Bhavya Construction Co. v. Asst. Commissioner of Income-tax, Circle-21(1), Mumbai & Anr
[Citation -2020-LL-0130-24]

Citation 2020-LL-0130-24
Appellant Name Bhavya Construction Co.
Respondent Name Asst. Commissioner of Income-tax, Circle-21(1), Mumbai & Anr.
Court HIGH COURT OF BOMBAY
Relevant Act Income-tax
Date of Order 30/01/2020
Assessment Year 2006-07
Judgment View Judgment
Keyword Tags principles of natural justice • retrospective operation
Bot Summary: 3 The Appeal has been preferred by the Appellant on the following questions stated to be substantial questions of law : Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal is perverse inasmuch as it holds that the projects of the Appellant were approved much before 1 April 2004 without adjudicating Ground Nos.1 and 2 as raised by the Appellant on merit. Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal is perverse inasmuch as it does not consider the ratios laid down in the case laws of the co-ordinate benches of the Income Borey 2/6 spb/ 4.1itxa1148-17.doc Tax Appellate Tribunal, Mumbai against the doctrine of stare decisis. Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal is perverse inasmuch as it violates the principles of natural justice by referring to and relying upon numerous case laws that were not relied upon by the Revenue during the course of the hearing and hence the Appellant was given no opportunity to rebut or distinguish the same. The basic grievance of the Appellant is that the impugned order of the Tribunal has been passed in breach of principles of natural justice. The second reason is that the Tribunal did not deal with the decisions relied upon by the Appellant in support of its case. 6 Dr. Shivaram, learned counsel, has taken us through the impugned order and submitted that the Tribunal has referred to more than 50 judgments of Borey 4/6 spb/ 4.1itxa1148-17.doc various courts; not relied upon either by the assessee or by the Revenue, to the great prejudice of the assessee. 10 Accordingly, impugned order dated 09.12.2016 passed by the Tribunal in ITA No. 4389/Mum/2014 for the assessment year 2006-07 is set aside and the matter is remanded back to the Tribunal for fresh hearing and decision.


spb/ 4.1itxa1148-17.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1148 OF 2017 Bhavya Construction Co. Appellant. V/s. Asst. Commissioner of Income Tax Circle 21(1), Mumbai & Anr. Respondents. Dr. K. Shivaram, Advocate a/w. Ms. Neelam Jadhav, Advocate for Appellant. Mr. Sham Walve, Advocate a/w. Mr. Pritesh Chatterjee for Respondents. CORAM : UJJAL BHUYAN AND MILIND N. JADHAV,JJ. DATE : JANUARY 30, 2020. PC : 1 Heard Dr. K. Shivaram, learned senior counsel for Appellant Assessee and Mr. Sham Walve, learned standing counsel Revenue for Respondents. 2 This Appeal has been preferred by Assessee under section 260A of Income Tax Act 1961 (briefly, Act hereinafter) against order dated 09.12.2016 passed by Income Tax Appellate Borey 1/6 spb/ 4.1itxa1148-17.doc Tribunal, Bench "B", Mumbai (the Tribunal for short) in Income Tax Appeal No. 4389/Mum/2014 for assessment year 2006-07. 3 Appeal has been preferred by Appellant on following questions stated to be substantial questions of law : (a) Whether on facts and in circumstances of case and in law, order of Tribunal is perverse inasmuch as it holds that projects of Appellant were approved much before 1 April 2004 without adjudicating Ground Nos.1 and 2 as raised by Appellant on merit ?. (b) Whether on facts and in circumstances of case and in law, amendment to section 80-IB(10)(b) vide Finance (No.2) Act, 2004 that substituted section 80-IB(10) as it stood then and relaxed condition imposed by section 80-IB(10)(b) by introducing proviso to section 80-IB(10)(b) is clarificatory and retrospective in nature and has retrospective operation ?. (c) Whether on facts and in circumstances of case and in law, order of Tribunal is perverse inasmuch as it does not consider ratios laid down in case laws of co-ordinate benches of Income Borey 2/6 spb/ 4.1itxa1148-17.doc Tax Appellate Tribunal, Mumbai against doctrine of `stare decisis ?. (d) Whether on facts and in circumstances of case and in law, order of Tribunal is perverse inasmuch as it violates principles of natural justice by referring to and relying upon numerous case laws that were not relied upon by Revenue during course of hearing and hence Appellant was given no opportunity to rebut or distinguish same ?. 4 In proceedings held on 15.10.2019 this Court, after noting grievance of Appellant, was of prima-facie view that manner of disposing of Appeal by Tribunal was not proper. Accordingly, it was observed that matter may be remanded back to Tribunal for fresh hearing and disposal in accordance with law. 5 Having regard to observations made in order dated 15.10.2019 relevant portion of same is extracted hereunder : 2. basic grievance of Appellant is that impugned order of Tribunal has been passed in breach of principles of natural justice. This for two reasons, one decisions Borey 3/6 spb/ 4.1itxa1148-17.doc relied upon by Tribunal of its own (not cited at bar) in impugned order were not brought to notice of Appellant at any time, before passing of impugned order. This resulted in order adverse to Appellant without Appellant having opportunity to address Tribunal on inapplicability of decisions to facts of this case. Thus, in effect order without hearing. second reason is that Tribunal did not deal with decisions relied upon by Appellant in support of its case. This even though impugned order records decisions of its Co- ordinate Benches relied upon by Appellant. This not dealing with same by pointing out how decisions would not apply to facts of case, leads to order prima facie being bad as order without reasons. 4. Prima facie, this manner of disposing appeals by Tribunal is not expected of it and cannot stand to scrutiny of law and justice. Thus, if above contentions are not shown by Respondent as incorrect, rather than admitting appeal it may be appropriate to set aside impugned order and restore appeal to Tribunal for fresh disposal. 6 Dr. Shivaram, learned counsel, has taken us through impugned order and submitted that Tribunal has referred to more than 50 judgments of Borey 4/6 spb/ 4.1itxa1148-17.doc various courts; not relied upon either by assessee or by Revenue, to great prejudice of assessee. 7 Mr. Walve, learned standing counsel Revenue submitted that on similar issue this court has admitted Income Tax Appeal No. 653 of 2012 (Ramesh Gunshi Dedhia vs. Income Tax Officer) vide order dated 08.08.2014. 8 In response Dr. Shivaram, learned counsel for Appellant submits that there is CBDT Notification No. 2 of 2011 dated 05.01.2011 which clarifies that projects covered by section 80IB(10) of Income Tax Act, 1961 would be eligible for deduction under said provision from assessment year 2005-06 on-wards. In Ramesh Gunshi Dedhia s case this notification was not available before Tribunal as it was issued afterwards. That was reason why Appeal has been admitted by this court. He further submits that in later assessment years Tribunal has relied upon said notification of CBDT and granted relief to Appellant. 9 Be that as it may, having heard learned counsel for parties and having perused Borey 5/6 spb/ 4.1itxa1148-17.doc impugned order passed by Tribunal, we are of view that impugned order is required to be set aside for re-hearing of appeal in accordance with law after giving further opportunity of hearing to parties. 10 Accordingly, impugned order dated 09.12.2016 passed by Tribunal in ITA No. 4389/Mum/2014 for assessment year 2006-07 is set aside and matter is remanded back to Tribunal for fresh hearing and decision. 11 It is made clear that we have not expressed any opinion on merit and all contentions are kept open. 12 Appeal is accordingly disposed of. Digitally signed by Shalikram P. Shalikram Borey P. Borey Date: 2020.02.05 11:31:27 +0530 (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.) Borey 6/6 Bhavya Construction Co. v. Asst. Commissioner of Income-tax, Circle-21(1), Mumbai & Anr
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