9911796707
Advanced Search 
TMI Blog2012 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowance made under Section 14A. 2. The ITAT has decided this issue against the assessee following the judgment of Special Bench in the case of M/s Daga Capital Management Private Limited, 216 SOT 603(Mum) and set aside the matter to the Assessing Officer to make the disallowance under Section 14A in accordance with the ratio of the Special Bench. The relevant observation and the finding of the ITAT in Department's appeal for the sake of ready reference is reproduced hereunder :- "4. On a careful consideration of facts and circumstances and perusal of records and orders of authorities below we are of the view that this issue has been elaborately discussed by the Special Bench of the Tribunal in the case of Daga Capital Management Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tistical purposes." and in assessee's appeal is :- "7. The first ground in the assessee's appeal is directed against the CIT(A)'s order in sustaining the addition made u/s14A of the Act to the extent of `.75,000/- being the other expenditure incurred for earning dividend income. This issue has been considered by us in the Revenue appeal and same has been remitted back to the file of the Assessing Officer for denovo consideration. For parity of reasoning, ground No.1 raised in assessee's appeal is allowed for statistical purposes." 3. The assessee has submitted before us that the judgment of the Special Bench in the case of Daga Capital Management Private Limited (supra) has been overruled by the Jurisdictional High Court in the case of Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the assessment year 2008-2009: (vi) Even prior to the assessment year 2008-2009, when rule 8D was not applicable, the Assessing Officer has to enforce the provisions of sub-section (1) of section 14A. For that purpose, the Assessing Officer is duty bound to determine the expenditure which has been incurred in relation to income which does not form part of the total income under the Act. The Assessing Officer must adopt a reasonable basis or method consistent with all the relevant facts and circumstances after furnishing a reasonable opportunity to the assessee to place germane material on the record; (vii) The proceedings for the assessment year 2002-03 shall stand remanded back to the Assessing Officer. The Assessing Officer shall dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj). It as held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" under Section 254 (2) of the Act and could be corrected by the Tribunal. 42. In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple of law that the decision of the jurisdictional High Court or the Hon'ble Supreme Court rendered prior to or even subsequent to the order, will constitute mistake apparent from the record within the meaning of Section 254 (2) and it should be corrected by the Tribunal. 7. We accordingly, modify the directions and the order of the ITAT passed in ITA No.7231/Mum/2005 & 6801/Mum/2005 vide order dated 23rd January, 2009 and direct that Assessing Officer will not apply Rule 8D in view of the judgment of the Hon'ble jurisdictional High Court in the case of Godrej and Boyce Mfg. Co. Ltd. (supra) and work out the disallowance under Section 14A in consonance with the ratio laid down therein by adopting reasonable basis in accordance with the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
