Mr. Walve, Learned Standing Counsel Revenuesubmitted That On Similar Issue This Court Has Admittedincome Tax Appeal v. Income Tax Ofïcer) Vide Or

spb/ 4.1itxa1148-17.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1148 OF 2017 Bhavya Construction Co. … Appellant. V/s. Asst. Commissioner of Income TaxCircle 21(1), Mumbai & Anr. ...Respondents. --- Dr. K. Shivaram, Advocate a/w. Ms. Neelam Jadhav,Advocate for the Appellant.Mr. Sham Walve, Advocate a/w. Mr. Pritesh Chatterjeefor Respondents. --- CORAM : UJJAL BHUYAN AND MILIND N. JADHAV,JJ. PC : DATE : JANUARY 30, 2020. 1Heard Dr. K. Shivaram, learned senior counselfor the Appellant / Assessee and Mr. Sham Walve,learned standing counsel Revenue for the Respondents. 2This Appeal has been preferred by theAssessee under section 260A of the Income Tax Act1961 (briefly, “the Act” hereinafter) against the orderdated 09.12.2016 passed by the Income Tax Appellate 1/6 spb/ 4.1itxa1148-17.doc Tribunal, Bench "B", Mumbai (“the Tribunal” for short) inIncome Tax Appeal No. 4389/Mum/2014 for theassessment year 2006-07. 3The Appeal has been preferred by theAppellant on the following questions stated to besubstantial questions of law : (a) Whether on the facts and in thecircumstances of the case and in law, the orderof the Tribunal is perverse inasmuch as it holdsthat the projects of the Appellant wereapproved much before 1 April 2004 withoutadjudicating Ground Nos.1 and 2 as raised bythe Appellant on merit ?. (b) Whether on the facts and in thecircumstances of the case and in law, theamendment to section 80-IB(10)(b) videFinance (No.2) Act, 2004 that substitutedsection 80-IB(10) as it stood then and relaxedthe condition imposed by section 80-IB(10)(b)by introducing the proviso to section 80-IB(10)(b) is clarificatory and retrospective in natureand has retrospective operation ?. (c) Whether on the facts and in thecircumstances of the case and in law, the orderof the Tribunal is perverse inasmuch as it doesnot consider the ratios laid down in the caselaws of the co-ordinate benches of the Income 2/6 Tax Appellate Tribunal, Mumbai against thedoctrine of `stare decisis’?. (d) Whether on the facts and in thecircumstances of the case and in law, the orderof the Tribunal is perverse inasmuch as itviolates the principles of natural justice byreferring to and relying upon numerous caselaws that were not relied upon by the Revenueduring the course of the hearing and hence theAppellant was given no opportunity to rebut ordistinguish the same ?. 4In the proceedings held on 15.10.2019 thisCourt, after noting the grievance of the Appellant, wasof the prima-facie view that the manner of disposing ofthe Appeal by the Tribunal was not proper.Accordingly, it was observed that the matter may beremanded back to the Tribunal for a fresh hearing anddisposal in accordance with law. 5Having regard to the observations made inthe order dated 15.10.2019 relevant portion of thesame is extracted hereunder : “2. The basic grievance of the Appellant isthat the impugned order of the Tribunal hasbeen passed in breach of principles of naturaljustice. This for two reasons, one the decisions 3/6 4In the proceedings held on 15.10.2019 thisCourt, after noting the grievance of the Appellant, wasof the prima-facie view that the manner of disposing ofthe Appeal by the Tribunal was not proper.Accordingly, it was observed that the matter may beremanded back to the Tribunal for a fresh hearing anddisposal in accordance with law. 5Having regard to the observations made inthe order dated 15.10.2019 relevant portion of thesame is extracted hereunder : “2. The basic grievance of the Appellant isthat the impugned order of the Tribunal hasbeen passed in breach of principles of naturaljustice. This for two reasons, one the decisions 3/6 relied upon by the Tribunal of its own (not citedat the bar) in the impugned order were notbrought to the notice of the Appellant at anytime, before the passing of the impugned order.This resulted in order adverse to the Appellantwithout the Appellant having an opportunity toaddress the Tribunal on the inapplicability ofthe decisions to the facts of this case. Thus, ineffect an order without hearing. The secondreason is that the Tribunal did not deal with thedecisions relied upon by the Appellant insupport of its case. This even though theimpugned order records the decisions of its Co-ordinate Benches relied upon by the Appellant.This not dealing with the same by pointing outhow the decisions would not apply to the factsof the case, leads to the order prima facie beingbad as an order without reasons. 4.Prima facie, this manner of disposingappeals by the Tribunal is not expected of itand cannot stand to the scrutiny of law andjustice. Thus, if the above contentions are notshown by the Respondent as incorrect, ratherthan admitting the appeal it may beappropriate to set aside the impugned orderand restore the appeal to the Tribunal for freshdisposal.” 6Dr. Shivaram, learned counsel, has taken usthrough the impugned order and submitted that theTribunal has referred to more than 50 judgments of spb/ various courts; not relied upon either by the assesseeor by the Revenue, to the great prejudice of theassessee. 7Mr. Walve, learned standing counsel Revenuesubmitted that on similar issue this court has admittedIncome Tax Appeal No. 653 of 2012 (Ramesh GunshiDedhia vs. Income Tax OfÏcer) vide order dated08.08.2014. 8In response Dr. Shivaram, learned counsel forthe Appellant submits that there is a CBDT NotificationNo. 2 of 2011 dated 05.01.2011 which clarifies thatprojects covered by section 80IB(10) of the Income TaxAct, 1961 would be eligible for deduction under the saidprovision from the assessment year 2005-06 on-wards.In Ramesh Gunshi Dedhia’s case this notification wasnot available before the Tribunal as it was issuedafterwards. That was the reason why the Appeal hasbeen admitted by this court. He further submits thatin later assessment years Tribunal has relied uponthe said notification of the CBDT and granted relief tothe Appellant. 9Be that as it may, having heard learnedcounsel for the parties and having perused the 5/6 Digitallysigned byShalikram P.ShalikramBoreyP. BoreyDate:2020.02.0511:31:27+0530 Borey 4.1itxa1148-17.doc spb/ impugned order passed by the Tribunal, we are of theview that the impugned order is required to be setaside for re-hearing of the appeal in accordance withlaw after giving further opportunity of hearing to theparties. 10 Accordingly,impugnedorderdated09.12.2016 passed by the Tribunal in ITA No.4389/Mum/2014 for the assessment year 2006-07 is setaside and the matter is remanded back to the Tribunalfor fresh hearing and decision. 11It is made clear that we have not expressedany opinion on merit and all contentions are kept open. 12Appeal is accordingly disposed of. (MILIND N. JADHAV, J.)(UJJAL BHUYAN, J.) ….. 6/6