Itxa/4339/2010 Of The Commissioner Of Income Tax - 11 Mumbai v. Star India Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4339 OF 2010 Commissioner of Income Tax-11V/s. M/s.Star India Pvt. Ltd.(formerly known as News Television India Ltd.) ....Appellant ....Respondent Mr.Vimal Gupta for the Appellant. Mr.Porus Kaka, Senior Counsel with Mr.Dinesh Chawla i/b Mr.Atul K. Jasani for the Respondent. CORAM : S.J. VAZIFDAR AND M.S. SANKLECHA, JJ. DATE : 20TH JUNE, 2012. P.C. :- 1.This is an appeal under section 260-A of the Income Tax Act, 1961. The appellant has challenged an order dated 18.1.2010 passed by the Income Tax Appellate Tribunal (ITAT)in M.A. No.638/Mum/2009 in ITA No.1863/Mum/2005. 2.We dismiss this appeal only on the ground that it is not maintainable. The matter in a nutshell is this. The order impugned in this appeal was passed only in the M.A. No.638/Mum/2009, which was taken out in the main appeal before the ITAT being ITA No.1863/Mum/2005. The appellant has filed an appeal against the order passed in ITA No.1863/Mum/2005. The same was admitted by this Court. Thereafter pursuant to an order passed by the Supreme Court, the same was transferred to the Supreme Court. We have come to the conclusion that the impugned order in the M.A. No.638/Mum/2009 merely clarifies the order in the appeal. In our view therefore, the appellant's remedy is to take necessary steps in the earlier appeal. To entertain this appeal would constitute an interference with the proceedings in the earlier appeal, which now stands transferred to the Supreme Court. 3.The matter pertains to the assessment year 2001-2002. ITA No.1863/Mum/2005 was disposed of by the order of the ITAT dated 18.9.2008, by which the appellant's appeal was allowed in part. The appellant filed ITA No.1119 of 2009 before this Court, which was admitted by an order dated 14.8.2009. The appellant had raised seven questions of law. The Division Bench however, framed only the following question of law :- “Whether on the facts and in the circumstances of the case and in law, the ITAT is correct in directing to reduce 90% of the “NET” commission received by the assessee from the profits of the business for computation of deduction u/s. 80 HHF ? The Supreme Court by an order dated 16.11.2011 in Transfer Petition (Civil) No.1338 of 2011, directed the appeal to be transferred to the Supreme Court to be heard along with SLP (C) No.32450 of 2010. 4.In view of the contentions raised by the appellant, the respondent filed the said M.A. No.638/Mum/2009 in ITA No.1863/Mum/2005 contending that the Tribunal in the order dated 18.9.2008 in the appeal had not not adjudicated certain grounds raised by the appellant, which are the subject matter also of this appeal. The ITAT by the impugned order recorded the grounds and held that a plain reading of the original order suggested that the ITAT had concluded that the assessee is entitled to deduction under section 80 HHF and hence the AO was directed to compute the deduction. It was also observed that the finding was however, not explicit in the order. The ITAT therefore, rectified the order by expressly stating that the said grounds in the assessee's appeal was allowed and that the assessee would be entitled to deduction under section 80 HHF. As regards certain other grounds, the ITAT observed that it had not “specifically disposed of these grounds” and therefore, expressly stated their decision. Paragraphs 4 and 5 of the order read as under :- “4.A plain reading of the above suggests that this Bench of the Tribunal had concluded that the assessee is entitled to deduction u/s 80HHF and hence the AO was directed to compute the quantum of deduction. It is true that this finding is not explicit in the order. Thus we rectify the order by stating that the ground No.5(a) of the assessee's appeal is allowed. The assessee shall be entitled to deduction u/s 80 HHF. As regards certain other grounds, the ITAT observed that it had not “specifically disposed of these grounds” and therefore, expressly stated their decision. Paragraphs 4 and 5 of the order read as under :- “4.A plain reading of the above suggests that this Bench of the Tribunal had concluded that the assessee is entitled to deduction u/s 80HHF and hence the AO was directed to compute the quantum of deduction. It is true that this finding is not explicit in the order. Thus we rectify the order by stating that the ground No.5(a) of the assessee's appeal is allowed. The assessee shall be entitled to deduction u/s 80 HHF. 5.Coming to ground No.5(e) and 5(f), we find that the Tribunal has not specifically disposed of these grounds and hence a mistake has crept into the order of the Tribunal.” 5.A fair reading of the order of the ITAT dated 18.1.2010 in M.A. No.638/Mum/2009 indicates that it was merely in the nature of a clarification and not a fresh adjudication. The order in the appeal dated 18.9.2008 is therefore, only clarified by the order dated 18.1.2010. In that event, it is not open to the appellant to file a separate/fresh appeal against the clarificatory order. Any grievance in respect thereof, must be adjudicated in the appeal from the original order. 6.The appeal from the original order, as we have stated earlier, stands transferred to the Supreme Court. It is not permissible for this Court to entertain this appeal as it would interfere with the proceedings pending in the Supreme Court. 7.In the circumstances, we dismiss this appeal as not maintainable. We have not considered the appeal on merits. (M.S. SANKLECHA, J.) (S.J. VAZIFDAR, J.)