INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI STATEMENT SHOWING THE LIST OF THIRD MEMBER CASES PENDING AS ON 16.09.2013

INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI STATEMENT SHOWING THE LIST OF THIRD MEMBER CASES PENDING AS ON 16.09.2013 Sr Appeal No. Name of the Bench Points involved To whom REMARKS No Assesses assigned MUMBAI BENCH 1. ITA Nos. 525 to Mrs. Sumanlata S/Shri. 1. "Whether, non-issuance of Zonal Vice- Fixed on 530/Mum/2008, Bansal, Mumbai 1. R.S.Padvekar, the notice as provided in Sub.- President(MZ) 26.09.2013 A.Ys.1999-2000 to J.M. sec.(2) to Section 143 of the I.T. 2004-05 2.B.Ramakotaiah, Act in the case of assessment A.M. framed u/sec.153A, in consequence of search under sec. 132, is merely an irregularity and the same is curable?" 2. "Whether ,on the facts of the case, failure on the part of the Assessessing Officer (A.O.) to issue notice to the assessee as per provisions of Sub-sec.(2) to Section 143 shall have the effect of rendering the entire assessment framed u/sec. 153A of the Act as null and void?" 2. ITA 5229/M/2004 M/s. Standard S/Shri. "Whether on the facts and Shri. R.S. Syal, After the & 5303/M/2004 Chartered Bank 1.R.S.Padvekar, circumstances of the case A.M. Disposal of MA A.Y. 1996-97 J.M. interest income of 2.Rajendra Rs.73,92,16,611/- Singh, A.M. (Rs.39,23,71,781+Rs.34,68,44, 830) is asseable to tax in the year under consideration?" 1 3. MA No. M/s Amzel Ltd., S/Shri 1.Whether on the facts and Shri R.S. Syal, Fixed on 583/Mum/2012 Mumbai 1.D.Manmohan, circumstances discussed by the A.M. 04.10.2013 (VP). Tribunal in the appellate order, 2. Rajendra can it be said that the factual Singh,AM. errors pointed out by the assessee in the miscellaneous application will have any impact on the decision taken by the Tribunal or that the decision of the Tribunal would have been different if the correct facts had been considered. 2.Whether considering the fact that there is difference of opinion between the two Members as to whether the factual errors will have any impact on the decision of the Tribunal or not, can the order be recalled for fresh adjudication under section 254(2) under which, no debatable issues can be considered." 3.Whether on the facts and in the circumstances of the case, the order of the Tribunal dated 30.05.2013 deserves to be recalled or will it amount to review of the order?" 2 PUNE BENCHES 1. ITA No. M/s Audyogik S/Shri. 1. "In the facts and Zonal Vice- Fixed on 1712/PN/2007, Shikshan Mandal, 1. Mukul Shrawat, circumstances of the case, President(MZ) 01/11/2013 for A.Y. 2004-05. Pune, J.M. whether the property of the trust 2.D. Karunakara i.e. car, be held `made Rao, A.M. available' for the use of the trustee, specified person u/s 13(3) of the Income Tax Act 1961?" 2. "In the facts and circumstances of the case, whether the expression `made available for the use of' trustee ipso facto be understood to have been deemed used or applied for the benefit of the said trustee, with or without the actual use or application of the property of the trust i.e. car for personal benefit of the trustee in view of section 13(2) of the Income Tax Act 1961?" 3. "In the facts and circumstances of the case, whether the case of the assessee falls within the ambit of the provisions of clause (b) of section 13(2) of the Income tax Act 1961?" 4. "If the answers to above questions at sr. No. (1) to (3) are affirmative, whether the denial of benefits of section 11 be restricted to such income of the trust used or applied directly or indirectly for the benefits of trustee or, in alternative, the total income of the trust is not entitled for the benefits of section 11 of the Act. 3 DELHI BENCHES 1. IT(SS)A No. Mr. Vijay Bansal, S/Shri 1. "Whether the addition on Hon'ble Vice- 438/Del/2005 & Haryana. 1. Hari Om account of undisclosed President (BZ) IT(SS)A.22/Del/06 Maratha,JM. investment on the investment 2.T.S.Kapoor, on the education of daughter of AM. the assessee, in the block period, found to have been made has been correctly sustained or it deserves to be deleted in the given facts and the circumstances of the case? 2. Whether an addition made and sustained on account of undisclosed investment found in the construction of the property deserves to be deleted or sustained in the given facts and circumstances of the case? 3. Whether any addition can be made in the business income of the assessee on the basis of evidence gathered behind the back of the assessee by opening a floppy found and seized during the search conducted u/s 132(1) of the Act or not? 4. Whether the cash found during search from a brief-case stands explained, in the given facts and circumstances of the case or not? 4 2. IT(SS)No. 26 & M/s Haryana S/Shri "Whether on the facts and Shri U.B.S. Bedi, 33/Del/2010 Paneer Bhandar, 1.B.R.Jain,A.M. circumstances of this case, the J.M. Delhi. 2.Rajpal requisites as envisaged by Yadav,J.M. Section 158 BD of the IT Act have not been satisfied before issuing notice under section 158BD of the Act consequently requiring quashing of such notice?" LUCKNOW BENCHES 1. ITA No. Ms Rajya Krishi S/Shri 1."Whether" the CIT(A) has Shri.Barathvja Hearing is 141,142,143 & Utpadan mandi 1. I.S.Verma,J.M. jurisdiction to decide the Sankar,Vice awaited. 144/LKW/2009 Parishad, 2. N.K.Saini, A.M. assessee's petition for stay or President (as per C.O.No.06 to Lucknow recovery of demand during the dt.03.04.2013) of 09/LKW/2009 pendency of assessee's appeal the Hon'ble A.Y.2001-02,2002- furnished under section 246A of President) 03,2003- the Act?" 04 &2006-07 2. "If the CIT(A) has jurisdiction to decide the assessee's petition for stay of recovery of demend , than under which provisions of law the CIT(A) will pass such an order i.e. what will be the nature or status of such order passed by the CIT(A)?" 3. "Whether, such order (supra) passed by the CIT(A) is appealable before the Tribunal or not i.e. can such an order be appealed against before the Tribunal by way of an appeal under section 253 of the Act, or can be challenged only before the Hon'ble High Court by way of writ petition?" 4. "If such an order(Supra) is found to be appealable before the Tribunal, then can the Tribunal entertain such an appeal against such order without there being 5 appeal before it against the order of CIT(A) in appeal against the order of the Assessing Officer or other orders appealable under section 246A of the Act, as the case may be, for the reason that the CIT(A) has not preferred to decide the assessee's appeal pending before him?" 2. ITA No. M/s Zazsons S/Shri. "Whether, on the facts and the Shri. S. V. Adj.to 21st & 219/LKW/2009 and Exports Ltd. 1. I.S.Verma, J.M. circumstances of the case as Mehrotra, A.M. 22nd October, C.O.No.23/Lck/ Kanpur 2.N.K.Saini, A.M. well as in law, the Revenue's (As per order 2013 2009 A.Y.2005-06 ground Nos.3 to 6 be allowed or dt.21.03.2013 of not?" the Hon'ble President) 3. SPNo.03/Lkw/2012 Smt.Uma Pandey, S/Shri. SP No.03/Lkw/2012 Shri.G.D.Agarwal, Hearing is (A/o ITA Sunil Kumar Hon'ble Vice- awaited. 188/Lkw/2010) Yadav,J.M. "Whether, the stay earlier President (DZ and A.Y. 2007-08 2.B.R.Jain,A.M. granted by the Tribunal can be LZ) SP.No.04/Lkw/ M/s.State Urban extended till disposal of the 2012 Development appeal in a case where the (A/o ITA Agency. appeal has been heard by the 103/Lkw/2012) Tribunal and is pending with A.Y. 2007-08 the Members for order?" Sd/- J.M. "Whether, on the peculiar facts, circumstances of this case and in law, there is any justification in extending the stay of the disputed demand that already had run beyond 365 days or the application so made by the assessee is liable to be rejected?" Sd/- A.M. SP No.04/Lkw/2012 "Whether, under the facts and 6 circumstances of the case, the outstanding demand can be stayed outrightly or subject to payment of part of demand in instalments as proposed?" Sd/- Sd/- J.M. A.M 4. ITA No. Smt. Uma Pandey S/Shri. "Whether, under the facts and Shri.G.D.Agarwal, Hearing is 188/Lkw/2010 1.Sunil Kumar circumstances of the case, the Hon'ble Vice- awaited. A.Y. 2007-08 Yadav,J.M. payments received by the President (DZ/LZ) 2.B.R.Jain,A.M. assessee from M/s. Amit Poly Yarn Ltd. (now known as M/s Amitech Ind. Ltd) are receipt as an advance against sales made during the course of commercial transactions and therefore provisions of section 2(22)(e) of the Income-tax Act, 1961 are not attracted to these payments or the aforesaid payments are purely an advance/loan made to the assessee, attracting the provisions of section 2(22)(e) of the Act? "Whether, the issue of allotment of shares for Rs.10 lakhs can be restored to the Assessing Officer to investigate the fact as to whether the allotment of shares was unilateral act of the company i.e M/s. Amitech Ind. Ltd. or the allotment was done at the instance of the assessee in order determine the applicability of provisions of section 2(22)(e) of the Act to the 7 benefit accrued to the assessee on allotment of shares or addition of Rs.10 lakhs can be confirmed by holding that benefit accrued to the assessee on allotment of shares attracts provisions of section 2(22)(e) of the Act on the basis of material available on record?" Sd/- Sd/- J.M. A.M JABALPUR BENCH 1. ITA No. Shri. Anil S/Shri "Whether on the facts and the Hon'ble Fixed on 327/Jab/2009 Jaiswal, Jabalpur 1.I.S.Verma, J.M. circumstances of the case as President, 18.09.2013 A25/10-2004 2.B.R.Kaushik, well as in law, the CIT(A) was I.T.A.T. A.M. justified in deleting the addition made, while making assessment under section 153A read with section 143(3) of the Act on protective basis?" KOLKATA BENCH 1. ITA Nos. M/s Shyam Steel S/Shri "Whether in the facts and Hon'ble Vice- Not yet fixed 65/Kol/2010, & Industries Ltd., 1.George Mathan, circumstances of the case the President 655/Kol/2011. Kolkata. J.M. power subsidy received by the Chennai/Kolkata A.Y.2006-07 2007- 2.C.D.Rao,A.M. assessee is capital in nature or Zone. 08 revenue in nature ?" 2. ITA No. M/s Ceean S/Shri "Whether or not, on the facts Hon'ble Vice- Not yet fixed 1120/Kol/2012. Commerce (P) 1.Promod Kumar, and in the circumstances of the President A.Y.2003-04. Ltd., Kolkata. A.M. case and in accordance with the Chennai/Kolkata 2.Mahavir Singh, low, the value of sale Zone. J.M. consideration to be adopted for computing capital gains in the hands of the assessee should be taken at Rs.32,84,300/- or at Rs. 56,00,100/-? As the amendment in section 50C by Finance (N0.2) Act, 2009, w.e.f. 1.10.2009, is to be treated as clarificatory in nature and retrospective in application". 8 3. ITA NO. Sri Partha Mitra, S/Shri. 1."Whether in view of the Hon'ble Vice- Not yet fixed 848/Kol/2012 Kolkata. 1.Pramod Kumar, provision of section 254(2A) of President AM. the Act as also the proviso Chennai/Kolkata 2.George Mathan, thereto and the decision of the Zone. JM. Hon'ble Supreme Court in the case of Chinnayappa Mudaliar can the decision of the Coordinate Bench of this Tribunal in the case of Multiplan India Pvt. Ltd. as also the decision of the Hon';ble Madhya Pradesh High Court in the case of Estate of Late Tukojirao Holkar - Vs.- CWT be held to be applicable on the facts of the case" 2."Whether in terms of the provisions of Rule 19(2) of the Income Tax Appellate Tribunal Rules read with Rule 24 & 25 (Appellate Tribunal) Rules, 1963, an appeal can be dismissed in limine without addressing the merits of the appeal just because the appellant does not appear"? 3."Whether the decision in the case of Multiplan India Pvt. Ltd. 38 ITD 320 (Del.) will hold good in law as on i.e. even after insertion of Rule 24 & 25 of Appellate Tribunal Rules, 1963.? 4."Whether it is open to the Tribunal to dismiss an appeal, without addressing itself to the merits of issues in appeal, because one of the parties has not appeared before the Tribunal"? 9 PATNA BENCH (Circuit Bench, Ranchi) 1 MA No. Shri. Ghasi Ram S/Shri. "Whether, on the facts and in Hon'ble Zonal Pending for 11 (Pat) / 2007 Agarwal, Ranchi 1. B. R. Mittal, the circumstances of the case, Vice President hearing. arising out in J.M. the application of the (KZ) IT(SS)A No. 2. B.K. Haldar, department for recall of the 45/Pat/05) A.Y. 86- A.M. order of the Tribunal dt. 21st 87 to 97-98 June, 2006 passed in IT(ss)A No. 91(Pat)/05 to delete the amount of Rs.45,823/- is to be allowed as held by the learned Accountant Member or is to be rejected as held by the learned Judicial Member." 2 Int. Tax Appeal M/s Coalsesce S/Shri. "Whether, in the facts and Hon'ble Zonal Pending for Nos. 06 to Investment (P) 1. B. R. Mittal, circumstances of the case, the Vice-President hearing. 08/Pat/06 Ltd., Ranchi J.M. assessee was liable under the A.Ys.1997-98 to 2. B.K. Haldar, Interest Tax Act to pay interest 1999-2000 A.M. tax on the gross interest received on the loans and advances granted by it during the impugned assessment years." GUWAHATI BENCHES 1 ITA 47, 48 and M/s Purbanchal S/Shri. 1. "Whether, on the facts and Hon'ble Not yet fixed. 49(Gau)/2004 Safety Glassess 1.Hemant circumstances of the case the President, A.Y.1996-97, 1997- (P) Ltd., Sausarkar, J.M. Ld. CIT(A) was justified in I.T.A.T. 98 & Guwahati. 2.B.R.Kaushik, deleting the additions made by 1998-99 A.M. the A.O. under section 69 of the Act as undisclosed investment amounting to Rs. 9,21,461/-, Rs.2,20,990 and Rs.3,66,526/- for the assessment years 1996- 97, 1997-98 and 1998-99 respectively on the ground that the reassessments made by the A.O. for the assessment years in 10 question were based on the information received from Bureau of Investigation (Economic Offence) (Guwahati) and that the information was based on material and documentary evidence to substantiate the assessments?" 2. "Whether on the facts and in the circumstances of the case the order of the Ld.CIT(A) is required to be set aside with the direction to decide the issue afresh after giving proper opportunity to the assessee on the relevant information received by the A.O. on 25.02.2003 from the Bureau of Investigation (Economic Offence)?" 3. "Whether, on the facts and in the circumstances of the case, the Ld. Judicial Member was justified in holding that the issuance of notice u/s 148 cannot hold good and, therefore, the assessment u/s 143(3) r.w.s. 147 of the Act is illegal, unjustified and void or the Ld. Accountant Member was justified in holding that the reopening of assessment and subsequent assessment made by the A.O. is justified?" As per the order dt.16.04.2008 of the Hon'ble President "All the three questions would be considered u/s 255(4) by the President." 11 2. ITA Nos. 96, 97 & Brooke Bond S/Shri. 1. "Whether, the learned Shri.Pramod Adjourned Sine 98(Gau)/2002 India Ltd., 1.Hemant CIT(A) has erred in law and in Kumar,A.M. -die A.Y.1990-91, 1991- Calcutta. Sausarkar, J.M. facts in directing the A.O. to 92, 1992-93 2.B.R.Kaushik, consider the income from A.M. interest and dividend as business income for the purpose of eligible deduction u/s 32AB of the Act, in view of the decision in the case of CIT Vs. Dinjoy Tea Estate (P) Ltd. (1997) 224 ITR 263 (Gau), 271 ITR 123 (Cal), 273 ITR 470 (Mad) and 224 ITR 263 (Gau)?" 2. "Whether, this Bench of the Tribunal working under the jurisdiction of the Hon'ble Guwahati High Court can allow the claim of the assessee that income from interest and dividend is to be taken as business income for the purpose of eligible deduction u/s 32 AB of the Act in view of the decisions in the cases of (i) Britania Industries Ltd. Vs. JCIT (2004) 271 ITR 123 (Cal) and (ii) DCIT Vs.United Nilgiris Tea Estate Co. Ltd.(2005) 273 ITR 470 (Mad)?" 3. "Whether, on the facts and circumstances of the case the claim of expenditure of Rs.94,363/- and Rs.1,26,718/- attributable to the foreign tour of Mrs. R. Sen, wife of the director, Mr. D. Sen, was not wholly and exclusively for the purpose of business?" 12 4. "Whether, in view of change of stand by the assessee regarding nature and purpose of expenditure taken before the Ld.CIT(A) for the first time the issue was required to be restored to the A.O. for fresh adjudication after enquiring into the claim of the assessee?" 3. ITA No. Shri. Shyam S/Shri. (1) "Whether, on the basis of Hon'ble Not yet fixed. 09/Gau/2006 Sunder Malpani, Hemant Sausarkar, facts and in the circumstances President, A.Y.2002-2003 Jorhat J.M. of the case, the assessee is I.T.A.T. B.R.Kaushik, entitled to deduction u/s 80IB?" A.M. (2) "Whether, in view of the decision in the case of CIT Vs Down Town Hospital Ltd. 251 ITR 683 (Gau), the issue was required to be restored to the learned CIT(A) for fresh adjudication after ascertaining whether all the conditions u/s 80 IB are fulfilled?" 4. ITA 161/Gau/2003 M/s 3R, S/Shri 1. "Whether in the facts and Shri. Not yet fixed Block period f Gauwahati. 1. Hement circumstances of these cases the D.K.Tyagi,J.M. 1989-90 to 1998-99 Sausarkar, J.M. block assessments can be & 1999-2000. 2. B.R.Kaushik, considered invalid?" A.M. 2. "Whether, in the facts and ITA 162/Gau/2004 M/s Panbazar circumstances of these cases it Block period 1989- Diagnostic can be held that the A.O. did 90 to 1998-99 & Centre, Guwahati. not bring on record the prima 1999-2000 facie evidence for invoking ------ do ------- jurisdiction and initiation of proceedings u/s 158 BD of the Act?" 13 CHENNAI BENCH 1. ITA 759/Mds/2008 M/s Laurel S/Shri. 1. For that on the facts and Shri Apparels, 1. N.S.Saini,A.M. circumstances of the case and N.Barathvaja Tirupur. 2. Challa Nagendra considering the decision of the Sankar, Vice- Prasad,J.M. Hon'ble AP High Court in the President, (BZ) case of Spectra Shares and Scrips Pvt. Ltd Vs. CIT [2013] 354 ITR 35(AP) when the CIT has held the order of assessment passed by the Assessing Officer as erroneous as well as prejudicial to the interests of the Revenue on the ground of non-following of the decision of jurisdictional High Court, can such revisional order passed u/s 263 by the CIT be upheld by the Tribunal on the ground that the order passed by the Assessing officer was erroneous and prejudicial to the interests of the Revenue on the ground that assessment order was passed by the Assessing officer without application of mind? 2. For that on the facts and circumstances of the case, the Tribunal, without going through the assessment records, can arrive at the conclusion that the assessment order was passed by the Assessing Officer without calling for any details with regard to the claim made by the assessee u/s 80IB of the Act in respect of duty drawback nor made any enquiry before allowing such deduction while completing the assessment, especially when the authority whom power of revision is vested by the law had not so found or alleged? 14 3. For that on the facts and circumstances of the case, when the CIT in exercise of power available with him u/s 263 of the Act has directed to withdraw the deduction allowed u/s 80IB in respect of duty drawback and has not restored the issue back to the file of the Assessing Officer for passing the order afresh after application of mind, can the Tribunal conclude that the CIT was of the opinion that the assessment order passed by the Assessing Officer was erroneous on the ground of non-application of mind by the Assessing Officer in respect of the issue involved? 4.For that on the facts and circumstances of the case, the order of the CIT should have been upheld by the Tribunal as opined by the ld. JM or to have been held as untenable as opined by the AM.? BANGALORE BENCH 1. MP.No Shri Mahesh S/Shri/Smt. 1."Whether, on the facts and in Hon'ble Vice- Fixed on 41/Bang/2010 Hasmukh Boriya, 1.P.Madhavi Devi, the circumstances of the case, President (BZ) 08/11/2013 (ITA 773/B/10) J.M. there is any mistake apparent 2. A.Mohan from record rectifiable u/s Alankamony, 254(2) of the IT Act, when the A.M. Tribunal adjudicated the Revenue's appeal on the sole ground of limitation in favor of the Revenue, but not remitted back the issue to CIT(A) for adjudication on merits when such an issue of remission/merits was not before the Tribunal either by a prayer 15 submission or cross objection by the Assessee/AR other than the only argument to defend his ground on technicality?" 2."Whether, the inclusion of a copy of a favourable judgment to the assessee on the issue of merits in the paper book produced before the ITAT would amount to be a ground or submission enabling the assessee to invoke the rectification jurisdiction of the Tribunal, when during the course of the hearing there were no such arguments or submission on merits/remission before the Tribunal by the Assessee/AR?" AHMEDABAD BENCH 1. ITA.No.462/Ahd/02 Redex Protech S/Shri, "Whether, the learned Hon'ble Vice Date awaited C.O. 28/Ahd/2002, Pvt. Ltd., 1. D.K.Tyagi,JM. Commissioner of Income-tax President ITA No.823/Ahd/04 2. A.Mohan (A)-IX, Ahmedabad has erred ( Ahd. Zone) Alankamony,AM. in law and on facts in entertaining the appeal in gross violation of provisions of section 249(4) of the Income- tax Act, 1961 even as the assessee had not paid admitted tax on the returned income? 16 CHANDIGARH BENCH 1. ITA No. Shri . R.K.Garg S/Shri . Per J.M. Hon'ble Vice Adjourned 142/CHD/1999 1.M.A.Bakshi, VP 1. "Whether, on the facts and in President sine-die A.Y.97-98 2. N.K.Saini. A.M. the circumstances of this case, (Chandigarh) ITA 550, 489, 586, the guarantee commission 587 & 588/CHD/99 received by the assessees is a A.Y.87-88, 90-91, revenue receipt or a capital 98-99, 1999-2000 & receipt?" 2000-2001 2. "Whether, the decision of the Tribunal in assessee's own case for the assessment year 88-89 to the effect that the guarantee commission is a revenue receipt ITA No. Smt. Sunaina is inapplicable in view the 143/CHD/1999 Garg decision of the Hon'ble Madras A.Y.97-98 High Court in the case of CIT v. ITA Nos. 589, 590 Pondicherry Industrial & 591/CHD/2002 Promotion Development & A.Y. 1998-99, Investment Corporation Ltd. 1999-2000, (supra), and the decision of 2000-2001 Delhi High Court in the case of Suessen Textile Bearings Ltd. ITA 503/CHD/2002 Shri . R.K.Garg, etc. v. Union of India etc. A.Y. 1997-98 & Sons(HUF) (supra)?" 3. "Whether, on the facts and in the circumstances of the case, the additional ground raised by the revenue for the assessment year 90-91 only deserves to be admitted and matter for all the assessment years remitted to the CIT(A) for giving an opportunity to the AO to distinguish the two High Courts cases, referred to above notwithstanding the fact that both the Members of the Bench have decided the issue relating to assessability of the guarantee commission on merits?" 17 Per A.M. 1. "Whether, on the facts and in the circumstances of the case, it could be held that the guarantee commission received by the assessees against their personal assets was a capital receipt?" 2. "Whether, on the facts and in the circumstances of the case and also in law, the Ld. CIT(A) should have provided and opportunity of being heard to the Assessing Officer when there was a specific direction by the Tribunal to do so, before arriving at a conclusion on the basis of judgment of Hon'ble Delhi High Court in the case of Suessen Textile bearing Ltd. and others V Union of India, CC2 JJX 0082 and Hon'ble Madras High Court in the case of CIT V. Pondicherry Indl Promotion Development and Investment Corp. Ltd. (2000) 245 ITR 859, that the amount received by assessees was a capital receipt. 18 AMRITSAR BENCH 1. IT(SS)A No. Sh.Vinod Goel S/Shri Shri H.S.Sidhu. Zonal Vice Pending for 14/ASR/2005. 1. H.S. Sidhu, 1. "Whether, on the facts President(CZ) fixation J.M. and in the circumstances of IT(SS)A M/s Sidhant 2.Mehar present case, the issues in the No.13/ASR/2005. Deposits & Singh,A.M. present appeals are covered by Advances(P) Ltd. the decision of the Hon'ble IT(SS)A M/s Trimurti Supreme Court in the case of No.12/ASR/2005 Deposits & Manish Maheshwary Vs. ACIT Advances (P) Ltd. (2007) 289 ITR 341 (SC) and the decision of the Hon'ble jurisdictional High Court in Income tax Appeal No.519 of 2009 decided on 20-7-2010 in the case of CIT-I, Ludhiana Vs. Mridula Prop. Dhruv fabics, Ludhiana?" 2. "Whether, on the facts and in the circumstances of the present case, non-production of records by the revenue in spite of various opportunities given to them, benefit should go to the revenue or the asessee?" 3. "Whether, on the facts and in the circumstances of the present case, it is mandatory a pre-requisite that the satisfaction to be recorded in the cases of persons searched before issuance of notice under section 158 BD of the Income tax Act. 1961 to the assesse i.e. other person?" Shri. Mehar Singh,AM. 1. "Whether on the facts and on law, valid Block Assessments can be cancelled, 19 on the ground of assumed non- production of record indicating recording of satisfaction u/s 158BD, in a case where such satisfaction is duly evidenced by documents available in the paper book filed by the Deptt. and reproduced verbatim in the order dated 06.12.2006 passed by the Bench and subsequent M.A.dated 21.01.2009, dismissed by the Bench, without even considering such satisfaction?' 2. " Whether, on the facts and on law Block Assessments can be cancelled by applying the decision of jurisdictional High Court, relied upon by the assessee, which lays down the law that satisfaction under section 158BD be recorded before the conclusion of the Block Assessments under section 158BC of the Act, in the absence of vital details of dates of completion of such block assessment being determinative factor, in determining the applicability of the said decision, where the parties to the disputes failed to furnish such dates?" 20 JAIPUR BENCH 1. ITA No. M/s. Mahaveer S/Shri Shri R.K. Gupta, JM. Hon'ble Vice Pending 937/Jp/2011 Exports, Jaipur. 1.R.K.Gupta, JM. 1. "Whether, in the facts and President 2.Sanjay circumstance, the addition of (Ahmedabad Arora,A.M. Rs.3,58,455/- made by one of Zone) the partners S mt.Kanta Nowlkha is liable to be deleted or to be confirmed?" 2. "Whether, in the facts and circumstances, the addition of Rs. 1,00,000/- each in the name of Shri Nem Chand Nowalkha and Shri Pankaj Ghiya of the assessee firm made as capital contribution is liable to be deleted or liable to be set aside to the file of the Assessing Officer?" 3. "Whether, in view of the decision of Hon'ble Jurisdictional High Court in case of Kewal Krishan & Partners, 18 DTR 121 (Raj.) the entire capital contribution made/contributed prior to commencencement of business in liable to be deleted or to be confirmed in part and partly to be set aside to the file of Assessing Officer ?" Shri Sanjay Arora,AM. 1. "Whether, section 68 of the Income-tax Act, 1961 can be invoked where the assessee fails to satisfactorily explain the nature and source of a case credit found recorded by him in his books of account for the 21 relevant year, or is the Revenue also required to establish that the assessee had in existence a source of income before the date on which such cash credit was recorded, i.e., in order to treat the same as unexplained u/s. 68?" 2. "Whether, the addition of the impugned sums as unexplained credits u/s.68 can be deleted on the sole ground that the assessee had no source of income prior to the date on which the same were found recorded in the assessee's books of account, notwithstanding the fact that it has completely failed to discharge the burden of satisfactorily explaining the nature and source thereof?" 3. "Whether, the view that a cash credit recorded in the books of account of a partnership firm ostensibly as capital contributed by a partner cannot be treated as unexplained u/s.68 in the hands of the firm even if the assesseefirm fails to satisfactorily explain the nature and source thereof, and more particularly if its fails to adduce evidence to establish that the alleged capital was actually contributed by the partner, is sustainable in law in view of the decision by the Hon'ble 22 jurisdictional high court in CIT v. Kishorilal Santoshilal (1995)216 ITR 9 (Raj.)?" 4.1 "Whether, can capital be contributed by a partner to a partnership-firm prior to the coming into existence of the said firm? In any case, whether the claim of capital contribution by way of transfer of goods on June 1,2006 can be accepted in view of the fact that the assessee-firm itself came into existence only on July 11,2006?" "Is the remand in the case of two cash credits of Rs. 1 lac each in the name of two partners justified under the facts and circumstances of the case, even as contemplated by the Hon,ble jurisdictional high court in the case of Rajshree Synthetics (P) Ltd. v. CIT (2002) 256 ITR 331 (Raj.)?" 2. ITA No.363 & M/s Escorts Heart S/Shri Shri R.K.Gupta,J.M. Hon'ble Vice Adjourned 326/Jp/2011 Institute & 1. R.K.Gupta, 1. Whether in the facts and President (Delhi sine-die. A.Y.2008-09. Research JM. circumstances of the case, the Zone) Centre,Jaipur. 2. SanjayArora, provisions of section 194J are ITA Escort Heart AM. applicable on the payments No.1123/Jp/2011 Super Speciality made to blood bank ?" A.Y.2009-10. Hospital 2. Whether in the facts and Ltd.,Jaipur. circumstances of the case, the provisions of section 192 or section 194J are applicable in case of retainer doctors ? 3. Whether in the facts and circumstances of the case, on the mark up/profits earned by 23 Fortis Health World Ltd. (FHWL) on sale of medicines to the assessee is a commission chargeable to tax under section 194H or is a sale on which provisions of section194H are not applicable? 4. Whether in the facts and circumstances of the case, on the mark up/profits the provisions of section 194C can be invoked by the Tribunal where neither this is a case of department nor of the assessee ? Shri Sanjay Arora, AM. 1.1 Whether the payments to the blood banks for carrying out investigation procedures, are, in the facts and circumstances of the case, made by the assessee- hospital or by its patients? 1.2 Whether, while deciding an issue under appeal, the tribunal required to apply its independent mind thereon, without being influenced by the decision by the first appellate authority for a subsequent year, particularly when the same was not pressed during hearing and, accordingly, the parties not heard thereon? 2. I am in agreement with the Question No. 2 as proposed by my ld. Brother, JM. 3.1 Whether, can on the admitted set of facts brought on record by the parties, the inferential finding/s by the 24 Appellate Tribunal differ from that of either party before it, or is it to necessarily match therewith? Further, is not the tribunal duty bound to, in deciding an issue before it, apply the law as applicable to the facts found by it, including such inferential finding/s? 3.2 Whether, in the facts and circumstances of the case, the supply of medicines by Fortis Health World Ltd.(FHWL) to the assessee-company for its IPD Pharmacy, constitutes an independent business being carried on by FHWL, or is the said supply only the result of the work carried out by its relevant manpower, whose services stand already contracted to the assessee company and subject to tax deduction u/s. 194C of the Act? 3. ITA Smt. Meena Baid, S/Shri Whether in the facts and Shri R.S. Syal, Adjourned No.534/JP/2011 Jaipur. 1.R.K.Gupta,J.M. circumstances of the case, the A.M. sine-die. 2.Sanjay Arora, order of Ld. CIT(Appeals) is A.M. liable to be confirmed or to be reversed? Sd/- (R.K.Gupta,J.M.) 1. Is the decision in the instant appeal, in the facts and circumstances of its case, governed, or liapble to be so, by the principle or doctrine of precedence by the decision by the Tribunal in the case of ITO 25 Vs. Ratan Lal Baid(in ITA No. 572/JP/20-09 dated 30-10- 2009), which proceeds on the premises that the impugned transactions (in that case) are genuine and, further, form part of the assessee's business, or not so? 2. "Whether, in the facts and circumstances of the instant case, the impugned transactions are collusive and sham, so that loss ascribed thereto is to be ignored, and is in any case a capital loss or a speculative loss, or not so ?" Sd/- Sanjay Arora,A.M. 4. ITA No. 224/JU/04 M/s.Hindustan S/Shri 1. Whether on the facts and in Hon'ble Vice ITA No. 298/JU/04 Zinc Ltd., 1.R.K.Gupta,J.M. the circumstances of the case, President (Delhi Udaipur. 2.Sanjay Arora, the issue in respect of Zone) A.M.S/Shri disallowance of Rs. 1,65,50,475/- on account of prior period expenses is liable to be restored to the file of the A.O. or liable to be confirmed.? 2.Whether on the facts and in the circumstances of the case, the issue in respect of disallowance of Rs. 304,82 lacs out of extra-ordinary items relating to the amount written off as a result of the closure of Degana Tungsten Mine Unit is liable to restored back to the file of the A.O. or liable to confirmed ? 26 3. Whether on the facts and in the circumstances of the case, the issue in respect of deleting the disallowance of Rs. 6,88,62,383/- being the Mine Development Expenses is liable to be deleted or to be set aside to the file of the ld. CIT(A)? 4. Whether on the facts and in the circumstances of the case, the issue in respect of deleting the disallowance of Rs. 3.50 crores made by the A.O. u/s 40A(9) of I.T. Act is liable to be deleted or to be set aside to the file of the A.O.? Sd/- (R.K.Gupta,J.M.) 1.(a) Whether the finding by the authorities below that the assessee's claim qua prior period expenses (for Rs.165.50 lakhs) does not represent any disputed liability crystallized during the relevant year is correct on facts and has also not been suitably met before the Tribunal, as was also found by it for the immediately two preceding years, meriting its dismissal, or it is not so, so that the matter would require a set aside to the file of the assessing authority for verification? (b) In any view of the matter, is there any scope for application of the decisions in the case of 27 CIT v. Nagri Mills Co. Ltd.[1958] 33 ITR 681 (Bom.) and CIT v. Vishnu Industrial Gases (P).Ltd. (Del.,in ITA No.229/1988 dated 06/5/2008), relied upon by the assessee, in the facts and circumstances of the case? 2.(a) Does the question as to whether the assessee's Unit(Degana Mine) constitutes a distinct and separate business or not, a relevant factor in deciding its claim in respect of `Extraordinary Items', made at Rs. 304.82 lakhs? (b) Whether the assessee's said claim can, in any case, be decided on the basis of the material on record, or it required to be set aside back to the file of the Assessing Officer for fresh determination and adjudication? 3.(a) Whether, the adjudication of the assessee's claim in respect of `Mine Development Expenses' (for Rs.688.62 lakhs.) made in two separate sums of Rs. 568.07 lakhs and Rs. 120.55 lakhs, is , in the facts and circumstances of the case, to be made considering it as a single claim, or separately? (b) Whether, in any view of the matter, the said issue warrants being set aside back to the file 28 of the A.O. for considering the factual aspects of the case as well as the decision by the Tribunal for the immediately two preceding years, particularly for A.Y. 1996-97 (vide order in ITA No.46/JU/2004 dated 30.3.2009), and a decision in light thereof, as well as the law as explained by the Hon'ble courts of law, as in the case of CIT v. Pioneer Minerals [1992] 107 CTR (Raj.) 230, or warrants being allowed as claimed, i.e., under section 37(1) of the Act, in full? 4. Whether the issue qua the disallowances under section 40A(9) of the Act (at Rs.350 lakhs) is to be set aside for passing a speaking order in accordance with law after considering the facts of the case, as also decided by the Tribunal for immediately two preceding years, of is to be allowed in the facts and circumstances of this year? 5. ITA No. M/s Grass Field S/Shri "Whether on the peculiar facts Hon'ble Vice 730/JU/2011 Farms & Resorts 1.B.R.Jain,AM. and circumstances of this case, President (Delhi Pvt. Ltd.,Jaipur. 2. V.Durga Rao, there is any justification in Zone) JM. sustenance of penalty imposed under section 271(1) ( c) of the Act?" 29 JODHPUR BENCH 1. ITA No.362(JU)/10 Smt. Supriya S/Shri "Whether, on the facts and Hon'ble Vice- Fixed to Kanwar, Jodhpur. 1. JoginderSingh, circumstances of the case, solitary President 03/10/2013 J.M. transaction of purchase and sale of (Mumbai Zone) 2. K.G.Bansal, the same agricultural land with A.M. standing crops situated beyond the prescribed municipal limits, amounts to adventure in the nature of trade?" Sd/- (Joginder Singh,JM) "Whether, on the facts and in the circumstances of the case and sale of five pieces of agricultural land with standing crop, by way of separate conveyance deeds, beyond the prescribed distance from any municipal council, amount to transactions on capital account or adventure in the nature of trade?" Sd/- (K.G.Bansal) A.M. RAJKOT BENCH 1. MA. Nos. 61 to Shambhubhai S/Shri "Whether on the facts and Hon'ble Vice Adjourned 66/Rjt/2010(A.O. of Mahadev Ahir, 1.T.K.Sharma, JM. circumstances of the case, all the President, sine-die. ITA Nos. 637 to Gandhidham. 2.D.K.Srivastava, six Miscellaneous Applications (Ahmedabad 639 & 707 to AM. filed by the Revenue should be Zone) dismissed or be allowed?" 709/Rjt/2010) 30 INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI LIST OF THIRD MEMBER CASES HEARD AND PENDING FOR ORDERS AS ON 16.09.2013. Sr. Appeal No. Name of the Bench Points involved To Whom Remarks No Assessee assigned GUWAHATI BENCH 1. ITA No. 25/Gau/2005 M/s Baid S/Shri. "Whether, on the facts and in the Shri.Pramod Heard on A.Y.1996-97 Commercial 1.Hemant Sausarkar, circumstances of the case the transport Kumar,A.M. 04.04.2012 Enterprises Ltd., J.M. subsidy is to be treated as capital in nature in Guwahati. 2.B.R.Kaushik, A.M. view of decisions in the following cases- i) CIT Vs Assam Asbestos Ltd. 215 ITR 847 Heard on 2. ITA No. 20/Gau/2005 M/s Shiva Sakti (Gau) 04.04.2012 A.Y.2001-2002 Floor Mills (P) ii) Sahney Steel & Press Works Ltd. And Ltd., Tinsukia Others Vs CIT 228 ITR 253 (SC) C.O.No.02/Gau/2005 iii) DCIT Vs Assam Asbestos Ltd. (2003) 263 ITR 357 (Gau) M/s Virgo iv) CIT Vs Rajaram Maize Products Ltd. 251 Heard on 3. ITA No.165/Gau/2004 Cements Ltd., ITR 427(SC) and 03.04.2012 A.Y.2001-2002 Gauwahati. v) Sdarda Plywood Industries Ltd. Vs.CIT 238 ITR 354(Cal). MUMBAI BENCH 3. ITA 5724/M/2011 M/s. S/Shri. Shri . I.P.Bansal, J.M. Shri Heard on ITA 5163/M/2011 D.H.Securities 1.I.P. Bansal,J.M. U.B.S.Bedi, 13.09.2013 A.Y.2008-2009 Pvt.Ltd. 2.B.Ramakotaiah, Whether on the facts and in the J.M. A.M. circumstances of the case disallowance under section 14A of the Income Tax Act, 1961(the Act) can be made where dividend income has been earned on the shares held as stock in trade? Shri. Sanjay Arora, A.M. 1. Whether it is permissible for the Tribunal to base its' decision on the decisions by the co-ordinate benches which were neither cited nor referred to at the time of hearing, or even before the authorities below, 31 without confronting them to the parties, in view of the settled principles of natural justice, applied by the hon'ble jurisdictional high court in, inter alia, the case of Naresh K. Pahuja Vs. ITAT [2009] 224 CTR(B0m) 284? 2. Whether the judgment of the Hon'ble Karnataka High Court in CCI Ltd. Vs. Jt. CIT [2012] 250 CTR 291 (Kar), which has not considered the applicability of the judgment of the hon'ble jurisdictional high court in Godrej & Boyce Manufacturing Co. Ltd. Vs. Dy. CIT [2010] 328 ITR 81 (Bom) to the issue under appeal, can be followed, as it has been in the decisions referred to by the ld. J.M. in his dissenting order, or is the said judgment of the hon'ble jurisdictional high court, which has since been followed by the Hon'ble Calcutta high court in Dhanuka & Sons Vs. CIT [2011] 339 ITR 319 (Cal), continues to hold the field in respect of the issue under appeal? 3. Whether the decision by the Hon'ble Karnataka High Court in CCI Ltd. (supra) is the solitary judgment by a high court, as observed by the ld. JM in his dissenting order, notwithstanding the fact that the Hon'ble Calcutta high court has also dealt with the issue under appeal, considering the decision by the apex court in CIT Vs. Walfort Share and Stock Brokers P.Ltd. [2010] 326 ITR 1 (SC) (supra) as well as by the Hon'ble jurisdictional high court in Godrej & Boyce (supra)? 4. Whether the tribunal can be said to have taken a consistent view in the matter, as 32 observed by the ld. JM in his dissenting order, notwithstanding the fact that the tribunal has also, as in American Express Bank Ltd. (in ITA No. 5904 & 6022/Mum/2010 dated 08.08.2012) and Dy. CIT Vs. Damani Estated & Finance Pvt. Ltd. ( in ITA No. 3029/Mum/2012 dated 17.07.2013), following the Hon'ble jurisdictional high court in Godrej & Boyce (supra) and Hon'ble Calcutta high court in Dhanuka & Sons (supra), taken a view in conformity with the said judgments? 5. Whether the order as proposed by the A.M. is by culling out and based on the principles of apportionment governing the application of section 14A, as explained by the hon'ble court in Godrej & Boyce (supra), upholding the order by the tribunal passed following the decision in ITO Vs. Daga Capital Management Pvt. Ltd. (2009) 117 ITD 169 (Mum)(SB), or does the same represent an out of context reading of the said decision by the jurisdictional High Court, which is therefore not germane or relevant to the issue? 6. Whether, even on facts, can it be at all said that no expenditure in relation to the dividend income stands incurred by an assessee where the shares yielding such income are held as stock-in-trade? 33