ON THIS TRIBUNAL (REFER: CIT V. THANE ELECTRICITY SUPPLY LTD . [1994] 206 ITR 727 (BOM.) ). IN FACT, THIS SP ECIFIC PROPOSITION, I.E., OF REFERENCE TO THE LARGER BENCH OF THE TRIBUNAL, WAS SPECIFICALLY ALSO PUT TO THE PARTIES DURING HEARING, ONLY TO BE DECLINED BY THEM. WE MAY HERE CLARIFY THAT IN STATING ., ONLY TO BE DECL INED BY THEM. IN THE LAST SENTENC E OF PARA 6.2, THE TRIBUNAL ONLY ADVERTS TO THE REFERENCE TO THE LARGER BENCH BY THE PARTIES THEMSELVES, AND NOT BY THE TRIBUNAL , TO WHICH THEY CANNOT POSSIBLY OBJECT . AS REGARDS SUCH REFERENCE BY THE TRIBUNAL, THIS ASPECT OF THE MATTER STANDS SPECIFICALLY CONSIDERED BY IT ON MERITS AT PARA 6.2 OF ITS ORDER. A DECISION BY THE LARGER ( S PECIAL ) B ENCH OF THE TRIBUNAL WOULD YET ONLY BE BY A COURT SUBORDINATE TO THE HON'BLE HIGH COURT AND , THUS, IN VIEW OF THE CONFLICTING DECISION S BY THE HON'BLE HIGH COURT, OF LITTLE CONSEQUENCE. THAT IS, DECISION S BY A HIGHER APPELLATE FORUM BEING ALREADY AVAILABLE, IT WAS NOT CONSIDERED PROPER TO REFER THE MATTER TO A LARGER BENCH OF THIS TRIBUNAL. THIS EXPLAINS THE NON - REFERENCE THERE TO ; THE DECISIONS IN FAVOUR OF THE REVENU E BEING IN FACT RENDERED FOLLOWING THE DECISION S BY THE APEX COURT, AS OBSERVED AT PARA 5 OF THE IMPUGNED O RDER. THE COURSE, IN VIEW OF THE CONFLICTING DECISIONS, NONE OF WHICH IS BINDING , BEING BY NON - JURISDICTIONAL HIGH COURTS , AS IS WELL SETTLED, IS TO DECIDE FOLLOWING WHAT APPEALS TO I T S JUDICIAL C ONSCIENCE , WHICH IS WHAT THE TRIBUNAL DOES, ALSO DISCUSSING THE DECISION BY THE HONBLE KARNATAKA HIGH COURT OF MOTOROLA INDIA ELECTRONICS (P.) LTD. (SUPRA), FINDING IT AS DISTINGUISHABLE AND, RATHER, SUPPORT IVE O F THE DECISION BY THE TRIBUNAL (REFER PARA 6.3 OF THE ORDER) . 4 M A NO. 98/MUM/2015 (A.Y. 2007 - 08) ASST. CIT VS. S. K. INTERNATIONAL (EXPORT) CO. WE MAY THUS CLARIFY THAT THE PARTIES DID NOT OBJECT TO A REFERENCE, WHERE SO DEEMED PROPER BY IT , TO ITS LARGER BENCH BY THE TRIBUNAL, AND NOT DOING SO WAS A RESULT OF A C ONSCIOUS DECISIO N BY THE TRIBUNAL ITSELF. THE TRIBUNAL , W HEN IT R EFER S TO THE DECL INE BY THE PARTIES FOR SUCH A REFERENCE, IS ONLY THAT BY THE PARTIES THEMSELVES. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS DISPOSED OF IN THE ABOVE TERMS. ORDER PRON OUNCED IN THE OPEN COURT ON OCTOBER 09 , 201 5 SD/ - SD/ - ( SHAILENDER KUMAR YADAV ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 09 . 10 .201 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI