V E R S U S v. M. Salgaoncar And Bros. Ltd.vasco Da Gama,Goa –

1 TXA 56.2010 IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 56 OF 2010 The Commissioner of Income Tax,Aayakar Bhavan,Patto Plaza,Panaji- Goa. …. Appellant. V e r s u s M/s. V. M. Salgaoncar and Bros. Ltd.Vasco da Gama,Goa – 403802. ….. Respondent Ms. Amira Razaq, Standing Counsel for the Appellant.Mr. A.F. Diniz with Mr. Ryan Menezes, Advocates for the Respondent. Coram:- M. S. SONAK & C. V. BHADANG, JJ. Date:- 07th November, 2019. JUDGMENT (Per M. S. Sonak, J) Heard the learned counsel for the parties. 2.This matter was heard yesterday and was posted today being part heard. 2 TXA 56.2010 3.This appeal was admitted on 11/8/2010 on the following substantial question of law: a)Whether in the facts and in the presentcircumstances of the case, the ITAT was right indiminishing the revenue's appeal based on the standtaken in the earlier part of the order that truck hirecharges etc. are not to be treated as receipts within themeaning of Section 80 HHC (baa) and hence decliningto give a decision whether net or gross receipts ar to beexcluded while applying provisions of 80HHCexplanation to (baa) where in the law is settled and theHon'ble High Court Bombay in the case of CIT Vs.Asian Star Company has held that the gross receipts areto be excluded while applying the provisions of section80HHC of the IT Act? 4.Mr. Diniz, the learned counsel for the respondent points out that this appeal is directed against the common judgment and order dated26/2/2010 made in I.T.A nos. 283/2004 and I.T.A no.279/2004. Hepoints out that I.T.A No.283/2004 was instituted by the respondent andI.T.A No.279/2004 was instituted by the Revenue against common judgment and order dated 12/8/2004 passed by the Commissioner 3 TXA 56.2010 (Appeals). He points out that both parties had agreed before the ITATthat in the event I.T.A no. 283/2004 instituted by the respondent hereinwere to be decided in favour of the respondent herein, than, I.T.Ano.279/2004 instituted by the Revenue would not survive. 5.Mr. Diniz, further points out that I.T.A no.283/2004 was in factdecided by the ITAT in favour of the respondent herein and consequentlyeven I.T.A no.279/2004 instituted by the Revenue was dismissed as notsurviving. 6.He points out that as against the common order, in the two appeals,the Revenue instituted two Tax Appeals, namely, I.T.A no.59/2010 againstthe order in I.T.A no.283/2004 and the present I.T.A no.56/2010 inI.T.A no.279/2004. 7.Mr. Diniz points out that I.T.A no.59/2010 was since withdrawnby the Revenue on 5/11/2019, since the tax effect involved in the saidappeal was less than rupees one crore. He, therefore, submits that the 4 TXA 56.2010 present appeal which is again, against the same order will clearly notsurvive. 8.In fact, we had posted this matter today under the caption “partheard”, in order to enable the learned counsel for the Revenue to takeinstructions in this regard. 9.The record indicates that the Assessing Officer in the present casehad refused to grant any deduction claimed for by the assessee. Therefore,aggrieved by the same, the assessee had instituted an appeal before theCommissioner (Appeals). 10. The Commissioner (Appeals) partly held in favour of the assessee. The Commissioner (Appeals) held that the assesseee was entitled todeductions, but on the net basis and not on gross basis. 11. The assessee thereupon instituted I.T.A no.283/2004 urging that the deductions in their entirety ought to have been granted. The Revenue 5 TXA 56.2010 also instituted I.T.A no.279/2004 urging that the grant of even limitedrelief by the Commissioner (Appeals) was not warranted in the facts andcircumstances of the case. 9.The record indicates that the Assessing Officer in the present casehad refused to grant any deduction claimed for by the assessee. Therefore,aggrieved by the same, the assessee had instituted an appeal before theCommissioner (Appeals). 10. The Commissioner (Appeals) partly held in favour of the assessee. The Commissioner (Appeals) held that the assesseee was entitled todeductions, but on the net basis and not on gross basis. 11. The assessee thereupon instituted I.T.A no.283/2004 urging that the deductions in their entirety ought to have been granted. The Revenue 5 TXA 56.2010 also instituted I.T.A no.279/2004 urging that the grant of even limitedrelief by the Commissioner (Appeals) was not warranted in the facts andcircumstances of the case. 12. The two appeals were taken up together by the ITAT and in para 3of the judgment and order dated 26/2/2010, it is clearly recorded thatboth parties agreed that in the event of deciding the aforementioned issuesin favour of the assessee, departmental appeal does not survive forconsideration. 13. Ultimately, by the impugned judgment and order dated 26/2/2010the assessee's appeal was allowed in its entirety and therefore nothing reallysurvived in ITA no.279/2004 instituted by the revenue. 14. By virtue of withdrawal of Tax appeal no.59/2010, obviously , theview taken by the ITAT in so far as the assessee's case is concerned, hasattained finality, may be not on law, but inter partes. In thesecircumstances, it is obvious that the present appeal will not survive. The 6 TXA 56.2010 grant of any relief in this appeal will not enure for the benefit of theRevenue since, on the main issue, the order of the ITAT has alreadyattained finality inter partes. 15. Besides, we note that the valuation in this appeal is indicated as“above five lakhs”. There is no clarity as to what is the precise valuation.The valuation in Tax Appeal no.59/2010 which was since withdrawn, wasRs.50 lakhs. Prima facie, we are unable to comprehend as to how the taxeffect for the present appeal will exceed Rs.50 lakhs. This is, therefore, acase where the Revenue, on its own, could have withdrawn this appealtaking into consideration the circular of CBDT dated 8/8/2019. 16. Be that as it may, for the aforesaid reasons, this appeal does notsurvive. The same is accordingly disposed off. 17. After this order was dictated, Ms. Razaq states that the departmentis considering recall of the order dated 5/11/2019 in TXA No.59/2010 asthere might be some mistake in so far as the valuation is concerned. As 7 TXA 56.2010 and when such an application is made in the said appeal, there is no doubtthat the same will be considered in accordance with law. For the present,however, we dispose of the present appeal for the aforesaid reasons. C. V. BHADANG, J. M. S. SONAK, J. ap/-