ITO, Moradabad v. Kumar International,, Moradabad

MA 453/DEL/2010 | 2001-2002
Pronouncement Date: 04-11-2011 | Result: Dismissed

Appeal Details

RSA Number 45320124 RSA 2010
Bench Delhi
Appeal Number MA 453/DEL/2010
Duration Of Justice 1 year(s) 3 month(s) 11 day(s)
Appellant ITO, Moradabad
Respondent Kumar International,, Moradabad
Appeal Type Miscellaneous Application
Pronouncement Date 04-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 04-11-2011
Assessment Year 2001-2002
Appeal Filed On 23-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G (FRIDAY) BEFORE SHRI I.P. BANSAL AND SHRI K.G. BANSAL M.A. NO. 453(DEL)/2010 (ARISING OUT OF ITA NO. 1873(DEL)/2006) ASSESSMENT YEAR: 2001-02 INCOME-TAX OFFICER M/S KUMAR INTERNATIONAL WARD 1(1) MORADABAD. VS. CIVIL LINES MORADABAD. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SALIL MISHRA DR RESPONDENT BY : SHR I PIYUSH KAUSHIK ADVOCATE DATE OF HEARIN G : 04.11.2011 DATE OF PRONOUNC EMENT: 04.11.2011. ORDER PER K.G. BANSAL ; AM IN THIS CASE THE TRIBUNAL HAD PASSED THE ORDER ON 30.05.2008 IN WHICH THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME-TAX MORADABAD ON 21.03.2006 WAS SET ASIDE AND THE ORDER OF THE AO WAS RESTORED. THE REVENUE MOVED AN APPLICATION U/S 254(2) OF TH E ACT ON 23.7.2010 TO THE EFFECT THAT THERE WAS A MISTAKE APPARENT FRO M RECORD IN THE ORDER OF THE TRIBUNAL WHICH MAY BE RECTIFIED. IT HAS BEEN M ENTIONED THAT THE REVISIONARY ORDER WAS PASSED TO WITHDRAW DEDUC TION U/S 80IB GRANTED BY THE AO ON EXPORT INCENTIVES RECEIVED BY THE ASS ESSEE. THIS ISSUE STANDS COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF M.A.NO. 453(DEL)/2010 2 LIBERTY INDIA VS. CIT (2009) 317 ITR 218. IT M AY BE MENTIONED HERE THAT THE REVISIONARY ORDER WAS PASSED BY THE COM MISSIONER OF INCOME-TAX ON 31.03.2006 THE TRIBUNAL HAD PASSED ITS ORDER ON 30.05.2008 AND THE DECISION IN THE CASE OF LIBERTY INDIA (SUPRA) WAS RENDERED BY THE APEX COURT ON 31.08.2009. 2. BEFORE US THE LD. DR REFERRED TO THE DECISIO N IN THE CASE OF LIBERTY INDIA (SUPRA) AND SUBMITTED THAT EVEN THE SUBSE QUENT DECISION OF THE SUPREME COURT FORMS A VALID BASIS FOR RECTIFYI NG A PRE-EXISTING ORDER OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE REFORE THE IMPUGNED ORDER MAY BE RECTIFIED BY TAKING INTO ACCOUNT TH IS DECISION. 2.1 IN REPLY THE LD. COUNSEL REFERRED TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA L TD. (2007) 295 ITR 282. IN THIS DECISION IT HAS BEEN HELD THAT THE PROVISION CONTAINED IN SECTION 80HHC HAS BEEN AMENDED ON 11 OCCASIONS. DIFFERENT VIEWS EXISTED WHEN THE COMMISSIONER PASSED THE REVISIONA RY ORDER. THE MECHANICS OF THE SECTION HAD BECOME SO COMPLICATED OVER THE YEARS THAT SUBSEQUENT AMENDMENT EVEN THOUGH RETROSPECTIVE W OULD NOT BE ATTRACTED. THEREFORE THE LAW AS IT STOOD ON 05.03.1997 BEI NG THE DATE OF REVISIONARY M.A.NO. 453(DEL)/2010 3 ORDER HAD TO BE TAKEN INTO ACCOUNT FOR THE PUR POSE OF EXERCISE OF REVISIONARY POWER U/S 263 OF THE ACT. FURTHER HE REFERRED TO THE DECISION OF THE APEX COURT IN THE CASE OF CIT VS . G.M. MITTAL STAINLESS STEEL (P) LTD. (2003) 263 ITR 255. IN THAT CA SE THE AO ON THE BASIS OF THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DUSAD INDUSTRIES (1986) 152 ITR 784 (M.P) HELD THA T THE POWER SUBSIDY RECEIVED BY THE ASSESSEE WAS A CAPITAL RECEIPT. T HE COMMISSIONER REVISED THIS ORDER AND WITHOUT ASSIGNING ANY REASON HELD THAT THE SUBSIDY WAS REVENUE RECEIPT. SUBSEQUENTLY THE DECISION OF HONBLE SUPREME COURT WAS RECEIVED IN THE CASE OF SAHNEY STEEL & PRESS WORKS LTD. VS. CIT (1997) 228 ITR 253 IN WHICH IT WAS HELD THAT THE POWER SUBSIDY IS THE REVENUE RECEIPT. THE HONBLE COURT HELD THAT THE COMMISSIONER OF INCOME-TAX DID NOT ASSIGN ANY REASON FOR CO MING TO THE CONCLUSION THAT THE ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF REVENUE. THE ORDER OF THE AO WAS BASED ON THE DECISION OF J URISDICTIONAL HIGH COURT. THE DECISION OF THE SUPREME COURT WAS RECEIVED AFTER PASSING REVISIONARY ORDER. IF AT THE TIME WHEN THE POWE R U/S 263 WAS EXERCISED THE DECISION OF THE JURISDICTIONAL HIGH COURT HAD NOT BEEN SET ASIDE BY THIS COURT OR AT LEAST HAD NOT BEEN APPEALED FR OM IT WOULD NOT BE OPEN TO THE COMMISSIONER TO HAVE PROCEEDED ON THE BASIS THAT THE ORDER OF THE M.A.NO. 453(DEL)/2010 4 HIGH COURT WAS ERRONEOUS. ACCORDINGLY THE APPEA L OF THE REVENUE WAS DISMISSED. THUS THE SUBMISSION OF THE LD. COUNSE L IS THAT AT THE TIME OF PASSING THE REVISIONARY ORDER THE ISSUE WAS CO NTENTIOUS AS DIFFERENT HIGH COURTS HAD INTERPRETED THE QUESTION DIFFERENTLY. THERE WAS NO DECISION OF THE JURISDICTIONAL HIGH COURT AVAILABLE IN THE M ATTER. THUS AT THE RELEVANT POINT OF TIME TWO VIEWS WERE POSSIBLE. ACCORDING LY THE TRIBUNAL RIGHTLY CAME TO THE CONCLUSION THAT THE REVISIONARY ORDER COULD NOT HAVE BEEN PASSED TO DENY THE BENEFIT TO THE ASSESSEE. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. IT IS TRUE THAT A SUBSEQUENT DECISIO N OF THE JURISDICTIONAL HIGH COURT OF THE APEX COURT FORMS A VALID BASIS FOR RECTIFICATION OF AN ORDER U/S 254(2) OF THE ACT. HOWEVER THIS PROPOSITIO N OF LAW IS APPLICABLE IN RESPECT OF APPEAL ARISING FROM THE ASSESSMENT OR DER. WE ARE NOT DEALING WITH AN APPEAL ARISING OUT OF AN ASSESSMENT ORDE R. WE ARE DEALING WITH AN APPEAL ARISING OUT OF REVISIONARY ORDER. THIS ORDER WAS PASSED ON 21.03.2006. ON THAT DATE DECISIONS OF GUJARAT HIGH COURT AND DELHI HIGH COURT WERE IN FAVOUR OF THE ASSESSEE AND TH E DECISION OF PUNJAB & HARYANA HIGH COURT WAS IN FAVOUR OF THE REVENUE. THESE CASES HAVE BEEN NARRATED IN THE IMPUGNED ORDER. THERE WAS NO D ECISION AVAILABLE FROM M.A.NO. 453(DEL)/2010 5 THE JURISDICTIONAL HIGH COURT. THEREFORE THE PO SITION OF LAW WAS CONTENTIOUS IN THE JURISDICTION OF ALLAHABAD HIGH COURT. THE AO FOLLOWED THE DECISION OF DELHI & GUJARAT HIGH COURTS. T HE DECISION OF THE SUPREME COURT IN THE CASE OF LIBERTY INDIA (SU PRA) WAS RENDERED ON 31.08.2009 I.E. THREE YEARS AND FIVE MONTHS AFTER PASSING THE REVISIONARY ORDER. THIS DECISION CANNOT BE THE BASIS FOR R EVISING THE ORDER OF TRIBUNAL IN THE LIGHT OF DECISION IN THE CASE OF G.M. MITTAL STAINLESS STEEL (P) LTD. AND MAX INDIA LTD. (SUPRA). IT IS HELD ACCORDINGLY. 4. IN THE RESULT THE APPLICATION IS DISMISSED. SD/- SD/- (I.P. BANSAL) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- 1. KUMAR INTERNATIONAL MORADABAD. 2. ITO WARD 1(1) MORADABAD. 3. CIT 4. CIT(A) 5. THE DR ITAT NEW DELHI. ASSISTANT REGISTRAR.