IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nINCOME TAX APPEAL NO. 1009 OF 2017
\nBhavya Construction Co. \u2026 Appellant.
\nV\/s.
\nAsst. Commissioner of Income Tax
\nCircle 21(1), Mumbai & Anr. …Respondents.
\n—
\nDr. K. Shivaram, Advocate a\/w. Ms. Neelam Jadhav,
\nAdvocate for the Appellant.
\nMr. Sham Walve, Advocate a\/w. Mr. Pritesh Chatterjee
\nfor Respondents.
\n—
\nCORAM : UJJAL BHUYAN AND
\nMILIND N. JADHAV,JJ.
\nDATE : JANUARY 30, 2020.
\nPC :
\n1 Heard Dr. K. Shivaram, learned senior counsel
\nfor the Appellant \/ Assessee and Mr. Sham Walve,
\nlearned standing counsel Revenue for the Respondents.
\n2 This Appeal has been preferred by the
\nAssessee under section 260A of the Income Tax Act
\n1961 (briefly, \u201cthe Act\u201d hereinafter) against the order
\ndated 09.12.2016 passed by the Income Tax Appellate
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\nTribunal, Bench “B”, Mumbai (\u201cthe Tribunal\u201d for short) in
\nIncome Tax Appeal No. 4390\/Mum\/2014 for the
\nassessment year 2007-08.
\n3 The Appeal has been preferred by the
\nAppellant on the following questions stated to be
\nsubstantial questions of law :
\n(a) Whether on the facts and in the
\ncircumstances of the case and in law, the order
\nof the Tribunal is perverse inasmuch as it holds
\nthat the projects of the Appellant were
\napproved much before 1 April 2004 without
\nadjudicating Ground Nos.1 and 2 as raised by
\nthe Appellant on merit ?.
\n(b) Whether on the facts and in the
\ncircumstances of the case and in law, the
\namendment to section 80-IB(10)(b) vide
\nFinance (No.2) Act, 2004 that substituted
\nsection 80-IB(10) as it stood then and relaxed
\nthe condition imposed by section 80-IB(10)(b)
\nby introducing the proviso to section 80-IB(10)
\n(b) is clarificatory and retrospective in nature
\nand has retrospective operation ?.
\n(c) Whether on the facts and in the
\ncircumstances of the case and in law, the order
\nof the Tribunal is perverse inasmuch as it does
\nnot consider the ratios laid down in the case
\nlaws of the co-ordinate benches of the Income
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\nTax Appellate Tribunal, Mumbai against the
\ndoctrine of `stare decisis\u2019?.
\n(d) Whether on the facts and in the
\ncircumstances of the case and in law, the order
\nof the Tribunal is perverse inasmuch as it
\nviolates the principles of natural justice by
\nreferring to and relying upon numerous case
\nlaws that were not relied upon by the Revenue
\nduring the course of the hearing and hence the
\nAppellant was given no opportunity to rebut or
\ndistinguish the same ?.
\n4 In the proceedings held on 15.10.2019 this
\nCourt, after noting the grievance of the Appellant, was
\nof the prima-facie view that the manner of disposing of
\nthe Appeal by the Tribunal was not proper.
\nAccordingly, it was observed that the matter may be
\nremanded back to the Tribunal for a fresh hearing and
\ndisposal in accordance with law.
\n5 Having regard to the observations made in
\nthe order dated 15.10.2019 relevant portion of the
\nsame is extracted hereunder :
\n\u201c2. The basic grievance of the Appellant is
\nthat the impugned order of the Tribunal has
\nbeen passed in breach of principles of natural
\njustice. This for two reasons, one the decisions
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\nrelied upon by the Tribunal of its own (not cited
\nat the bar) in the impugned order were not
\nbrought to the notice of the Appellant at any
\ntime, before the passing of the impugned order.
\nThis resulted in order adverse to the Appellant
\nwithout the Appellant having an opportunity to
\naddress the Tribunal on the inapplicability of
\nthe decisions to the facts of this case. Thus, in
\neffect an order without hearing. The second
\nreason is that the Tribunal did not deal with the
\ndecisions relied upon by the Appellant in
\nsupport of its case. This even though the
\nimpugned order records the decisions of its Coordinate
\nBenches relied upon by the Appellant.
\nThis not dealing with the same by pointing out
\nhow the decisions would not apply to the facts
\nof the case, leads to the order prima facie being
\nbad as an order without reasons.
\n4. Prima facie, this manner of disposing
\nappeals by the Tribunal is not expected of it
\nand cannot stand to the scrutiny of law and
\njustice. Thus, if the above contentions are not
\nshown by the Respondent as incorrect, rather
\nthan admitting the appeal it may be
\nappropriate to set aside the impugned order
\nand restore the appeal to the Tribunal for fresh
\ndisposal.\u201d
\n6 Dr. Shivaram, learned counsel, has taken us
\nthrough the impugned order and submitted that the
\nTribunal has referred to more than 50 judgments of
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\nvarious courts; not relied upon either by the assessee
\nor by the Revenue, to the great prejudice of the
\nassessee.
\n7 Mr. Walve, learned standing counsel Revenue
\nsubmitted that on similar issue this court has admitted
\nIncome Tax Appeal No. 653 of 2012 (Ramesh Gunshi
\nDedhia vs. Income Tax Officer) vide order dated
\n08.08.2014.
\n8 In response Dr. Shivaram, learned counsel for
\nthe Appellant submits that there is a CBDT Notification
\nNo. 2 of 2011 dated 05.01.2011 which clarifies that
\nprojects covered by section 80IB(10) of the Income Tax
\nAct, 1961 would be eligible for deduction under the said
\nprovision from the assessment year 2005-06 on-wards.
\nIn Ramesh Gunshi Dedhia\u2019s case this notification was
\nnot available before the Tribunal as it was issued
\nafterwards. That was the reason why the Appeal has
\nbeen admitted by this court. He further submits that
\nin later assessment years Tribunal has relied upon
\nthe said notification of the CBDT and granted relief to
\nthe Appellant.
\n9 Be that as it may, having heard learned
\ncounsel for the parties and having perused the
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\nimpugned order passed by the Tribunal, we are of the
\nview that the impugned order is required to be set
\naside for re-hearing of the appeal in accordance with
\nlaw after giving further opportunity of hearing to the
\nparties.
\n10 Accordingly, impugned order dated
\n09.12.2016 passed by the Tribunal in ITA No.
\n4390\/Mum\/2014 for the assessment year 2007-08 is set
\naside and the matter is remanded back to the Tribunal
\nfor fresh hearing and decision.
\n11 It is made clear that we have not expressed
\nany opinion on merit and all contentions are kept open.
\n12 Appeal is accordingly disposed of.
\n(MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.)
\n\u2026..
\nBorey 6\/6<\/p>\n","protected":false},"excerpt":{"rendered":"
The basic grievance of the Appellant is that the impugned order of the Tribunal has been passed in breach of principles of natural justice. This for two reasons, one the decisions relied upon by the Tribunal of its own (not cited at the bar) in the impugned order were not brought to the notice of the Appellant at any time, before the passing of the impugned order. This resulted in order adverse to the Appellant without the Appellant having an opportunity to address the Tribunal on the inapplicability of the decisions to the facts of this case. Thus, in effect an order without hearing<\/p>\n