First Five Questions, The Division Bench Observed As Follows v. Pnp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION (LODG.) NO.39 OF 2012ININCOME TAX APPEAL NO.3111 OF 2009 The Commissioner of Income Tax-4versusM/s. Kotak Securities Ltd. ..Petitioner. ..Respondent. ..... Mr. A.R. Malhotra for the Petitioner.Mr. F.V. Irani with Mr. A.K. Jasani for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, ANDR.D. DHANUKA, JJ. 12 July 2013. P.C. : A review has been sought of a judgment dated 21 October 2011 of the Division Bench consisting of Hon'ble Mr. Justice J.P. Devadhar and Hon'ble Mr. Justice A.A. Sayed. The presiding Judge has since demitted office while Mr. Justice A.A. Sayed is presently assigned to sit at the Bench at Aurangabad. Hence, the Review Petition has been placed before this Bench in pursuance of the administrative directions of the Hon'ble the Chief Justice. 2.The Appeal out of which the Review Petition arises related to Assessment Year 2005-06. Six questions of law were raised in the Appeal. As regards the first five questions, the Division bench observed as follows : “Although six questions of law are raised by the revenue in this appeal, learned counsel for the revenue does not press the first five questions as the said questions stand answered against the revenue by the decisions of the Apex Court in the case of Techno Shares and Stocks Ltd. V/s. CIT reported in [2010] 327 ITR 323 (S.C.) and T.R.F. Ltd. V/s. CIT reported in [2010] 323 ITR 397 (SC).” 3.At the hearing, counsel appearing on behalf of the Review Petitioner states that the review is pressed as regards the disposal of the first four questions. A statement was made before the Court by counsel appearing on behalf of the Revenue that those questions are covered by the decision of the Division Bench of the Supreme Court in Techno Shares and Stocks Ltd. v. CIT[1]. At the hearing, it is common ground that the first four questions as raised are in fact not covered by the judgment of the Supreme Court in Techno Shares (supra) insofar as they pertain to the membership card of the Bombay Stock Exchange which was acquired prior to 1 April 1998. In the circumstances, having regard to the admitted position, the statement which was made on behalf of the Revenue was on a mis-appreciation of the position in law and we accordingly recall the judgment dated 21 October 2011 insofar as the disposal of the first four questions is concerned in relation to the membership card of the Bombay Stock Exchange which was acquired prior to 1 April 1998. The Appeal shall now be set down for hearing before the regular Bench in accordance with the assignment of work. (Dr. D.Y.Chandrachud, J.) ( R.D. Dhanuka, J.)